Rodgers v. Lenox Hill Hospital

239 A.D.2d 140, 657 N.Y.S.2d 616, 1997 N.Y. App. Div. LEXIS 4643

Opinions

—Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about July 11, 1996, which, in an action for wrongful termination under Labor Law § 740, inter alia, denied defendant’s motion to add counterclaims for breach of fiduciary duty and fraud except those based on plaintiff’s alleged falsifications of his time records, modified, on the law, to permit the allegations of false time records to proceed under the counterclaim for fraud only, and otherwise affirmed, without costs.

The proposed counterclaims that are the subject of the appeal should be rejected as patently without merit. Although defendant seeks no appellate relief concerning the treatment of its allegations relating to false time records, and plaintiff did not file a cross appeal, we nevertheless modify to make clear that such allegations state a course of action only for fraud, and not for breach of fiduciary duty, such modification being necessary to just and complete relief (see, Bukhatir Mackinnon v Sarfraz, 130 AD2d 358).

We have considered defendant’s other contentions and find them to.be without merit. Concur—Murphy, P. J., Rosenberger and Mazzarelli, JJ.