Motion by Defendant Joseph Abate for leave to reargue this court's order dated September 11, 2006 which dismissed his counterclaim for discrimination under New York Executive Law § 296 is granted and upon reargument the prior determination is adhered to. Second motion by Defendant Joseph Abate for an order dismissing the claims against him pursuant to CPLR 3211(a)(7), 3211(c), and or 3212 is granted in part and denied in part and the First Cause of Action for return of advanced but unearned base pay is dismissed, the Second and Third Causes of Action for a permanent injunction are dismissed as moot upon consent , the [*2]Seventh Cause of Action for larceny by embezzlement is dismissed, and the motion is denied in all other respects. Cross-motion by Third Party Defendant Stuart Hayim for an order dismissing the Third Party Claims against him as set forth in the Amended Complaint is granted in part and denied in part, and the First, Fifth and Sixth counterclaims sounding in breach of contract, violation of the Labor Law and discrimination are dismissed against him for failure to state a cause of action, and the Second, Third, and Fourth counterclaims sounding in fraud, fraud in the inducement and negligent misrepresentation are sustained. Conditional cross-motion by Plaintiff Recovery Racing, LLC d/b/a Mercedes Benz of Massapequa for reargument in the event that the court grants Abate's motion for reargument is denied, as the conditional event has not occurred. Although the court technically granted the motion to reargue, the prior determination was adhered to, thus rendering the cross-motion for reargument moot.

Defendant Joseph Abate seeks reargument of this court's order dated September 11, 2006 which dismissed his counter claim against Recovery Racing for discrimination in violation of Executive Law §296(3). The section requires a reasonable accommodation of an employee's disability. As the requirement of reasonable accommodation was not addressed on the prior motion, leave to reargue is granted. However, upon reargument the prior determination is adhered to.

Executive Law § 296(3) provides that it is "an unlawful discriminatory practice" for an employer "to refuse to provide reasonable accommodations to the known disabilities of an employee" in connection with his work, but does not require accommodation which imposes "undue hardship" on the operation of the employer's business. The nature of the accommodation needed may be considered as a factor in relation to the defense of undue hardship (Exec. Law § 296[3][b][iii]; see also, 9 NYCRR § 466.11 ).

Abate asserts that he suffers from Parkinson's disease which is exacerbated by third party defendant Stuart Hayim's volatile and irascible personality. He avers that he was aware of Hayim's personality problems prior to his employment, but Hayim had assured him that he would curb his angry behavior in order not to cause undue stress to Abate. Abate avers that the stress induced by Hayim's outbursts and loss of control causes him uncontrollable shaking from his disease, and necessitated his leaving his $350,000 per year position with Recovery Racing. He avers that he could not continue to work for Hayim, as his Parkinson's Disease was exacerbated by stress when Hayim was out of control, yelling, throwing things, and slamming doors.

The court finds that as a matter of law an employer need not engage in anger management counseling to accommodate an employee's disability. Although an explosive personality may be tempered with an anger management program or counseling, and anger management may be imposed in child neglect and matrimonial contexts to protect children (Matter of Joquan Jomaine-Anthony V., 39 AD3d 868 [2d Dept 2007]; Chamberlain v. Chamberlain, 24 AD3d 589 [2d Dept 2005]), the requirement goes beyond "reasonable" accommodation in the workplace. Accommodation for stress has been lawfully refused (see, e.g., Pimentel v Citibank, N.A., 29 AD3d 141, lv app denied 7 NY3d 707 [2006][Plaintiff's request for an alternative position with no customer or people contact and at a reduced level of stress was unreasonable as a matter of law]). Furthermore, Plaintiff has not offered, nor has this court's research uncovered, any authority which mandates counseling for an employer in order to accommodate an employee's [*3]disability activated by stress. Accordingly, the court adheres to its prior determination.

Turning to Abate's motion to dismiss the complaint, the Second and Third Causes of Action are dismissed on consent as moot.

Plaintiff's First Cause of Action seeks return of so much of a base wage advance as remained unearned. Pursuant to the Employment Agreement executed February 1, 2005 Abate received an "Up Front" payment of $120,000 which was to be earned at the rate of $10,000 per month. This sum reflected two-thirds of Abate's base salary not including commissions.

Subdivision 7 of the Employment Agreement outlines various termination provisions, including termination for and without cause, resignation, disability, and death. An Addendum provides that Abate may retain the unearned portion of the Up Front Payment if he remains with Recovery Racing for six months, unless terminated for cause. Plaintiff avers that Abate was terminated for cause after he resigned based upon his failure to provide the required written notice.

