                           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
