Gencarelli v. Cablevision System Corporation, et al

Filing 37

ORDER granting 28 Motion to Dismiss; denying 33 Motion to Compel; denying 33 Motion for Sanctions. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendant's motion to dismiss the amended complaint is granted. However, in an abundance of caution, the Court will grant plaintiff leave to re-plead if he wishes to address the pleading defects identified in this Memorandum and Order. Plaintiff may file a second amended complaint within thirty days of the issuance of this Order. Failure to file a second amended complaint will result in dismissal of the complaint with prejudice. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/27/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-cv-04092 (JFB)(ARL)
_____________________

JAMES GENCARELLI,
Plaintiff,
VERSUS

CABLEVISION SYSTEMS CORPORATION,
Defendant.

___________________
MEMORANDUM AND ORDER
March 27, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff James Gencarelli
(“plaintiff” or “Gencarelli”) brings this
action for breach of contract against
defendant Cablevision Systems Corporation
(“defendant” or “Cablevision”), alleging that
defendant terminated his employment
improperly. In particular, Gencarelli alleges
that, at some point after an interview on July
1, 2010, he accepted a contract for
employment, and then later received a letter
from Cablevision, dated August 10, 2010,
stating that Cablevision would not be
extending an offer of employment to him.
Plaintiff does not allege that this alleged
contract was in writing.
Defendant now moves to dismiss the
first amended complaint (“amended
complaint”), pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. For

the reasons set forth below, the defendant’s
motion is granted. Plaintiff does not allege
that the alleged employment agreement was
for a fixed duration, or that there were any
express limitations on Cablevision’s ability
to terminate at will. It is well settled under
New York law that at-will employment may
be terminated at any time by either party for
any reason. Therefore, even accepting the
allegations in the amended complaint as
true, plaintiff cannot state a plausible claim
for breach of contract as a matter of law.
Similarly, no claim for negligent
misrepresentation or promissory estoppel
can exist for an at-will employment contract
as alleged in the amended complaint.
However, in an abundance of caution, the
Court will grant plaintiff leave to re-plead
his claim to allow him to attempt to add
additional allegations, if there is a factual
basis for doing so, to provide a plausible

opposition.
On February
defendant filed its reply.

basis for concluding that this was not an atwill employment contract.
I.
A.

BACKGROUND

2011,

By letter dated April 19, 2011, defendant
notified the Court that on April 5, 2011, the
plaintiff had served an amended complaint
on Cablevision’s former attorney and
requested a pre-motion conference in
anticipation of its motion to dismiss the
amended complaint. At a telephone
conference on May 27, 2011, the Court set a
briefing schedule for the defendant’s motion
to dismiss the amended complaint, and
permitted the parties to incorporate by
reference the arguments made in their earlier
motion papers. On June 10, 2011, defendant
filed its renewed motion to dismiss.
Plaintiff filed his opposition on June 30,
2011, and defendant filed its reply on July
22, 2011. The Court has fully considered
the submissions of the parties.1

The Amended Complaint

The following facts are taken from the
amended complaint and are not findings of
fact by the Court. Instead, the court assumes
these facts to be true for purposes of
deciding the pending motion to dismiss and
will construe them in a light most favorable
to plaintiff, the non-moving party.
On July 1, 2010, plaintiff interviewed for
employment as a sales representative at
Cablevision in the town of West Nyack,
New York. (Amended Complaint at ¶ 3.)
This was plaintiff’s second interview for the
position of sales representative. (Id.) At the
interview he met with Jeff Howes, a member
of defendant’s management personnel, and
his assistant Al Birnstill. (Id.) Plaintiff was
offered employment at this meeting. (Id.)
Plaintiff accepted the offer. (Id.) Plaintiff
alleges that in lieu of accepting employment
for a different job, plaintiff accepted the
offer of employment that was given to him
by agents and representatives of defendant.
(Id.)

II. STANDARD OF REVIEW
In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.

On August 10, 2010, plaintiff received a
letter from Cablevision’s Human Resources
Department that stated that he would not be
extended an offer of employment from
Cablevision. (Id.)
B.

