69 A.D.2d 144 | N.Y. App. Div. | 1979
OPINION OF THE COURT
Has plaintiff stated a cause of action in tort in his action against his employer for wrongful discharge? That is the question in defendants’ appeal from a denial of their motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss the last four numbered causes of action in plaintiff’s complaint including a claim for punitive damages.
Plaintiff was vice-president and dean of Onondaga Community College until August 31, 1973 when his services under a five-year written contract were terminated by a letter sent to his attorney. His first cause of action is for breach of contract. Stripped of its extraneous assertions,
The second, third, fourth, and fifth numbered causes of action seek tort damages for various physical and mental
Defendants contend that the complaint contains no allegation of a breach of duty owed to plaintiff other than what arises from the contract itself and that, therefore, the last four causes of action should have been dismissed. We agree. The general rule is that "a breach of contract does not give rise to a tort action * * * in the absence of special additional allegations of wrongdoing” (Wegman v Dairylea Coop., 50 AD2d 108, 112; see North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Rich v New York Cent. & Hudson Riv. R. R. Co., 87 NY 382; Chase v United Hosp., 60 AD2d 558; Effective Communications West v Board of Coop. Educ. Servs., 57 AD2d 485; Egan Real Estate v McGraw, 40 AD2d 299; Reale v International Business Machs. Corp., 34 AD2d 936, affd 28 NY2d 912; Albemarle Theatre v Bayberry Realty Corp., 27 AD2d 172; Prosser, Law of Torts [4th ed], pp 613-618; 86 CJS, Torts, §§ 2, 3).
A duty extraneous to the contract often exists where the contract results in or accompanies some relation between the parties out of which arises a duty of affirmative care as in cases involving bailor and bailee, public carrier and passenger, innkeeper and guest, lawyer and client, or principal and agent (see Albemarle Theatre v Bayberry Realty Corp., supra; Prosser, Law of Torts [4th ed], pp 613-618). Although in the case at bar there was concededly no relationship between plaintiff
In Rich, in exchange for plaintiff’s surrender of riparian rights valuable to defendant, defendant agreed to restore its railroad depot to a location which would enhance the value of certain of plaintiffs property on Main Street. In defiance of the contract, defendant refused to open the depot and thereby greatly decreased the value of plaintiffs property and caused him to lose it in foreclosure. The court held that defendant’s refusal to perform the contract was part of a fraudulent scheme to decrease the value of plaintiffs property and force it into foreclosure for the purpose of removing plaintiff as an obstacle to defendant’s plans to close Main Street.
Similarly, in Albemarle Theatre v Bayberry Realty Corp. (27 AD2d 172, 177, supra) the court held that a cause of action in tort was pleaded which alleged that the defendants intentionally breached their contract to supply first run moving pictures to plaintiffs theatre as part of a conspiracy with
Here it is not claimed that defendants discharged plaintiff as part of larger fraudulent or malicious design to injure plaintiff or benefit defendants or in furtherance of some purpose which transcended the breach of the contract itself. No wrongful conduct except breach of the contract is asserted. No unlawful purpose except to dismiss the plaintiff is alleged.
Similarly the claim that defendants terminated his contract in contravention of subdivision 2 of section 6306 of the Education Law and 8 NYCRR 604.2 (b) (1) (formerly 605.2 [b] [1]) is but another ground for asserting that his discharge was unlawful.
Inasmuch as the only valid cause of action pleaded is for breach of contract, the motion to dismiss any claim for punitive damages should also have been granted (see John C. Supermarket, Inc. v New York Prop. Ins. Underwriting Assn., supra; Turski v Chiesa, 58 AD2d 828; Effective Communications West v Board of Coop. Educ. Servs., 57 AD2d 485, supra;
The order should be reversed and the motion granted.
Cardamone, J. P., Schnepp, Doerr and Wither, JJ., concur.
Order unanimously reversed, with costs, and motion granted.
. For example, plaintiffs complaint refers to his appointment (apparently at an earlier time) as a professor of psychology and to claimed tenure under such appointment. There is no request for reinstatement to such position and the appointment as professor of psychology does not appear to be a basis for plaintiffs claim for damages. No mention was made of the appointment in the briefs or on the argument. We, therefore, deem any claim based thereon to have been abandoned. Such claim, even if asserted, would have no effect on our decision herein.
. As noted in Prosser (Law of Torts [4th ed], p 618), "the affirmative act of discharging an employee is uniformly considered to be no more than nonperformance of the agreement to continue employment * * *. The question appears to be * * * whether the defendant’s performance, as distinct from his promise or his preparation, has gone so far that it has begun to affect the interests of the plaintiff beyond the expected benefits of the contract itself’.
. The complaint refers to the board resolution dated December 14, 1970 requiring that the board of trustees, in terminating the services of an administrator, "give to such person notice of such action which is equal to that given to a faculty member in terms of time,” and to the personnel policies approved July 10, 1972, which provided: "Termination of contract for members of the administration shall be consonant with such action as members of the faculty. (Board Resolution, December 14, 1970.)” By virtue of the foregoing, plaintiff claims to have the same rights as tenured faculty members under the two contracts between Onondaga Community College and the American Federation of Teachers for the periods of 1971-1972 and 1972-1974. These contracts in identical terms contain deadline dates for nonrenewal of contracts based on the number of years the faculty member has been employed and establish grievance procedures for termination of tenure.
. There is no question that the board of trustees has the power to delegate the authority to the president of the college to hire, promote and dismiss employees (Education Law, § 6306, subd 2; 8 NYCRR 604.2 [b] [1], formerly 8 NYCRR 605.2 [b] [1]; Carroll v Onondaga Community Coll., 52 AD2d 1063). It is doubtful, however, that the board of trustees by such delegation could have surrendered its ultimate responsibility for personnel appointments and policies (see Education Law, § 6306, subd 2; 8 NYCRR 604.2, 604.2 [a], formerly 8 NYCRR 605.2, 605.2 [a]).