Barker v Time Warner Cable, Inc.

[*1] Barker v Time Warner Cable, Inc. 2009 NY Slip Op 51446(U) [24 Misc 3d 1213(A)] Decided on July 1, 2009 Supreme Court, Nassau County Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2009
Supreme Court, Nassau County

Robert Barker, Plaintiff,

against

Time Warner Cable, Inc., Time Warner Cable LLC; Time Warner New York Cable LLC; Time Warner Cable Communications Company, LLC; and Time Warner Cable of New York City a Division of Time Warner Entertainment Company, L.P.; Ralph Borghese, Defendants.



016438/08



Plaintiff's Counsel:

Schrier Fiscella & Sussman, LLC

825 East Gate Blvd.

Garden City, NY 11530

(516) 739-8000

Defendant's counsel:

Kauff McGuire & Margolis, LLP

950 Third Avenue

New York, NY 10022

(212) 644-1010

Randy Sue Marber, J.

The Defendants, Time Warner Cable Inc., Time Warner Cable LLC, Time Warner NY Cable LLC (respectively sued incorrectly as "Time Warner Cable, Inc.," "Time Warner Cable, LLC" and [*2]"Time Warner New York Cable LLC") and Time Warner Cable of New York City, a division of Time Warner Entertainment Company, L.P. (collectively referred to hereinafter as "Time Warner"), move [Mot. Seq. 01] for an Order, dismissing: (a) Plaintiff, Robert Barker's ("Barker") first, second, third, fourth, fifth and sixth causes of action in his complaint, pursuant to CPLR 3211(a)(7), for failure to state a claim upon which relief may be granted; and (b) Plaintiff's fourth and fifth causes of actions for failure to plead fraud and fraudulent misrepresentation with the detail required by CPLR § 3016(b). The Defendants maintain that "Time Warner Cable Communications Company, LLC" is an entity which does not exist; however, to the extent that it has any obligation to respond to the Plaintiff's complaint, it joins in their instant motion to dismiss.

The Defendant, Ralph Borghese ("Borghese"), moves [Mot. Seq. 02] for an Order, dismissing: (a) the Plaintiff's first, second, third, fourth, fifth, sixth and seventh causes of action in his Complaint, pursuant to CPLR § 3211(a)(7), for failure to state a claim upon which relief may be granted; and (b) the Plaintiff's fourth and fifth causes of actions for failure to plead fraud and fraudulent misrepresentation with the detail required by CPLR § 3016(b). The motions are determined as herein set forth below.

This is an action for the alleged breach of an agreement for the payment of commissions and bonuses in an at-will employment context. Insofar as a motion made pursuant to CPLR § 3211 requires this Court to accept as true the allegations of the complaint (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]), the underlying facts are as follows:

On January 29, 2002, the Plaintiff was offered employment with Time Warner Cable Inc.[FN1] as an "Account Manager." The Plaintiff alleges that when Time Warner offered him employment, it did so with the knowledge that he had "business relationships" with many individuals in positions with major corporations and that he would be in a position to cause these corporations to purchase Time Warner's services. The "offer of employment letter" from the Defendants addressed to the Plaintiff, states, in pertinent part, as follows:

We are pleased to confirm our offer of employment with Time Warner Cable as a [sic] Account Manager . . . Your starting salary will be $45,000 per year plus commission with the first 6 months on a draw. After the 90 day period, your performance will be reviewed for continued employment on the Time Warner payroll . . .

This letter constitutes a summary of some of the key points of our offer for employment and is not a contract of employment or a guarantee of employment or compensation . . .

In connection with his offer of employment, the Plaintiff executed said employment letter with Time Warner.

The Plaintiff alleges that at the time he was offered a position with Time Warner, Time Warner had a published commission schedule for its salespeople such as the Plaintiff entitled "Account Executive Sales Compensation Plan - Business Services - 2001" (hereinafter referred to as the "Sales Compensation Plan"). The Plaintiff alleges that he relied upon Time Warner's [*3]representations that he would be paid commissions pursuant to the Sales Compensation Plan. The Plaintiff claims that the Defendants allegedly "induced" him to quit his job with his former employer and accept employment with the Defendants.

