Moon v. Clear Channel Communications, Inc.

307 A.D.2d 628, 763 N.Y.S.2d 157, 2003 N.Y. App. Div. LEXIS 8298
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 24, 2003
StatusPublished
Cited by31 cases

This text of 307 A.D.2d 628 (Moon v. Clear Channel Communications, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moon v. Clear Channel Communications, Inc., 307 A.D.2d 628, 763 N.Y.S.2d 157, 2003 N.Y. App. Div. LEXIS 8298 (N.Y. Ct. App. 2003).

Opinion

Mercure, J.P.

Cross appeals from an order of the Supreme Court (Teresi, J.), entered May 16, 2002 in Albany County, which, inter alia, partially granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiffs, professionally known as radio personalities Mason [629]*629and Sheehan, entered into an employment contract with defendant Radio Enterprises, Inc. (hereinafter REI), the owner of a radio station, in September 1997. The contract permitted REI to terminate plaintiffs, upon 90 days’ notice, “for business reasons at any time before the Termination Date set forth therein.” If plaintiffs were terminated for business reasons, they were entitled to the remainder of their salary for the year, and one year’s additional salary as severance pay.

In November 1997, three months into their employment with REI, ratings for plaintiffs’ program began to decline after an initial rise. In May 1998, defendants terminated plaintiffs’ employment, citing the “business reasons” portion of the contract. Plaintiff Roy E. Moon subsequently received payment of $192,399.92, and plaintiff William Sheehan received payment of $93,600.08.

Plaintiffs thereafter commenced this action, alleging breach of contract, fraudulent inducement, tortious interference with business relations, age discrimination and prima facie tort. After completion of discovery, the parties stipulated that plaintiffs’ claims of tortious interference with business relations and prima facie tort would be discontinued without prejudice. Defendants thereafter moved for summary judgment dismissing the remaining causes of action. Plaintiffs cross-moved to, among other things, amend their complaint by adding additional breach of contract and fraud allegations and for summary judgment on their breach of contract claims. Supreme Court denied plaintiffs’ cross motion in its entirety, granted defendants’ motion for summary judgment on plaintiffs’ age discrimination claim and denied the remainder of defendants’ motion. The parties cross-appeal.

Initially, we agree with defendants that Supreme Court properly denied plaintiffs’ motion to amend their complaint by adding additional claims of breach of contract and fraud. As we have previously explained, “ ‘leave to amend a complaint rests within the trial court’s discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit’ ” (Selective Ins. Co. v Northeast Fire Protection Sys., 300 AD2d 883, 883 [2002], quoting Berger v Water Commrs. of Town of Waterford, 296 AD2d 649, 649 [2002]; see CPLR 3025 [b]). In other words, while delay alone is not a sufficient ground to deny a motion to amend (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; New York State Health Facilities Assn. v Axelrod, 229 AD2d 864, 866 [1996]), “DJateness in making a motion to amend, coupled with [630]*630the absence of a satisfactory excuse for the delay and prejudice to the opposing party, justifies denial of such a motion” (Thibeault v Palma, 266 AD2d 616, 617 [1999]).

Here, although the original complaint and proposed amended complaint both contain breach of contract and fraud claims, the proposed amendment contains a number of previously unpleaded factual allegations and new theories. Indeed, the proposed amendment is a substantial expansion of the original complaint and essentially seeks to replead plaintiffs’ case. Our review of the record indicates that plaintiffs’ discovery requests, and the hearing on the matter — at the close of which Supreme Court denied many of plaintiffs’ requests as overly broad and immaterial — were not sufficient to alert defendants to the claims in the proposed amendment. Moreover, additional discovery and depositions would be required in order to enable defendants to respond to these new claims. Supreme Court properly concluded that permitting plaintiffs to amend their complaint following the filing of a note of issue and the completion of discovery would prejudice defendants. Further, we observe that plaintiffs’ explanations for the delay — that they changed counsel and that the litigation was stayed for several months due to a bankruptcy proceeding — are not satisfactory excuses. Accordingly, we find no abuse of discretion in the denial of the motion to amend insofar as plaintiffs sought to expand the factual and legal allegations asserted in the complaint (see id. at 617-618; Seaman v Berman, 239 AD2d 738, 739-740 [1997]; cf. Acker v Garson, 306 AD2d 609, 610, [2003]).

Turning to the parties’ summary judgment motions, we conclude that defendants are entitled to summary judgment dismissing plaintiffs’ remaining causes of action for breach of contract and fraudulent inducement. In their original complaint, plaintiffs asserted that defendants breached the parties’ contract by failing to hire plaintiffs and to use their best efforts to promote plaintiffs’ radio program. Indisputably, however, defendants did hire plaintiffs. Additionally, the contract does not contain a provision requiring defendants to use their best efforts to promote plaintiffs’ program and plaintiffs fail to allege that the contract is ambiguous with respect to any such obligation. Notably, the contract contained a clause providing that it superseded all prior agreements, whether written or oral, and requiring that the agreement could not be revised except in writing. Inasmuch as “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” [631]*631(Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]) and plaintiffs have failed to raise any triable issues of fact with regard to a breach of the employment agreement’s terms, defendants’ motion seeking dismissal of this cause of action should have been granted (see Convenient Med. Care v Medical Bus. Assoc., 291 AD2d 617, 618 [2002]).

Further, even if we could construe plaintiffs’ claim that defendants failed to hire them as setting forth a wrongful termination claim, as plaintiffs urge us to do, we would reach the same result. The agreement, by its terms, permitted defendants to terminate the contract at any time for “business reasons” including, but not limited to, “a determination by the Company that either one of Mason or Sheehan has ceased to perform the Services in a satisfactory manner.” While plaintiffs allege that defendants did not fire them for legitimate business reasons, defendants presented evidence that plaintiffs were terminated because their morning program failed to achieve expected ratings and caused defendants to lose money. We find plaintiffs’ evidence disputing that defendants had a legitimate business reason for terminating the contract — an unsubstantiated claim that defendants represented, prior to entering into the contract, that they would be satisfied if plaintiffs’ program achieved a 2.5 Arbitren rating, which the program achieved— insufficient to create a triable issue of fact regarding defendants’ motives for terminating the contract. Accordingly, we conclude that plaintiffs’ breach of contract claims must be dismissed.

With respect to plaintiffs’ cause of action for fraudulent inducement, plaintiffs alleged three oral misrepresentations on defendants’ part, all of which related to promises or expressions of future expectations.

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Bluebook (online)
307 A.D.2d 628, 763 N.Y.S.2d 157, 2003 N.Y. App. Div. LEXIS 8298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moon-v-clear-channel-communications-inc-nyappdiv-2003.