10,

Procedural History

On September 7, 2010, plaintiff filed his
complaint and a motion to proceed in forma
pauperis. Plaintiff’s motion to proceed in
forma pauperis was granted on September
10, 2010.
On December 30, 2010,
defendant filed a motion to dismiss. On
January 7, 2011, plaintiff filed his

1

On December 23, 2011, plaintiff filed a motion to
compel responses to discovery and a motion for
sanctions. Defendant filed a letter response to this
motion on December 28, 2011. Plaintiff is not
entitled to discovery unless he can plead a plausible
claim that can survive a motion to dismiss which, as
discussed infra, he has failed to do. Thus, plaintiff’s
motion for discovery is denied.
2

III. DISCUSSION

Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, 127
S.Ct. 1955.

A.

Employment At Will

In New York, it well settled that
“[w]here an employment is for an indefinite
term it is presumed to be hiring at will
which may be freely terminated by either
party at any time for any reason or even no
reason.” Murphy v. Am. Home Prods. Corp.,
58 N.Y.2d 293, 300, 448 N.E.2d 86, 461
N.Y.S.2d 232 (1983), superseded by statute
on other grounds as stated in Leibowitz v.
Bank Leumi Trust Co., 152 A.D.2d 169, 548
N.Y.S.2d 513 (App. Div. 1989); see also
Baron v. Port Auth., 271 F.3d 81, 85 (2d
Cir. 2001) (citing Sabetay v. Sterling Drug,
Inc., 69 N.Y.2d 329, 333, 506 N.E.2d 919
(1987)). However, an employee may rebut
this presumption “[b]y establishing an
express limitation in the individual contract
of employment curtailing an employer’s
right to terminate at will.” Baron, 271 F.3d
at 85 (citing Gorill v. Icelandair/Flugleidir,
761 F.2d 847, 851 (2d Cir. 1985)).
Accordingly, “[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, 69 N.Y.2d at 333;
see also DePetris v. Union Settlement Ass’n,
Inc., 86 N.Y.2d 406, 410, 657 N.E.2d 269,
633 N.Y.S.2d 274 (1995). An employee
may also rebut the presumption by alleging
that he “relie[d] to his detriment on an
employer’s express written policy limiting
its right to discharge.” Chimarev v. TD
Waterhouse Investor Servs., Inc., 99 F.
App’x 259, 262 (2d Cir. 2004); see
Geldzahler v. New York Med. Coll., 663 F.
Supp. 2d 379, 388 (S.D.N.Y. 2009); see also
Hunter v. Kaufman Enters., Inc., No. CV
09-5540 (JS)(AKT), 2011 WL 3555809, at
*3 (E.D.N.Y. Aug. 8, 2011) (“the
presumption that an employment is at-will
may be rebutted and New York will

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), setting forth a twopronged approach for courts deciding a
motion to dismiss. The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” 129 S.Ct. at 1950.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.”
Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to
construe
the
[plaintiff’s]
pleadings . . . liberally.” McCluskey v. New
York State Unified Ct. Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008); McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004)). A pro se
plaintiff’s complaint, while liberally
interpreted, still must “‘state a claim to relief
that is plausible on its face.’” Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010)
(citing Iqbal, 129 S.Ct. at 1949); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (applying Twombly and Iqbal to pro
se complaint).

3

recognize an action for breach of contract
where the employer made its employee
aware of an express written policy limiting
the right of discharge and the employee
detrimentally relied on that policy”)
(quotations
and
citations
omitted).
“However, the New York Court of Appeals
has warned that this is a ‘difficult pleading
burden.’” Hunter, 2011 WL 3555809, at *3
(citing Sabetay, 69 N.Y.2d at 334-35).
B.

