300 A.D.2d 80 (2002)

750 N.Y.S.2d 750

ALFRED LUI, Appellant, v. CHINESE-AMERICAN PLANNING COUNCIL, INC., Respondent, et al., Defendant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided December 10, 2002.

The motion court properly denied plaintiff's request to discontinue this action against defendant-respondent since plaintiff failed to prove compliance with the requirements for voluntary discontinuance set forth in CPLR 3217 (a), and, moreover, the evident motive for his request, made while defendant-respondent's motion to dismiss was pending, was simply to avoid an adverse decision on the merits (see Matter of Baltia Air Lines v CIBC Oppenheimer Corp., 273 A.D.2d 55, 57, lv denied 95 N.Y.2d 767).

The amended complaint was properly dismissed as against defendant-respondent for failure to state a cause of action because plaintiff, an at-will employee, had no claim for breach of contract by reason of defendant-respondent's termination of his employment (see O'Connor v Eastman Kodak Co., 65 N.Y.2d 724, 725). Plaintiff never alleged that defendant-respondent made him aware of any express written policy limiting its right of discharge, or that he had relied, to his detriment, on such a policy in accepting employment with defendant-respondent (see Matter of De Petris v Union Settlement Assn., 86 N.Y.2d 406, 410).

We exercise our discretion to vacate the imposition of sanctions and/or costs pursuant to 22 NYCRR 130-1.1, and modify accordingly.


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