As an Account Manager for Time Warner, the Plaintiff procured a deal with Sprint Communications Company and its affiliates (the "Sprint Deal") in connection with the Defendants' digital phone service. Specifically, the Plaintiff claims that by reason of his efforts over the past seven years, Sprint entered into several agreements, in which Sprint agreed to lease Time Warner's newly upgraded network system for voice wireless telephone service by Sprint. The Plaintiff alleges that on April 29, 2004, Time Warner Cable of New York City, a division of Time Warner Entertainment Company, L.P., and Sprint Communications Company, L.P. entered into a "Competitive Access Provider Service Agreement". However, the Plaintiff claims that it was the "Fourth Amendment to the Master Service Agreement", dated and effective November 26, 2006, which expanded the Time Warner/Sprint relationship nationwide. The Plaintiff claims that by reason of the promises and representations made in the Sales Compensation Plan, he expected to be fully compensated for the foregoing commissionable sales. While the Plaintiff acknowledges that he received certain commission payments from the Defendants in connection with the Sprint Deal, he states that on or about May 19, 2008, Time Warner advised him that they would not pay him any further commissions or quarterly bonuses and that he would no longer handle the Sprint account.

The Defendant Borghese is the Director of Business Services for Time Warner Cable New York's High Speed Data product line. The Plaintiff alleges that Borghese is "in a superior position" to him, and at "most times a superior of Plaintiff." The Plaintiff also alleges that "[i]n or about March 2008" Borghese began "acting as Plaintiff's supervisor." According to the Plaintiff, Borghese informed certain unnamed employees that the Plaintiff's employment with the company may cease.

The Plaintiff brings this action asserting six causes of action against all Defendants, including Borghese, and a seventh cause of action only against Borghese: to wit, (1) Breach of Contract; (2) Breach of Implied Duty of Good Faith and Fair Dealing; (3) Unjust Enrichment; (4) Fraudulent Misrepresentation; (5) Fraud; (6) Declaratory Judgment; and (7) Tortious Interference with Contractual Relations. The Plaintiff seeks to recover from the Defendants the value of commissions and bonuses he believes the Defendants owe to him as well as a declaratory judgment regarding his right to receive from the Defendants certain payments pursuant to the Sales Compensation Plan.

The Defendants seek to dismiss the Plaintiff's complaint in its entirety as against them. Specifically, the Time Warner defendants seek dismissal of the first six causes of action based upon CPLR § 3211(a)(7) and CPLR § 3016 (b); and, Borghese seeks dismissal of all seven causes of action based upon CPLR § 3211(a)(7) and CPLR § 3016(b). Notably, both sets of defendants, Time Warner and Borghese, are represented by the same counsel. Thus, to the extent possible, this Court will address both sets of defendants' claims concurrently.

CPLR § 3211(a)(7) permits the court to dismiss a complaint that fails to state a cause of action. When deciding such a motion, the court must determine whether the plaintiff has a legally cognizable cause of action and not whether the action has been properly plead (Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]; Rovello v. Orofino Realty Co., 40 NY2d 633 [1976]; Well v. Yeshiva Rambam, 300 AD2d 580 [2nd Dept. 2002]). The complaint must be liberally construed, and plaintiff must be given the benefit of every favorable inference (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Sitar v. Sitar, 50 AD3d 667 [2nd Dept. 2008]; Mitchell v. TAM Equities, Inc., 27 AD3d [*4]703 [2nd Dept. 2006]). The court must also accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion (511 West 232rd Street Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]; Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409 [2001]; Alsol Enterprises, Ltd. v. Premier Lincoln- Mercury, Inc., 11 AD3d 493 [2nd Dept. 2004]). If, from the facts alleged in the complaint and the inferences which can be drawn from those facts, the court determines that the pleader has a cognizable cause of action, the motion must be denied (Sokoloff v. Harriman Estates Development Corp., supra; and Stucklen v. Kabro Assocs., 18 AD3d 461 [2nd Dept. 2005). While factual allegations contained in the complaint are deemed true, legal conclusions and facts contradicted on the record are not entitled to a presumption of truth (In re Loukoumi, Inc., 285 AD2d 595 [2nd Dept. 2001]; Doria v. Masucci, 230 AD2d 764 [2nd Dept. 1996]).

For the sake of clarity, this Court will address each cause of action separately and in turn.

