In Duff v. Royer Cooper Cohen Braunfeld LLC, No. 659884/2024, 2025 WL 1907934, 2025 N.Y. Slip Op. 32619(U) (N.Y. Sup Ct, New York County July 10, 2025), the court held that plaintiff did not have a viable breach of contract claim – in light of his “at will” employment status – his age discrimination claims survive dismissal.
As to plaintiff’s breach of contract claim, the court explained:
Plaintiff alleges on June 28, 2024, RCCB notified him that he would be terminated as of August 31, 2024. Plaintiff was told he was terminated due to low fee collections. But Plaintiff claims he was discriminated against based on age. He now sues for age discrimination in violation of the New York Human Rights Law and the New York City Human Rights Law, age discrimination in violation of 29 U.S.C. § 623, breach of contract, and an alleged violation of 61 Pa. Code § 113.7. Defendants move to dismiss Plaintiff’s cause of action alleging a violation of 29 U.S.C. § 623 and Plaintiff’s cause of action alleging breach of contract. Plaintiff opposes dismissal of his cause of action alleging breach of contract but does not oppose dismissal of his 29 U.S.C. § 623 claim, therefore the third cause of action alleging a violation of 29 U.S.C. § 623 is dismissed as abandoned.
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must accept the factual allegations as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept 2004]). However, conclusory allegations or claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358, 373 [2009]). A motion to dismiss for failure to state a claim will be granted if the factual allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). A motion to dismiss based on documentary evidence pursuant to CPLR § 3211(a)(1) is appropriately granted only when the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]). The documentary **3 evidence must be unambiguous, of undisputed authenticity, and its contents must be essentially undeniable (VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]).
The documentary evidence, namely the offer letter (NYSCEF Doc. 5), establishes that Plaintiff does not have a valid breach of contract claim. The offer letter expressly states Plaintiff’s position was “at will” and that after the first year of his employment, his compensation package would be revisited by the Executive Committee. Plaintiff was on notice of the Executive Committee’s right to revisit his compensation package, and because Plaintiff’s employment was at will, it could be terminated or modified at any time.
Therefore, he does not have a breach of contract claim based on the $250,000 annual compensation guaranteed for his first year of employment, as promised in the April 2018 offer letter (see, e.g. Cuervo v Opera Solutions LLC, 87 AD3d 426, 426-27 [1st Dept 2011]; Parker v Hill and Knowlton, Inc., 282 AD2d 397, 397 [1st Dept 2001]). Plaintiff was not guaranteed a $250,000 annual salary for his entire employment with Defendants – he was guaranteed that salary for a year, after which time his compensation package would be revisited by the Executive Committee. The Complaint does not allege that Plaintiff was unpaid for work done, but alleges he was not paid the same amount as his peers.
The court thus held that plaintiff did not have a viable breach of contract claim. However, it held that plaintiff’s age discrimination claims alleging violations of the New York State and City Human Rights Laws survive, and that to the extent Plaintiff alleges he was damaged by alleged age discrimination due to lower compensation, he is may still litigate that issue.