Muhitch v. St. Gregory the Great Roman Catholic Church & School

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted that part of defendant’s motion pursuant to CPLR 3211 (a) (7) seeking dismissal of the first cause of action, which alleged breach of an employment contract. The contract, dated June 16, 1994, provided that defendant would employ plaintiff as an elementary school teacher until the last day of school in June 1995. Plaintiff completed that school year but was not offered a contract for the following year. Because the contract did not provide for renewal of plaintiff’s employment, the complaint fails to state a cause of action for breach of contract (see generally, Fritzsch v County of Chenango, 198 AD2d 650). The "good cause” provision of the contract referred to by plaintiff would apply only if she had been terminated during the 1994-1995 school year.

The court did not abuse its discretion in denying plaintiff’s request to amend the complaint to allege breach of implied contract. Where, as here, "an express contract exists between the parties concerning the same subject matter, there may be no recovery upon a theory of implied contract” (Nixon Gear & Mach, v Nixon Gear, 86 AD2d 746).

We reject the contention of defendant on its cross appeal that the court should also have dismissed the second cause of action, alleging a violation of Labor Law § 201-d (2). That subdivision prohibits discrimination by "any employer” on any of several grounds. Paragraph (d) covers "an individual’s membership in a union or any exercise of rights granted under Title 29, USCA, Chapter 7 [National Labor Relations Act] or under article fourteen of the civil service law [Taylor Law].” (Emphasis added.) Contrary to defendant’s contention, the use of the conjunction "or” in Labor Law § 201-d (2) (d) indicates that the protection of the statute extends to members of any union and is not limited to members of unions subject to the National Labor Relations Act or the Taylor Law. (Appeals from Order of Supreme Court, Erie County, Glownia, J.— Dismiss Cause of Action.) Present—Green, J. P., Pine, Lawton, Doerr and Fallon, JJ.