First Cause of Action: Breach of Contract

The Plaintiff asserts in his first cause of action that the Defendants "breached the Employment Agreement, which includes the Sales Compensation Plan with Plaintiff," when they "unilaterally advised [him] that he was to no longer represent Defendants' interests with Sprint and that he would no longer receive any compensation from sales derived from the Sprint contracts" (Complaint, ¶¶106-107).

The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendants; (2) performance by plaintiff; (3) defendants' failure to perform; and (4) resulting damage (Noise in the Attic Productions v. London Records, 10 AD3d 303, 307 [1st Dept. 2004]; Furia v. Furia, 116 AD2d 694 [2nd Dept. 1986]). "In order to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based [and][t]he pleadings must be sufficiently particular to give the court and [the] parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved as well as the material elements of each cause of action or defense" (Atkinson v. Mobil Oil Corp., 205 AD2d 719, 720 [2nd Dept. 1994]; see also, Peters v. Accurate Bldg. Inspectors Div. of Ubell Ent., Inc., 29 AD3d 972 [2nd Dept. 2006]). Vague and conclusory allegations will not suffice (Gordon v. Dino De Laurentiis Corp., 141 AD2d 435, 436 [1st Dept. 1988; Fowler v. American Lawyer Media, Inc., 306 AD2d 113 [1st Dept. 2003]).

The Plaintiff's complaint fails to specifically plead the provisions of the "Employment Agreement" and Sales Compensation Plan which the Defendants allegedly breached; nevertheless, this Court will consider the Plaintiff's affidavit and the relevant documents including the offer of employment letter and a copy of the Sales Compensation Plan in determining the instant motion to dismiss (Rovello v. Orofino, supra; Rappaport v International Playtex Corp., 43 AD2d 393, 394-395; Epps v Yonkers Raceway, 21 AD2d 798, 799).

To the extent that the Plaintiff claims that the "Offer of Employment" letter constitutes the "Employment Agreement" that forms the basis for his breach of contract cause of action, such argument is entirely meritless. In general, the formation of a contract requires at least two parties with legal capacity to contract, mutual assent to the terms of the contract and consideration (New Express Industries and Terminal Corp. v. New York State Dept. Of Transportation, 93 NY2d 584, 589-590 [1999]; Elias v. Serota, 103 AD2d 410, 414-415 [2nd Dept. 1984]). In this case, the offer of employment extended by Time Warner plainly stated, in pertinent part, that "[t]his letter...is not [*5]a contract of employment or a guarantee of employment or compensation." Accordingly, the "Offer of Employment" cannot form the basis for the Plaintiff's breach of contract cause of action herein.

Counsel for the Plaintiff states in his affirmation in opposition that "it is Plaintiff's position that the 2001 Compensation Plan is the agreement that was in effect on Barker's hire date, and therefore, the 2001 Compensation is the very agreement that is controlling here" (Aff. In Opp., ¶46). However, pursuant to the 2001 Sales Compensation Plan:

Time Warner Cable retains the right to [m]odify the list of services or accounts eligible for commission earnings [and]...[a]ssign participants to specific geographic areas, sales module[s], vertical market or group of accounts.

Thus, contrary to the Plaintiff's claims, the Sales Compensation Plan expressly authorized the company to transfer him off the Sprint account, thereby preventing him from earning future commissions on the Sprint Deal. Accordingly, the very document upon which the Plaintiff bases his breach of contract claim establishes that he fails to state a cause of action for breach of contract.

The Plaintiff's argument that "[d]efendants' notification to Barker that he would not be receiving any commissions or bonuses from future Sprint installations is in violation of the Sales Compensation Plan" is also unavailing. The Plaintiff submits that the fact that the Access Provider Service Agreement was entered into prior to the date he was advised that he would no longer be "assigned" to the Sprint account, entitles him to the payment of commissions and bonuses relating to any installations and any fees derived therefrom per the schedules regardless of when the actual installation occurs. Again, the plain language of the Sales Compensation Plan, together with the Plaintiff's admission that "[c]ommencing on December 1, 2007, the Defendants began to pay the Plaintiff commissions and bonuses pursuant to the Sales Compensation Plan through and including May 14, 2008" (Complaint, ¶105), precludes this view. Section 4 of the 2001 Sales Compensation Plan entitled "Commission & Bonus Plans" states in pertinent part, as follows:

Section 4: Commission & Bonus Plans

A]Program Changes and Modifications

Time Warner retains the right to change, modify or cancel any element of the Commission and Bonus Plan, except for commission for contracts signed prior to the effective date of any such change, modification or cancellation.***

In light of the fact that the Plaintiff admits he received his due commission from the Sprint account at all relevant times until the program was discontinued for him, his claim for breach of contract based upon his alleged due commissions also fails.

