of Gallagher, especially in light of the countervailing Second Circuit authority in Wakefield and the different factual contexts of the two cases. The Court concludes that Gallagher does not disturb the authority of Wakefield, at least in the context of employment sales commission provisions. In light of the above, Defendant's motion to dismiss Plaintiff's claim that Defendant violated its implied covenant of good faith and fair dealing by terminating him in order to avoid paying sales commissions is hereby denied.
Plaintiff's Fourth Claim
Plaintiff's fourth claim states that Defendant's representations to Plaintiff regarding the reasons for his termination were fraudulent misrepresentations. In order to plead a cause of action for fraud and misrepresentation under New York law, a plaintiff must allege "representation of a material existing fact, falsity, scienter, deception and injury." Lanzi v. Brooks, 54 A.D.2d 1057, 388 N.Y.S.2d 946, 947, aff'd, 54 A.D.2d 1057, 388 N.Y.S.2d 946 (Ct. App. 1976); Ris v. Finkle, 148 Misc. 2d 773, 561 N.Y.S.2d 499 (1989). Furthermore, New York law imposes a more stringent standard of pleading for fraud than for other causes of action, requiring that "'the circumstances constituting the wrong shall be stated in detail.'" Lanzi at 947-48, quoting N.Y. Civ. Prac. L. & R. § 3016(b).
Pursuant to this standard, Plaintiff has failed sufficiently to plead fraud and misrepresentation under New York law. Plaintiff alleges that Defendant's explanation for his discharge involved "false," "fraudulent" and "gross misrepresenations" that were made "knowingly, willfully and maliciously . . . by [Plaintiff's] supervisors at [Defendant company] in an attempt to avoid paying [Plaintiff] large sales commission bonuses." Complaint P38. Plaintiff has failed to demonstrate that he relied on Defendant's explanation and that he was injured as a result of such reliance, two necessary elements of a claim for fraud and misrepresentation under the standard set forth in Lanzi.2 In light of Plaintiff's failure to allege reliance and resulting injury, Plaintiff's claim for fraud and misrepresentation is hereby dismissed for failure to state a claim upon which relief can be granted.
Plaintiff's Fifth Claim
Plaintiff's fifth claim seeks recovery for intentional infliction of emotional distress. New York law has adopted the standard set forth in the Restatement of Torts, according to which a plaintiff must allege four separate elements in order to state a claim for intentional infliction of emotional distress: that the defendant engaged in extreme and outrageous conduct; that the defendant intended to cause distress or knew his conduct would result in distress; that the plaintiff suffered severe emotional distress; and that the defendant's conduct in fact caused plaintiff's distress. See Richard L. v. Armon, 144 A.D.2d 1, 536 N.Y.S.2d 1014, 1015-16 (1989) (citations omitted). New York courts have further incorporated a comment issued pursuant to the Restatement of Torts, according to which liability is found "'only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" See. e.g., Murphy, 461 N.Y.S.2d at 236, quoting Restatement of Torts, 2nd § 46(1), Comment D.
Other courts in New York have dismissed claims for intentional infliction of emotional harm brought by former employees in cases involving conduct far more, or at least as, serious as that alleged by the Plaintiff here. For example, the Eastern District of New York dismissed a claim for failure to state a cause of action for intentional infliction of emotional harm even though plaintiff alleged that her former employer had ostracized and isolated her, engaged in a campaign of harrassment against her, falsely accused her of time abuse, improperly denied vacation and personal leave and gave her unjustifiably poor evaluations. See Kirwin v. New York State Office of Mental Health, 665 F. Supp. 1034, 1040 (E.D.N.Y. 1987) (finding that these allegations merely amounted to "insults, indignities, annoyances and petty oppressions which did not constitute outrageous conduct"). See also Lawford v. New York Life Ins. Co., 739 F. Supp. 906, 919 (S.D.N.Y. 1990) (denying claim for intentional infliction of emotional distress where employer wrongfully terminated employee in order to avoid paying full pension benefits); Murphy, 461 N.Y.S.2d at 236 (denying at-will employee's claim of intentional infliction of emotional distress in spite of allegations that employer terminated employee in a humiliating manner, on the basis of his disclosure of certain improprieties to top management and because of his age).
Plaintiff alleges that Defendant intentionally, willfully and maliciously misrepresented the facts and circumstances of Plaintiff's job performance and used these misrepresentations as a basis for Plaintiff's termination. Complaint P41. Plaintiff also alleges that these misrepresentations shocked, embarrassed and humiliated him and that, as a result, he suffered "nervous and erratic behavior, weight loss, lack of sleep, puffiness and swelling." Complaint P44-45. These allegations do not amount to outrageous conduct, as required by New York law. Plaintiff's fifth cause of action for intentional infliction of emotional harm is hereby dismissed for failure to state a claim upon which relief can be granted.
For the reasons stated above, the Court grants Defendant's motion to dismiss Plaintiff's fourth and fifth causes of action for failure to state a claim upon which relief can be granted under New York law. The Court denies Defendant's motion to dismiss Plaintiff's second and third causes of action.
The clerk is ordered to dismiss Plaintiff's fourth and fifth causes of action. The parties should appear before Judge Wood for a scheduling conference on June 5, 1992, at 12:00 P.M., in courtroom 2703.
DATED: New York, New York
April 15, 1992
Kimba M. Wood
United States District Judge