an at-will employee, and as such, was
terminable at any time. As discussed below,
this Court agrees with the defendant and
concludes that plaintiff’s claim for breach of
his employment contract, as alleged, cannot
prevail as a matter of law because an at-will
employee can be terminated at any time for
any reason.
Plaintiff’s amended complaint merely
alleges (1) that he was orally offered
employment at his meeting with Jeff Howes
and Al Birnstill, and (2) that he accepted the
employment with Cablevision in lieu of
accepting a different job offer. However,
even assuming the facts are true as set forth
in plaintiff’s amended complaint, it is
presumed that plaintiff was hired as an “[a]t
will [employee], terminable at any time by
either party.” See Baron, 271 F.3d at 85.
Plaintiff has not alleged any facts that would
rebut this presumption. Plaintiff merely
alleges that an offer of employment was
made and he accepted it. He does not allege
that there was an express limitation in his
contract “[c]urtailing an employer’s right to
terminate at will.” See id. Additionally,
plaintiff does not allege that his offer of
employment was for a definite term, or that
there was an express written policy limiting
his right to discharge upon which he relied.
See Chimarev, 99 F. App’x at 262; Sabetay,
69 N.Y.2d at 333. Accordingly, based upon
the allegations in the amended complaint,
plaintiff was an at-will employee and his
breach of contract claim must fail as a
matter of law.3 See Hunter, 2011 WL
3555809, at *4 (“Since the Plaintiff fails to
plead the existence of any express written

Application2

Plaintiff alleges that, by terminating his
employment, defendant breached his
employment contract. Defendant argues
that, even if plaintiff did in fact accept
employment with Cablevision, plaintiff was
2

As an initial matter, defendant argues, based upon
the current allegations in the amended complaint, an
employment contract did not exist between plaintiff
and defendant because plaintiff did not allege that he
communicated his acceptance to the defendant.
(Def.’s Memo at 4; Def.’s Renewed Memo at 3.) The
Court agrees. In particular, both the initial and
amended complaint state that, “Plaintiff accepted the
offer of employment from [Cablevision] by the action
of not taking the alternative position in another
company that was readily available, consummating
the agreement of employment from [Cablevision].”
(Complaint at ¶ 3; Amended Complaint at ¶ 3.)
Absent some communication of the acceptance of the
offer, no contract existed, and the offer could be
revoked at any time. See, e.g., D’Agostino Gen.
Constr. v. Steve Gen. Contr., 267 A.D.2d 1059, 700
N.Y.S.2d 351, 351 (App. Div. 1999) (“The record
establishes . . . that defendant never communicated its
acceptance of the original bid to plaintiff, and thus no
contract was formed based upon that bid.”) (citations
omitted); see also Marks v. New York Univ., 61 F.
Supp. 2d 81, 89 (S.D.N.Y. 1999) (“It is well
established under New York law that an offeree’s
power of acceptance is terminated when an offer is
validly revoked.”). However, as discussed below,
even if plaintiff alleged that he communicated his
acceptance to Cablevision and an employment
contract existed, the breach of contract claim still
could not survive a motion to dismiss because an at
will employment contract can be terminated by either
party at any time for any reason.

3

To the extent plaintiff’s complaint sets forth a claim
for the tort of wrongful termination, his claim is also
dismissed. The State of New York does not
recognize the tort of wrongful termination. See
Murphy, 58 N.Y.2d., at 197 (“This court has not and
does not now recognize a cause of action in tort for
abusive or wrongful discharge of an employee; such
recognition must await action of the Legislature.”)
4

v. Oakwood Care Center, 5 A.D.3d 740, 774
N.Y.S.2d 562, 562 (App. Div. 2004) (“since
the plaintiff was offered only at-will
employment,
she
cannot
establish
reasonable reliance, a necessary element to
recover damages on theories of fraudulent
misrepresentation,
negligent
misrepresentation, and promissory estoppel”)
(citations omitted); accord Nichols v. Xerox
Corp., 72 A.D.3d 1501, 899 N.Y.S.2d 524,
524 (App. Div. 2010).