For these reasons, the Defendants' motion to dismiss the Plaintiff's first cause of action for breach of contract is GRANTED as against all defendants.

Second Cause of Action: Breach of Implied Duty of Good Faith and Fair Dealing

A separate cause of action for breach of the implied covenant of good faith and fair dealing is duplicative of a cause of action for breach of contract and thus, New York does not recognize a separate cause of action for violation of the implied covenant of good faith and fair dealing (Cohen v. Nassau Educators Fed. Credit Union, 37 AD3d 751 [2nd Dept. 2007]; Jacobs Private Property, LLC v. 450 Park LLC, 22 AD3d 347 [1st Dept. 2005]). In this case, the Plaintiff seeks to recover for breach of the implied covenant of good faith and fair dealing with respect to the "Employment Agreement" and Sales Compensation Plan based on the same facts that he alleges in his breach of [*6]contract claim. The Plaintiff's second cause of action is therefore redundant of his breach of contract claim (which fails in and of itself for the reasons stated above).

The Plaintiff's reliance upon two cases for the proposition that in the "pre-answer stage," courts have permitted plaintiffs to proceed on both breach of contract and breach of the implied covenant of good faith and fair dealing claims under the contract is misplaced. Unlike in the case at bar, in Frydman Co v. Credit Suisse First Boston, the First Department held that plaintiff's claims for breach of contract and breach of the implied covenant of good faith and fair dealing were not duplicative because they involved two entirely different contract agreements. In this case, these claims are predicated upon the same agreement, namely, the Sales Compensation Plan. Further, insofar as Sims v. First Consumers National Bank relied solely on Frydman, the Plaintiff's reliance upon it is also misplaced (Frydman Co v. Credit Suisse First Boston, 1 AD3d 274 [1st Dept. 2003]; Sims v. First Consumers Nat. Bank, 303 AD2d 288 [1st Dept. 2003]).

"[A]bsent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" (Sabetay v. Sterling Drug, 69 NY2d 329, 333 [1987]; see also, Goldman v. White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173 [2008]). In an employment at will context, there is no implied covenant of good faith and fair dealing (Sabetay v. Sterling Drug, supra at 335-336; see also Lipsky v. Guardian Life Ins. Co., 268 AD2d 310 [1st Dept. 2000]). The Court of Appeals in Murphy v. American Home Prods. Corp., 58 NY2d 293 [1983], held:

New York does recognize that in appropriate circumstances an obligation of good faith and fair dealing on the part of a party to a contract may be implied and, if implied will be enforced * * * In such instances the implied obligation is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship (Murphy v. American Home Prods. Corp., 58 NY2d at 304 (citations omitted).

Notably, the implied covenant of good faith and fair dealing is inconsistent with all aspects of an at will employee's relationship with his or her employer, not just the right to terminate the employee (Nunez v. A-T Fin. Info., Inc., 957 F. Supp. 438, 443-44 [SDNY 1997]). The basis for this rule is that an obligation to abide by an implied covenant of good faith and fair dealing would be inconsistent with the employer's unfettered right to terminate an at will employee (Sabetay v. Sterling Drug, Inc., supra at 335-36; Murphy v. American Home Prods. Corp., supra at 304-05). As the Southern District Court of New York held in Nunez v. A-T Fin. Info., Inc.:

To impose such an obligation with respect to issues other than discharge would be equally inconsistent with the employer's unrestricted right of termination. Every contract (other than an agreement for employment at will) under New York law includes "an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part." * * * In an employment at will contract, however, either party has the right to take the ultimate step to render performance impossible, because either party can terminate the relationship, at any time, for any reason. Under the circumstances, to imply a lesser obligation not to obviate performance other than by discharging the employee would be patently illogical (Nunez v. A-T Fin. Info., Inc., supra at 443).

The Plaintiff has failed to plead the existence or terms of any agreement between himself and [*7]the Defendants which establishes a fixed term of employment, or any facts which indicate that he is not employed at will. To the extent there is an "employment agreement" between the Plaintiff and the Defendants, it is one of employment at-will, to which no implied covenant of good faith and fair dealing applies (Sabetay v. Sterling Drug, supra; Murphy v. American Home Prods. Corp. supra).

