LUI v. CHINESE-AMERICAN PLANNING COUNCIL, INC.

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.