State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 523282 

________________________________

MARK L. REYNOLDS,

Appellant,

v

MEMORANDUM AND ORDER

TOWN OF GREENVILLE,

Respondent.

________________________________

Calendar Date: November 22, 2016

Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

__________

Biscone Law Firm, Ravena (Carmen M. Warner of counsel), for

appellant.

Tal B. Rappleyea, Valatie, for respondent.

__________

Clark, J.

Appeal from an order and judgment of the Supreme Court

(Fisher, J.), entered September 11, 2015 in Greene County, which

granted defendant's motion for summary judgment dismissing the

complaint.

Pursuant to a contract dated December 23, 2011, defendant

hired plaintiff as an independent contractor to operate its

wastewater treatment facility. In March 2013, defendant

terminated its contract with plaintiff "for cause" on the basis

that plaintiff or his employee allegedly "failed to properly

complete and[/]or file the reports, inspections, testing and

calibration of test equipment," as required by the contract. 

Plaintiff then commenced this action alleging that defendant had

improperly discharged him from his duties under the contract. 

Following joinder of issue and disclosure, defendant moved for
-2- 523282 

summary judgment dismissing the complaint, asserting that there

were no triable issues of fact as to the reasons for the

termination and, therefore, dismissal of plaintiff's breach of

contract claim was warranted. Plaintiff opposed the motion, and

his counsel stated, in his affirmation, that defendant had

"addresse[d] the completely wrong cause of action" of breach of

contract and that "the cause of action plead[ed] by . . .

[p]laintiff [was] one for wrongful termination." Supreme Court

granted defendant's motion and dismissed the complaint, stating

that defendant had "suceed[ed] both procedurally as [p]laintiff

ha[d] failed to state a cause of action and as a matter of law on

the merits."

We affirm. The contract between the parties expressly

stated that plaintiff was an independent contractor. Although

the complaint was ambiguous on its face as to the specific cause

of action pleaded, plaintiff's counsel asserted – in response to

defendant's argument on its motion for summary judgment that

plaintiff's breach of contract claim lacked merit – that the

cause of action pleaded in the complaint was one for wrongful

termination, rather than breach of contract. Accordingly, as

there is no claim for wrongful termination of an independent

contractor, Supreme Court properly dismissed the complaint for

failure to state a cause of action (see DeCapua v Dine-A-Mate,

Inc., 292 AD2d 489, 492-493 [2002]).1

Garry, J.P., Egan Jr., Rose and Mulvey, JJ., concur.

1 In light of this conclusion, we need not address Supreme

Court's further finding that, had a cause of action for breach of

contract actually been stated, defendant would have been entitled

to dismissal of that claim on the merits. Were we to do so, we

would deny defendant's motion for summary judgment dismissing the

complaint, as our review of the record reveals that plaintiff

raised questions of fact in opposition to the motion.
-3- 523282 

ORDERED that the order and judgment is affirmed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court