The Plaintiff's reliance upon the Second Circuit's decision in Wakefield v. Northern Telecom, Inc., 769 F.2d 109, is also misplaced. Wakefield involved a dispute concerning a commission agreement (Id. at 110). Wakefield was an employee who was fired when the company he worked for, Danray, Inc., was acquired by Northern Telecom, Inc. ("NTI") (Id). Wakefield brought a contract claim against NTI alleging he was denied commissions for sales performed before his termination. Wakefield argued that he was fired because NTI wanted to avoid paying him those commissions (Id. at 111-12). He contended that under New York law a termination so motivated violated an implied covenant of good faith and fair dealing of his commission agreement (Id. at 112). The jury found for Wakefield (Id. at 110). The Court of Appeals held an implied covenant of good faith is not ordinarily applicable to an at will agreement comparable to the one Wakefield had. However, where a covenant of good faith is necessary to enable one party to receive the benefits promised for performance, it is implied in law to effectuate the intent of the parties (Id. at 112). The court implied a covenant of good faith into the Wakefield commission agreement because an unfettered right to avoid payment of commissions would be counterproductive to the purpose of the contract itself (Id. at 112-13). Thus, under Wakefield, Barker contends an implied covenant of good faith is permitted under New York law and should be read into the Sales Compensation Plan.

It cannot be overlooked however, that the Court of Appeals, following the Wakefield decision, in Gallagher v. Lambert, 74 NY2d 562, dismissed the plaintiff's argument that the contract could allow for an implied covenant of "fair value" in a buy-back for employee stock (Gallagher v. Lambert, 74 NY2d 562 [1989]. The court stated that implying those principles into the contract would frustrate the agreement, and would be disruptive of settled contract principles governing like agreements whereby parties contract in advance for predictability, reliance, and definiteness (Id). The Gallagher court ignored the Wakefield case and affirmed New York's strong at will employment rule (Id). Later, the District Court in Collins & Aikman Floor Coverings v. Froehlich held that the Gallagher case is the latest reiteration of New York's view of this basic contract principle (Collins & Aikman Floor Coverings v. Froehlich, 736 F. Supp. 480, 486 [SDNY1990]). The court found the majority in Gallagher had rejected Wakefield, and any reliance on it would be unwarranted because Wakefield had cited no New York law in developing its exception to the strict at will employment rule (Id. at 485). The New York Court of Appeals held in Gallagher that an at will employee who was entitled to receive benefits under a shareholder buy back agreement was not owed a duty of good faith and fair dealing when his employment was terminated prior to his receiving certain shareholder benefits (Gallagher, 74 NY2d at 567-68). The Gallagher majority held that the buyback agreement "cannot be neatly divorced" from the at will employment relationship because the individual's employment and the buyback agreement provisions were "linked together as to timing and consequences."

This Court reads these later opinions to mean that New York has now rejected Wakefield and therefore the good faith covenant should not be implied particularly in this case where the facts are analogous to the facts in Gallagher. Pursuant to the Sales Compensation Plan, the Plaintiff's commissions are "linked" to, and cannot be "divorced" from the Plaintiff's employment, as the Sales [*8]Compensation Plan provides that an at will employee will only receive commissions and bonuses under the Sales Compensation Plan on contracts signed and/or renewed and installed prior to the termination of employment.

Accordingly, this Court finds that no covenant of good faith and fair dealing is implied to any aspect of the Plaintiff's relationship with the Defendants, including under the Sales Compensation Plan.

Third Cause of Action: Unjust Enrichment

"[T]o prevail on a claim of unjust enrichment, a Plaintiff must establish that the Defendant benefitted at the Plaintiff's expense and that equity and good conscience require restitution" (Whitman Group Realty, Inc. v. Galano, 41 AD3d 590, 593 [2nd Dept. 2007], citing Kaye v. Grossman, 202 F.3d 611, 615-616 [2nd Cir. 2000]); City of Syracuse v. R.A.C. Holding, 258 AD2d 905, 906 [1999]). However, "[r]ecovery for unjust enrichment is barred by a valid and enforceable contract" (Whitman Group Realty, Inc. v. Galano, supra, citing Samiento v. World Yacht Inc., 38 AD3d 328, 329 [1st Dept. 2007]). As neither the Plaintiff nor the Defendants dispute the enforceability or validity of the Sales Compensation Plan, the Plaintiff's third claim sounding in unjust enrichment is duplicative of his first cause of action sounding in breach of contract. The Defendants' motion to dismiss the Plaintiff's third cause of action is therefore GRANTED.

