Dept. 1987). Accordingly, defendants contend, even accepting
the truth of plaintiff's allegations for purposes of this
motion to dismiss, the complaint fails to state a claim.
Alternatively, defendants contend that even if plaintiff had
viable claims sounding in contract, they would be barred by the
New York Statute of Frauds, General Obligations Law §
Plaintiff says that she is not suing in contract, she is
suing for the torts of fraud and negligence misrepresentation.
Moreover, she contends that her claim "is not concerned with
— nor is the fraud alleged connected to — her termination."
Brief at 7.
That is a bold assertion. If the Firm had not terminated
plaintiff's employment she would still be working there, and by
definition would not have commenced this action. Thus it is
difficult to agree, at least as a matter of logic, that
plaintiffs claim "is not concerned with" her termination.
Nevertheless, plaintiff insists that in part at least, the Firm
fraudulently misrepresented existing facts prior to her
accepting the Firm's offer of employment, and that makes all
the difference. In making that argument, plaintiff concedes
that she was an at-will employee, and appears to acknowledge
that misrepresentations "related to future acts or promises,
not to existing facts" (brief at 7, emphasis in original) would
not sustain a claim. The principal "existing fact" allegedly
misrepresented to plaintiff was the existence of the Firm's
"recently secured" large environmental law client. The
complaint alleges that this client and the resulting
substantial environmental law case work did not materialize,
and that in May 1990 "upon information and belief, Herzog
admitted that he had been misled by Jeff Steinberg — the
partner who had allegedly secured the aforesaid client for the
firm." Complaint at ¶ 31.
New York case law supports the general proposition that
misrepresentations of material facts prior to contracting may
give rise to a cause of action for fraud in the inducement.
See, e.g., Triangle Underwriters, Inc. v. Honeywell, Inc.,
604 F.2d 737, 746-48 (2d Cir. 1979) and cases cited. But plaintiff
cites no case applying that general principle in the particular
context of employment at will, and holding that the employer's
unfettered right to terminate the employment at any time
becomes fettered by fraudulent representations given to induce
Bluntly put, the Firm's argument is that an employer may lie
to a prospective employee to obtain her services, and then
discharge her with impunity if the employment is at will. It is
an argument singularly lacking in grace, and the conclusion
does not necessarily follow. An employer's freedom to fire an
employee at will for any or no reason does not necessarily
imply a freedom to seduce the employee into its service by
Nevertheless, the New York decisions establish that a
terminated at-will employee has no claim in contract, and are
uniformly hostile to efforts to assert claims sounding in tort.
In Shipper, supra, the terminated at-will employees alleged
fraudulent misrepresentations made during negotiations leading
to the employment, "that they would only be fired for just
cause." 605 F. Supp. at 707. While that allegation described a
lie with respect to a then-existing policy, Judge Cannella
discussed the claim on the authority of Murphy and Weiner.
As I construe present New York law, an individual relying
upon particular representations made during negotiations for
employment must include them in the contract of employment. If
the individual consents to become an employee at will, he or
she is subject to termination by the employer at the latter's
will. I do not think that Aspesi v. Shahinian Acoustics, Ltd.,
84 A.D.2d 543, 443 N.Y.S.2d 242 (2d Dept. 1981), relied upon by
plaintiff, supports on its facts the distinction plaintiff
seeks to draw between existing facts and future promises (the
case turned upon an employer's alleged promise to pay plaintiff
a salary if he entered into defendant's employ); but in any
event Aspesi antedates the decisions of the Court of Appeals in
Murphy and Sabetay to the extent that Aspesi is inconsistent
with the conclusion I reach in the case at bar, I do not think
it reflects current New York law.
Accordingly plaintiff's first cause of action for fraud does
not state a viable claim. The second cause of action, for
negligent misrepresentation, fares no better. A cause of action
for negligent misrepresentation depends upon the existence of
a fiduciary relationship between the parties which requires the
defendant "to act with care if he acts at all." White v.
Guarantee, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 478,
372 N.E.2d 315, 319 (1977). But the New York cases hold that an employer
owes no fiduciary duty to an at-will employee. See Serow v.
Xerox Corp., 166 A.D.2d 917, 560 N.Y.S.2d 575, 576 (4th Dept.
1990); Budet v. Tiffany & Co., 155 A.D.2d 408, 409, 547
N YS.2d 81, 82 (2d Dept. 1989). Consistent with that rule, the
New York Court of Appeals held in Murphy that an implied
obligation of good faith and fair dealing would not be imposed
upon an employer in a contract of employment at will. "In the
context of such an employment it would be incongruous to say
that an inference may be drawn that the employer impliedly
agreed to a provision which would be destructive of his right
of termination." 58 N.Y.2d at 304-305, 461 N.Y.S.2d at 237, 448
N.E.2d at 91.
In the case at bar plaintiff, an experienced attorney,
negotiated with the defendant Firm for employment. No fiduciary
relationship existed, and accordingly there is no claim in law
for negligent misrepresentation.
In the view I take of the case, I need not reach defendants'
alternative contention based upon the Statute of Frauds.
However, defendants argue for application of the Statute of
Frauds by construing plaintiff's claims as sounding in
contract. In point of fact, plaintiff seeks to assert claims
sounding in tort. Those claims fail because they are not viable
Defendants' motion to dismiss the complaint is granted. The
Clerk of the Court is directed to dismiss the complaint with
It is SO ORDERED.
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