78 A.D.2d 913 | N.Y. App. Div. | 1980
Appeals (1) from an order of the Supreme Court at Special Term, entered April 16,1979 in Rensselaer County, which denied a motion to dismiss the complaint, and (2) from an order of the Supreme Court at Special Term, entered March 4, 1980 in Rensselaer County, which denied a motion to dismiss the amended complaint. The plaintiff seeks to recover damages for an alleged fraudulent representation made to him in the course of his employment. In July of 1967 at an interview with Dr. Lewis A. Froman, then president of Russell Sage College, plaintiff was allegedly told that in the event the position of assistant dean he was seeking was ever eliminated, “you will always have a teaching position made available to you by Russell Sage College”. In February of 1972 plaintiff contends that in a conversation with Froman’s successor, Dr. Charles V. Walker, his mention of this former commitment evoked a response from Dr. Walker to the effect “that in essence you have a lifetime employment agreement”. Plaintiff asserted “I think that particular statement of Charles V. Walker — that in effect you have a lifetime employment agreement — was a baiting statement; that he intended that I answer as ‘yes’, which I did not answer”. He further contends that as a result of these oral representations he was caused to forego other employment opportunities causing a substantial loss of income for which he seeks damages, both compensatory and punitive. Defendant’s motions to dismiss both the original and the amended complaint were denied by Special Term and two separate appeals are now before us. Initially, we note that the appeal from the order denying relief as to the original complaint should be dismissed. When an amended complaint has been served, an appeal from an order addressed to the sufficiency of the original pleading is moot (Penato v George, 42 NY2d 908;Bennett v City of New York, 65 AD2d 731; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.07). A reading of the amended complaint reveals that, on its face, plaintiff has set forth the necessary allegations of a fraud cause of action, albeit in conclusory terms. However, a close examination of this amended complaint and the supporting papers submitted on the motion to dismiss, clearly demonstrates that, in fact, plaintiff does not have a cause of action for fraud against the defendant. One of the elements necessary to sustain a cause of action for fraud is deception (see Lanzi v Brooks, 54 AD2d 1057, affd 43 NY2d 778). Here, such an allegation by plaintiff in his complaint is contradicted by his own testimony at the examination before trial when he related that the statement made to him by President Walker in February of 1972 was a “baiting statement” seeking an affirmative response which was not forthcoming. Under the circumstances presented, it is plain that plaintiff neither relied upon nor was deceived by this conversation, but had attempted to convince Walker of the existence of a continuing employment
The quoted materials are from the examination before trial of the plaintiff and were submitted with the papers upon the motion to dismiss (cf. CPLR 2214, subd [c]; Guggenheimer v Ginzburg, 43 NY2d 268, 275).