Fourth and Fifth Causes of Action: Fraudulent Misrepresentation and Fraud

"It is well settled that where, as here, a claim to recover damages for fraud is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties' agreement, a cause of action sounding in fraud does not lie" (McKernin v. Fanny Farmer Candy Shops, Inc., 176 AD2d 233 [2nd Dept. 1991] ; see also Mastropieri v Solmar Constr. Co., 159 AD2d 698 [2nd Dept. 1990]; Tuck Indus. v Reichhold Chems., 151 AD2d 565 [2nd Dept. 1989]). "A contract action may not be converted into one for fraud by the mere additional allegation that the contracting party did not intend to meet his contractual obligation" (Comtomark, Inc. v Satellite Communications Network, 116 AD2d 499, 500 [1st Dept. 1986]; Tesoro Petroleum Corp. v Holborn Oil Co., 108 AD2d 607 [1st Dept. 1985], appeal dismissed 65 NY2d 637 [1985]).

In this case, the Plaintiff's fourth and fifth causes of action consist of bald allegations that the Defendants acted fraudulently when they allegedly failed to perform their obligations under the Sales Compensation Plan. Specifically, in the Plaintiff's fourth cause of action, he alleges that the Defendants "falsely and fraudulently represented" to him that he "would receive commissions and bonuses based upon the Sales Compensation Plan." In his fifth cause of action, the Plaintiff asserts that the Defendants misrepresented to him and concealed facts concerning payment of commissions and bonuses under the Sales Compensation Plan and in connection with his work on the Sprint Deal, with "no intention of compensating Plaintiff pursuant to the Sales Compensation Plan." The Plaintiff fails to allege however, that the Defendants made any misrepresentations or omissions that are collateral or extraneous to the Sales Compensation Plan, or seek relief for a breach of any duty that is independent of any obligations the Defendants may have under the Sales Compensation Plan or "employment agreement."

Accordingly, the Plaintiff's fourth and fifth causes of action therefore are merely a restatement of his breach of contract claim and are therefore DISMISSED.

Furthermore, the Plaintiff's claims also fail because he has not pleaded the elements of fraud [*9]and fraudulent misrepresentation with the particularity required pursuant to CPLR § 3016(b). In order to establish a cause of action for fraud, a plaintiff must plead the following elements: (1) a false representation; (2) of material fact; (3) with intent to defraud; (4) reasonable reliance on the representation; (5) causing damages to the plaintiff (Lama Holding Co. v. Smith Barney, 88 NY2d 413 [1996]). CPLR § 3016(b) provides that an action for fraud must be pled "with particularity, including specific dates and items, if necessary and insofar as practicable." Conclusory allegations of fraud will not be sufficient (CPLR § 3016[b]; Dumas v. Fiorito, 13 AD3d 332 [2nd Dept. 2004]; Sargiss v. Magarelli, 50 AD3d 1117 [2nd Dept. 2008]). However, it is sufficient to plead facts that would allow a reasonable inference of the alleged fraud (Pludeman v. Northern Leasing Systems, Inc., 10 NY3d 486 [2008]). In his fourth and fifth causes of action, while the Plaintiff recites the elements of claims for fraud and fraudulent misrepresentation, he fails to provide any detail regarding the contents of the alleged fraudulent misrepresentations made by the Defendants. The Plaintiff merely concludes that the Defendants "falsely and fraudulently" and "willfully, recklessly, and knowingly" made "numerous material misrepresentations and concealed or failed to disclose numerous material facts regarding the contract of employment with Plaintiff" concerning whether he would be paid commissions in respect of the Sprint Deal pursuant to the Sales Compensation Plan. He never discloses the individuals who made the alleged misrepresentations, when they were made, the content of the misrepresentations, or any other details.