policy which limits McDonald’s right to
discharge an employee, the Court declines to
create an exception to New York’s at-will
employment doctrine and further declines to
recognize an action for breach of contract in
this instance.”); Boata v. Pfizer, Inc., No. 10
Civ. 4390 (DLC), 2010 WL 4878872, at *5
(S.D.N.Y. Dec. 1, 2010) (“Boata has failed
to plead sufficient facts to establish a claim
for a breach of an implied contract of
employment.
Nothing in the PIP
[Performance Improvement Plan] indicates
that it is an agreement establishing a fixed
duration for Boata’s employment.”); Hughes
v. Standard Chartered Bank, PLC, No. 09
Civ. 4595 (PKC), 2010 WL 1644949, at *6
(S.D.N.Y. Apr. 14, 2010) (“Because the
amended complaint does not rebut the
presumption that [plaintiff] was an at will
employee, the defendants’ motion to dismiss
the breach of contract claim is granted.”);
Priovolos v. St. Barnabas Hosp., 1 A.D.3d
126, 127, 766 N.Y.S.2d 435, 436 (App. Div.
2003) (“Because plaintiffs were at-will
employees, the court properly dismissed
their claim for breach of contract or
improper termination.”); see also Parday v.
Gray, 07 Civ. 6324 (LAP), 2008 WL
2756331, at *4 (S.D.N.Y. July 15, 2008)
(“Here, it is undisputed that Plaintiff was an
at-will employee, and therefore, under New
York State law, her contract claims must be
dismissed.”).

In sum, according to plaintiff’s
allegations in the amended complaint, the
employment contract was an at-will
employment
contract
terminable
by
Cablevision at any time. Thus, the amended
complaint does not state a plausible claim
for breach of contract, or any other plausible
claim under New York law, and must be
dismissed.
IV. LEAVE TO REPLEAD
Although plaintiff has not requested
leave re-plead his amended complaint, the
Court has considered whether plaintiff
should be given an opportunity to re-plead.
The Second Circuit has emphasized that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave to
amend at least once when a liberal
reading of the complaint gives any
indication that a valid claim might be
stated.

Similarly, to the extent that plaintiff’s
amended complaint could be liberally
construed to also be asserting a claim for
negligent misrepresentation or promissory
estoppel, such claims also must fail based
upon the allegations in the complaint. In
particular, since an at-will employment
contract can be terminated at any time, a
plaintiff cannot establish the requisite
element of reasonable reliance on the
alleged representations by Cablevision
regarding future employment. See Marino

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a).

5

this order would not be taken in good faith;
therefore, in forma pauperis status is denied
for purposes of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).

Defendant argues that plaintiff should
not be given leave to re-plead because he
already had an opportunity to do so in his
amended complaint in response to the initial
motion to dismiss. However, defendant has
overlooked the fact that the amended
complaint was filed on September 27, 2010
(prior to the initial motion to dismiss on
November 17, 2010), but was not served
until after the motion was filed. Thus,
plaintiff has not had an opportunity to
address the pleading defects, if there is a
factual basis to do so, that were identified in
the motions to dismiss and analyzed in this
Memorandum and Order. Therefore, in an
abundance of caution, the Court will permit
plaintiff an opportunity to file a second
amended complaint if there are additional
facts he can allege which establish (1) that
he communicated his acceptance of the offer
to Cablevision, and (2) that the contract was
not an at-will contract, but rather was of a
fixed duration or there was some other
express limitation, in the contract or in a
written policy relied upon by plaintiff,
curtailing Cablevision’s right to terminate at
will.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated:

March 27, 2012
Central Islip, NY
***

Plaintiff is proceeding pro se: James
Gencarelli, 2185 Lemoine Ave, Fort Lee, NJ
07024. The attorneys for the defendant are:
Steven Gerber, Esq. and Todd R. Harris,
Esq. of the law firm Gonzalez Saggo and
Harlan LLP, 292 Madison Avenue, 19th
Floor, New York, NY 10017.

V. CONCLUSION
For the foregoing reasons, defendant’s
motion to dismiss plaintiff’s amended
complaint, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, is granted.
However, in an abundance of caution, the
Court will grant plaintiff leave to re-plead if
he wishes to address the pleading defects
identified in this Memorandum and Order.
Plaintiff may file a second amended
complaint within thirty days of the issuance
of this Order. Failure to file a second
amended complaint will result in dismissal
of the complaint with prejudice.
The Court certifies, pursuant to 28
U.S.C. § 1915 (a)(3), that any appeal from
6