[*1]
Middle E. Airlines Air Liban v Cordero
2011 NY Slip Op 50669(U) [31 Misc 3d 1214(A)]
Decided on April 12, 2011
Civil Court Of The City Of New York, Kings County
Edwards, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 12, 2011
Civil Court of the City of New York, Kings County


Middle East Airlines Air Liban, Plaintiff,

against

Damaris Cordero, Defendant.




63755/10



Plaintiff was represented by Alvin Green, Esq. of Seeham, Seeham, Meltz & Peterson, LLP, 145 East 48th Street, Suite 5F, NYC 10017; Defendant was represented by Joshua Annenberg, Esq., 111 John Street, 8th flr., NYC 10038

Genine D. Edwards, J.



In this action plaintiff seeks reimbursement of wages and benefits paid[FN1] to the defendant, a former employee. Defendant moves/cross-moves to dismiss the complaint and proposed amended complaint pursuant to CPLR § 3211 (A)(1), (7), and CPLR § 3016(b). Plaintiff opposes both motions and moves to amend its complaint pursuant to CPLR § 3025(b).

FACTS


In support of the motion to dismiss, defendant argues that there is no contract that requires her to reimburse the defendant for previously paid wages and benefits. In the absence of such an agreement, [*2]defendant argues that New York law prohibits an employer from recovering wages or benefits paid to a former employee. Plaintiff admits that it is a well-established principal that an employer cannot recover wages paid to a former employee absent a contract specifically providing for such remedy. It argues, however, that the foregoing principal is not applicable to the present action because plaintiff's claim is based upon defendant's manipulation of the sick and leave records to scamper off with "unearned" wages and benefits. To that end, plaintiff seeks to amend the complaint to state claims for breach of loyalty and breach of fiduciary duty.[FN2] In opposition, defendant argues that the proposed amended complaint does not meet the requirements of CPLR § 3016(b) because it is bereft of any factual description of the alleged misconduct. She also argues that documentary evidence conclusively bars the proposed amended complaint.

Defendant proffers the "Conditions of Service" of her employment. The agreement states that it is not an employment contract, that it does not create any contractual rights, and that it is not a guarantee of employment for a definite period of time. See Notice of Motion, Exhibit D. The "Conditions of Service" provides the plaintiff's policies regarding annual leave, sick days, and medical coverage. Absent from these policies is a clause that an employee must reimburse plaintiff for advances in wages and benefits. And, plaintiff does not contend or allude to such a clause.

Plaintiff provides two affidavits from its manager, Adib Kassis. In the first affidavit, Mr. Kassis alleges that "it was [his] understanding that the extra days taken by [the defendant] would be earned by her in the future or deducted from future pay checks if she would keep working, which is now impossible as she suddenly resigned."[FN3] Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Affidavit of Adib Kassis. He also stated that the "medical and dental insurance was [sic] prepaid for the period after she resigned . . . ." Id. In his supplemental affidavit, however, Mr. Kassis states that "unknown to [him], [defendant] manipulated [employee leave] records to her advantage in violation of her duties, taking more leave than she was entitled to." Amended Notice of Motion, Supplemental Affidavit of Adib Kassis. The supplemental affidavit as well as the proposed amended complaint fails to describe defendant's employment function or role, or shed any light on the facts or circumstances regarding defendant's violation of her duties.

LAW


A party may move to dismiss one or more causes of action on the ground that a defense is founded upon documentary evidence. See NY CPLR § 3211(a)(1). To prevail on the motion, the documents relied upon must definitively dispose of the other party's claims. See Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314, 746 N.Y.S.2d 858 (2002); Sokol v. Leader, 74 [*3]AD3d 1180, 904 N.Y.S.2d 153 (2d Dept. 2010); Fontanetta v. John Doe 1, 73 AD3d 78, 898 N.Y.S.2d 569 (2d Dept. 2010). A party may also move to dismiss a complaint if it fails to state a cause of action. See CPLR § 3211 (a)(7). However, if the Court can discern factual allegations, which taken together manifest a cause of action cognizable at law, the motion for dismissal will fail. See Wilner v. Allstate Ins. Co., 71 AD3d 155, 893 N.Y.S.2d 208 (2d Dept. 2010).