The Court of Appeals decision in Pludeman v. Northern Leasing Systems, Inc., is entirely inapplicable to the case at hand. The Plaintiff relies upon Pludeman for the principle that when facts, such as those regarding a defendant's deceptive practices, are "peculiarly within the knowledge of the party charged with fraud" the case should not be dismissed due to a pleading deficiency (Pludeman v. Northern Leasing Systems, Inc., 10 NY3d 486, 491-92 [2008]). However as stated above, because the Plaintiff has claimed that the Defendants made misrepresentations to him which were allegedly fraudulent, the Plaintiff should be able to recount said misrepresentations. This is not a situation where the missing facts are within the Defendants' knowledge because the Plaintiff was on the receiving end of these statements that were purportedly made to him. The Plaintiff should be able to plead with the requisite specificity as to the individuals who made the misrepresentations, when they were made, and the content of the misrepresentations. Additional discovery will not help the Plaintiff if he has no independent knowledge of these alleged misrepresentations. The Plaintiff therefore fails to meet the heightened pleading standard for pleading fraud claims as set forth in CPLR § 3016(b).

Accordingly, the Defendants' motion to dismiss the Plaintiff's fourth and fifth causes of action is therefore GRANTED.

Sixth Cause of Action: Declaratory Judgment

The granting of a declaratory judgment is discretionary (CPLR § 3001). A declaratory judgment action may be an appropriate method for resolving the rights and obligations of a party to a contract (Kalisch-Jarcho, Inc. v. City of New York, 72 NY2d 727 [1988]). However, a party may not seek a declaratory judgment when the party has other available remedies, such as an action for breach of contract (Id.; James v. Alderton Dock Yards, Ltd., 256 NY 298 [1931]; Apple Records, Inc. v. Capital Records, Inc., 137 AD2d 50 [1st Dept. 1988]).

In his sixth cause of action, the Plaintiff requests that the Court declare that he is entitled to certain payments pursuant to the Sales Compensation Plan. This cause of action merely seeks [*10]monetary relief under a breach of contract theory, and is dismissed as a matter of law because an adequate remedy, contract damages, exists, and is sought by the Plaintiff in his complaint (BGW Dev. Corp. V. Mount Kisco Lodge No. 1552 of the Benevolent and Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568 [2nd Dept. 1998]).

For these reasons, Time Warner's motion to dismiss the Plaintiff's first six causes of action, pursuant to CPLR 3211(a)(7) is GRANTED.

Thus the plaintiff's complaint is dismissed in its entirety as against the Time Warner defendants.

Borghese's Motion to Dismiss Plaintiff's First Six Causes of Action

The Defendant Borghese's motion to dismiss the Plaintiff's first six causes of action, pursuant to CPLR 3211(a)(7) is also GRANTED.

The Defendant Borghese submits in support of his motion that in addition to the reasons stated in support of the Time Warner's motion, the first six causes of action asserted against "All Defendants" must be dismissed against Borghese because there are no allegations made against Borghese in respect of these causes of action. Furthermore, it is well settled under New York law that an employee, such as Borghese, cannot be held personally liable for a breach of a contract between his employer and a plaintiff (Cruz v. NYNEX Inf. Res., 263 AD2d 285, 291 [1st Dept. 2000]). Thus, the Plaintiff's complaint does not plead claims against Borghese for breach of contract or breach of the related implied covenant of good faith and fair dealing under the contract. Additionally, the Plaintiff fails to allege that Borghese participated in, or benefitted from, the actions giving rise to his claims for unjust enrichment or the tortious acts of fraud and fraudulent misrepresentation. The Plaintiff's allegation that Borghese had knowledge of "the aforesaid conduct and scheme...and approved of it," is insufficient to state a claim against Borghese for unjust enrichment, fraud and fraudulent misrepresentation (Krinos Foods, Inc. v. Vintage Food Corp., 30 AD3d 332, 333 [1st Dept. 2006]).

For these reasons, the Defendant, Borghese's motion to dismiss the Plaintiff's first six causes of action as against him is GRANTED.