Abate could not be terminated for cause after his written resignation. His written notice to Plaintiff admittedly preceded the purported firing, although the notice was not timely under the contract. The Agreement provided no grounds for Plaintiff to terminate the employment of a former employee (cf. Flynn v. State Ethics Com'n, Dept. of State, State of NY, 87 NY2d 199, [1995][State Ethics Commission did not have authority to impose fine on former employee]). Accordingly, as Abate had been employed for at least six months, he was entitled to keep advances pursuant to the Addendum to the Employment Agreement, and the First Cause of Action is dismissed.

The Fourth and Fifth Causes of action allege that Defendant Abate breached his duty of good faith and loyalty by misappropriating Recovery Racing's customer list and confidential information and using it to unfairly compete.

In determining the motion to dismiss the allegations of the complaint are accepted as true (see, Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372 [2d Dept 2002]). Summary judgment is premature when discovery is necessary to ascertain evidence within the defendant's "sole knowledge and control" (Henbest & Morrisey v. W.H. Ins. Agency, 259 AD2d 829, 830 [3d Dept 1999]).

Addressing the adequacy of the pleading, one acting as an "agent or employee of another" is "prohibited from acting in any manner inconsistent with his agency or trust" and is at all times "bound to exercise the utmost good faith and loyalty in the performance of his duties" (Duane Jones Co. v. Burke, 306 NY 172, 187-188 [1954]). The allegations that Abate took confidential employee information states a cause of action for breach of loyalty and trust (Henbest & Morrisey v. W.H. Ins. Agency, supra). Accordingly, the Fourth and Fifth Causes of Action are not subject to dismissal for failure to state a cause of action.

The Sixth Cause of Action for breach of fiduciary duty alleges that Abate sold premium and used automobiles at no profit to friends and business acquaintances and eliminated the competition for used automobiles in order to sell to a friend. Abate owed his employer a fiduciary duty (Minnelli v. Soumayah, 41 AD3d 388, 2007 WL 1841119 [1st Dept 2007] and the allegations of self dealing, taken as true, are sufficient to state a cause of action for breach of fiduciary duty (Nathanson v. Nathanson, 20 AD3d 403 [2d Dept 2005]).

The Seventh Cause of Action for larceny by embezzlement is dismissed. The "essence" [*4]of larceny by embezzlement is "the conversion by the embezzler of property belonging to another which has been entrusted to the embezzler to hold on behalf of the owner"(People v. Yannett, 49 NY2d 296, 301 [1980]). Here there is no allegation that Abate received or converted the funds derived from the sale of Recovery Racing's premium or used automobiles, and accordingly, the Seventh Cause of Action is dismissed.

Turning to the Third Party Complaint against Stuart Hayim, the principal of Recovery Racing, the First Cause of Action for breach of contract is dismissed. A corporation "exists independently of its owners, as a separate legal entity" (Morris v. Department of Taxation, 82 NY2d 135, 140 [1993]). Hayim was not a party to the Employment Agreement in his personal capacity and thus cannot be liable for breach of contract (Black Car and Livery Ins., Inc. v. H & W Brokerage, 28 AD3d 595 [2d Dept 2006]).

The same does not hold true for claims sounding in tort, causes of action for fraud, fraud in the inducement, and negligent misrepresentation, were sustained against Recovery Racing by the September 11, 2006 order. Corporate principals and officers are liable for those torts they "personally commit" (Michaels v. Lispenard Holding Corp., 11 AD2d 12, 14 [1st Dept 1960]). Accordingly, the allegations against Hayim withstand the motion to dismiss.

The Fifth Cause of Action alleging a violation of Labor Law § 198-a is dismissed. Section 198-a of the Labor Law provides only for penal sanctions against officers and agents of corporations, and the Court of Appeals has refused to imply a civil cause of action against them based on Labor Law § 198-a (Stoganovic v. DiNolfo, 61 NY2d 812 [1984], affirming on the reasons stated in the memorandum of the Appellate Division at 92 AD2d 729 [4th Dept 1983]). Abate's further claim pursuant to Labor Law § 663 is without merit, as Labor Law § 663 applies only to Article 19, the Minimum Wage Act (Labor Law § 650 et seq.). Labor Law § 663 states that it applies to non payment of wages "under the provisions of this article", i.e., article 19, the Minimum Wage Act. Abate's $350,000 annual base pay and commissions do not fall within article 19. Accordingly, the Fifth Cause of Action is dismissed against Hayim.

The Sixth Cause of Action for discrimination and constructive discharge based upon discrimination is dismissed for the reasons stated above.

Dated: August 10, 2007

J.S.C.