Majority
In an action to recover damages for alleged breach of contract, fraud and false representation, the defendants appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated December 21, 1984, which denied their motion for summary judgment dismissing the complaint on the ground that the cause of action is based on an oral agreement subject to the Statute of Frauds.
Justice Weinstein has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2 [c]).
Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the complaint is dismissed.
The plaintiff alleged that in May 1978 he entered into an oral agreement with the defendants to treat orthodontic patients in the office of the defendants. This agreement allegedly contemplated a "permanent position to last as long as the plaintiff was physically capable”. The plaintiff further asserted that the defendants never intended to abide by the agreement, thus fraudulently inducing him to enter it. The plaintiff treated patients from June 1978, until February 11, 1981, when the defendants terminated his employment.
Prior to the service of their answer, the defendants sought dismissal of the complaint for failure to state a cause of action. However, Special Term denied the motion. After joinder of issue, the defendants further sought an order dismissing the complaint on the ground that the cause of action was based on an oral agreement which is unenforceable under the Statute of Frauds. By order dated December 21, 1984, Special Term denied defendants’ second motion, predicating its ruling solely on the basis that admissions in the pleading were sufficient to satisfy the memorandum requirement of the Statute of Frauds.
The defendants’ motion, made after joinder of issue, was one for summary judgment (see, CPLR 3212; Impastato v
Under certain circumstances, an action to recover damages for breach of an employment contract may be maintained, notwithstanding the indefinite term (see, Weiner v McGraw-Hill, Inc., 57 NY2d 458 ). However, unlike Weiner, we are not confronted with a situation where (1) the plaintiff was induced to leave his prior employment with the assurance that the defendant would not fire him without cause, (2) this assurance was incorporated into the employment application, and (3) employment was subject to the provisions in a handbook which stated that dismissal would be for just and sufficient cause only (Weiner v McGraw-Hill, Inc., supra, p 460 ). The plaintiff’s allegation that the defendants promised him a "permanent position to last as long as the plaintiff was physically capable”, is insufficient to bring this case within the limits of Weiner (see, O’Connor v Eastman Kodak, supra; Patrowich v Chemical Bank, supra, p 323; Utas v Power Auth., 96 AD2d 940 ; Toshiba Am. v Simmons, 104 AD2d 649 ; Gould v Community Health Plan, 99 AD2d 479 , supra; Sabetay v Sterling Drug, 114 AD2d 6 ).
The plaintiff’s additional allegations of fraud and false representation also do not make out a cause of action. It is well recognized that a cause of action to recover damages for fraud is not made out when the only fraud charged relates to
Cases cited
- Knickerbocker Field Club v. Site Selection Board 41 AD2d 539 at 540 p. 745
- Arentz v. Morse Dry Dock & Repair Co. 249 NY 439 p. 745
- Martin v. New York Life Insurance 148 NY 117 at 121 p. 745
- Parker v. Borock 5 NY2d 156 at 159 p. 745
- Gould v. Community Health Plan of Suffolk, Inc. 99 AD2d 479 p. 745
- Patrowich v. Chemical Bank 98 AD2d 318 at 323 p. 745
- Patrowich v. Chemical Bank 63 NY2d 541 p. 745
- Grozek v. Ragu Foods, Inc. 63 AD2d 858 p. 745
- Hill v. Westchester Aeronautical Corp. 112 AD2d 977 p. 745
- Weiner v. McGraw-Hill, Inc. 57 NY2d 458 p. 745
- Utas v. Power Authority 96 AD2d 940 p. 745
- Toshiba America, Inc. v. Simmons 104 AD2d 649 p. 745
- Sabetay v. Sterling Drug, Inc. 114 AD2d 6 p. 745
- C.B. Western Financial Corp. v. Computer Consoles, Inc. 122 AD2d 10 p. 746
- Miller v. Volk & Huxley, Inc. 44 AD2d 810 p. 746