A party may seek to amend a pleading at any time by leave of the Court. See NY § CPLR 3025(b). The party is not required to establish the merits of the proposed amendment. See Lucido v. Mancuso, 49 AD3d 220, 851 N.Y.S.2d 238 (2d Dept. 2008). Instead, leave to amend is "granted unless the proposed amendment is palpably insufficient or patently devoid of merit or where the delay in seeking the amendment would cause prejudice or surprise."[FN4] Commissioners of State Ins. Fund v. Service Unlimited, USA, Inc., 50 AD3d 1085, 857 N.Y.S.2d 231 (2d Dept. 2008). See Holtkamp v. Parklex Associates, 30 Misc 3d 1226(A), 2011 NY Slip Op. 50208(U) (Sup. Ct., Kings County 2011) ("When evaluating a motion for leave to amend a complaint to add a new cause of action, the motion for leave to amend will be denied . . . only if the new cause of action would not withstand a motion to dismiss under CPLR 3211(a)(7).'" Lucido,49 AD3d at 225 citing Norman v. Ferrara, 107 AD2d 739, 484 N.Y.S.2d 600 (2d Dept 1985)); Schlissel v. Subramanian, 25 Misc 3d 1219(A), 901 N.Y.S.2d 910 (Sup. Ct., Kings County 2009). Notwithstanding the foregoing, in a breach of loyalty and breach of fiduciary duty action, the "circumstances constituting the wrong shall be stated in detail." See CPLR 3016(b).

FINDINGS


The Court accepts all of plaintiff's allegations as true and finds the proposed amendment palpably insufficient and patently devoid of merit. Therefore, leave to amend the complaint is denied.[FN5] The complaint, in its present form, is dismissed because an employee is under no obligation to reimburse an employer for advances in wages and benefits absent an agreement, express or implied.[FN6] See Centerbank Mortg. Co. v. Shapiro, 237 AD2d 477, 655 N.Y.S.2d 596 (2d Dept. 1997); Royal Distributors Co. v. Friedman, 141 N.Y.S.2d 786 (Sup. Ct., New York County 1955); NY Jur Employment § 150; C.J.S Employer § 192.

This constitutes the decision and order of the Court.

Date: April 12, 2011________________________

Genine D. Edwards

Acting Supreme Court Justice

Footnotes


Footnote 1:

The amount sued for consists of salary paid to the defendant for authorized sick days and leave, as well as prepaid medical and dental insurance premiums.

Footnote 2:

Plaintiff also seeks to have defendant return all file and computer materials she allegedly took when she terminated her employment.

Footnote 3: The Court notes that defendant provided copies of the "absence and leave permit" and the "leave application" forms, which confirm that plaintiff authorized the sick/leave days. Plaintiff does not dispute the accuracy of these forms.

Footnote 4: Prejudice is some special right lost in the interim, some change of position or some trouble or expense that could have been avoided had the original pleading contained what the amended pleading wants to add. See Corsale v. Pantry Pride Supermarket, Inc., 197 AD2d 659, 602 N.Y.S.2d 887 (2d Dept. 1993); Barbour v. Hosp. for Special Surgery, 169 AD2d 385, 563 N.Y.S.2d 418 (1st Dept. 1991).

Footnote 5:

The Court did not reach the merits of the part of the defendant's cross-motion that sought to dismiss the proposed amended complaint pursuant CPLR § 3016(b) because to reach that part of the motion is to acknowledge that the proposed amended complaint is meritorious.

Footnote 6: It should be noted that the "absence and leave permit" and the "leave application" forms do not constitute an agreement for the defendant to reimburse the plaintiff for the payment of wages or benefits.