Seventh Cause of Action: Tortious Interference with Contractual Relations

The Plaintiff's seventh cause of action brought only against the Defendant Borghese sounding in "tortious interference with contractual relations," is also DISMISSED. The Plaintiff maintains that Borghese "interfered with the contract between [Plaintiff] and Time Warner Cable by attempting to undermine [Plaintiff] in his capacity as Account Manager to cause him to be discharged or to have his commission and bonus schedule reduced or eliminated" (Complaint, ¶174). The Plaintiff's complaint also asserts that Borghese had knowledge of the Corporate Defendants' "conduct and scheme to disregard [Plaintiff's] economic and financial interests" (Id., ¶98). In order to state a cause of action for tortious interference with contractual relations, it must be alleged that (1) a contract existed between the plaintiff and a third party; (2) that the defendant knew of the contract; (3) that the defendant intentionally induced the third party to breach or otherwise made performance impossible; and (4) that the plaintiff suffered damages as a result (Bayside Carting, Inc. v. Chic Cleaners, 240 AD2d 687, 688 [2nd Dept. 1997]). Allegations supporting these elements "cannot be conclusory, but must include facts sufficient to support the conclusions to be drawn" (Tsadik v. Beth Israel Med. Ctr., 13 Misc 3d 359, 365 [Sup. Ct. New York 2006]). The Plaintiff asserts that Borghese has tortiously interfered with the Sales Compensation Plan. However, the Plaintiff has [*11]failed to adequately plead the relevant contractual provisions that were purportedly breached (Risley v. Rubin, 272 AD2d 198, 198-99 [1st Dept. 2000]). Furthermore, the Plaintiff has failed to allege that Borghese was a third party to the relevant contract(s), who may be held liable for tortious interference. As a result of the "third party" requirement "[a]n employee of a contracting party can only be sued for tortious interference with contract if the employee "exceeds the bounds of his or her authority" (Kosson v. "Aglaze", 203 AD2d 112, 113 [1st Dept. 1994] affd 84 NY2d 1019 [1995]). While the Plaintiff alleges that Borghese, as an employee of Time Warner Cable, interfered with the Plaintiff's contractual relations with Time Warner Cable, the Plaintiff fails to adequately plead that Borghese exceeded his employment authority. In fact, although the Plaintiff's complaint contains a vague conclusory assertion that "defendant, Borghese, was acting ultra vires" (Complaint, ¶173), the Plaintiff never identifies the scope of Borghese's authority, any actions taken by Borghese against the Plaintiff in which Borghese was acting outside the scope of his authority, or even specify the context in which Borghese allegedly acted "ultra vires."

Additionally, in his seventh cause of action, the Plaintiff has also failed to adequately plead that Borghese intentionally and improperly induced a breach of the Plaintiff's contract and that any breach occurred (Hayles v. Advanced Travel Mgmt. Corp., 2003 U.S. Dist. LEXIS 23407 [SDNY 2004]). The "plaintiff must also plead that a defendant used wrongful means' to induce the third party to breach the contract." "Wrongful means" include physical violence, fraud, misrepresentation, civil suits and criminal prosecutions and some degree of economic pressure (Id; Guard Life Corp. v. S. Parker Hardware Mfg. Corp., 50 NY2d 183, 191 [1980]). In support of his tortious interference claim, the Plaintiff pleads only that Borghese made several off hand remarks to certain unnamed employees concerning the potential termination of the Plaintiff's employment. He does not plead that Borghese employed physical violence, fraud, misrepresentation or other forms of coercion to accomplish this result, that he communicated his remarks to any individual who was a decision maker concerning the Plaintiff's employment or terms of employment (or that Borghese had any power to influence the Plaintiff's employment or terms of employment), or that "but for" Borghese's remarks, the actions of the corporate Defendants would have been different in any way.

Accordingly, the Defendant Borghese's motion to dismiss the Plaintiff's complaint is herewith GRANTED and the claims are DISMISSED.

Accordingly, it is hereby

ORDERED, that the above entitled action is dismissed with prejudice; and it is further

ORDERED, that the Defendants' counsel shall serve a copy of this Order with Notice of Entry upon the Plaintiff's counsel pursuant to CPLR § 2103 (b) 1, 2 or 3, within ten (10) days of the date this Order is entered. PROOF OF SERVICE MUST BE FILED WITH THE COUNTY CLERK.

This constitutes the decision and order of this court.

DATED:Mineola, New York

July 1, 2009

________________________________ [*12]

Hon. Randy Sue Marber, J.S.C.

XXX Footnotes

Footnote 1:Defendants "Time Warner Cable LLC", "Time Warner NY Cable LLC", and "Time Warner Cable of New York City" are affiliates of defendant "Time Warner Cable Inc." and are collectively referred to herein as "Time Warner."