Kyle Connaughton, Appellant,v.Chipotle Mexican Grill, Inc., et al., Respondents.BriefN.Y.March 21, 2017APL-2016-00036 New York County Clerk’s Index No. 115106/13 Court of Appeals STATE OF NEW YORK KYLE CONNAUGHTON, Plaintiff-Appellant, against CHIPOTLE MEXICAN GRILL, INC. and STEVEN ELLS, Defendants-Respondents. >> >> BRIEF FOR DEFENDANTS-RESPONDENTS MESSNER REEVES LLP Attorneys for Defendants-Respondents 805 Third Avenue, 18th Floor New York, New York 10022 646-663-1860 Of Counsel: Jean-Claude Mazzola Ruofei Xiang Date Completed: May 11, 2016 To Be Argued By: Jean-Claude Mazzola Time Requested: 30 Minutes i DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f) Defendant-Respondent Chipotle Mexican Grill, Inc. is a publicly traded corporation with no parent entity. ii TABLE OF CONTENTS Page DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f) ............................. i TABLE OF AUTHORITIES ................................................................................... iii COUNTERSTATEMENT OF ISSUES RAISED ON APPEAL .............................. 1 PRELIMINARY STATEMENT ............................................................................... 2 COUNTERSTATEMENT OF FACTS OF THE CASE AND PROCEDURAL HISTORY ....................................................................................... 2 ARGUMENT ............................................................................................................. 7 I. Appellant Failed to Sufficiently Plead Damages ......................................... 7 A. Appellant Suffered No Pecuniary Loss ................................................. 7 B. Any Damage Claimed by Appellant are Speculative and Undeterminable .............................................................................. 9 C. Nominal damages are not allowed ...................................................... 12 II. Appellant Was an At-Will Employee and Cannot Establish Reasonable Reliance .................................................................................. 14 CONCLUSION ........................................................................................................ 17 iii TABLE OF AUTHORITIES Page(s) Cases Arias v. Women in Need, Inc., 274 A.D.2d 353 (1st Dept. 2000) ....................................................................... 14 Bernstein v. Kelso & Co., Inc., 231 A.D.2d 314 (1st Dept. 1997) ......................................................................... 8 Caruso, Caruso & Branda, P.C. v. Hirsch, 41 A.D.3d 407 (2d Dept. 2007) .......................................................................... 12 Cron v. Hargro Fabrics, 91 N.Y.2d 362 (1998) ........................................................................................... 3 Dress Shirt Sales, Inc. v. Hotel Martinique Associates, 12 N.Y.2d 836 (1963) ......................................................................................... 10 Geary v. Hunton & Williams, 257 A.D.2d 482 (1st Dept. 1999) ....................................................................... 10 Hanlon v. Macfadden Publ’n, 302 N.Y. 502 (1951) ............................................................................................. 8 Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 878 N.Y.S.2d 717 (1st Dept. 2009) .............................................................. 10, 15 Kronos, Inc. v. AVX Corp, 81 N.Y.2d 90 (1993) ........................................................................................... 12 Kulas v. Adachi, 1997 WL 256957, No. 96 Civ 6674 (MBM) (S.D.N.Y May 16, 1997)..................................................................................... 10 Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413 (1996) ........................................................................................... 7 Leder v. Spiegel, 31 A.D.3d 266 (1st Dept. 2006) ........................................................................... 3 iv Meyercord v. Curry, 38 A.D.3d 315 (1st Dept. 2007) ......................................................................... 14 Mihalakis v. Cabrini Medical Center (cmc), 151 A.D.2d 345 (1st Dept. 1989) ....................................................................... 10 Nager Elec. Co., Inc. v. E. J. Elec. Installation Co., Inc., 128 A.D.2d 846 (2d Dept. 1987) .......................................................................... 8 Navaretta v. Group Health, Inc., 191 A.D.2d 953 (2d Dept. 1993) ........................................................................ 16 Oxbow Calcining USA Inc. v. American Indus. Partners, 96 A.D.3d 646 (1st Dept. 2012) ........................................................................... 7 Pope v. Saget, 29 A.D.3d 437 (1st Dept. 2006) ........................................................................... 8 Rather v. CBS Corp, 68 A.D.3d 49 (1st Dept. 2009) ........................................................................... 11 Shiffman v. Empire Blue Cross, 256 A.D.2d 131 (1st Dept. 1998) ....................................................................... 12 Small v. Lorillard Tobacco Co., Inc. 252 A.D.2d 1 (1st Dept. 1998) ............................................................................. 7 Smalley v. Dreyfus Corp., 10 N.Y.3d 55 (2008) ........................................................................................... 16 Stewart v. Jackson & Nash, 976 F.2d 86 (2d Cir. 1992) ................................................................................. 16 Stuart Silver Associates Inc. v. Baco Development Corp., 245 A.D.2d 96 (1st Dept. 1997) ........................................................................... 7 Swersky v. Dreyer & Traub, 219 A.D.2d 321 (1st Dept. 1996) ....................................................................... 15 Tannehill v. Paul Stuart, Inc., 226 A.D.2d 117 (1st Dept. 1996) ....................................................................... 14 v Weintraub v. Phillips, Nizer, Benjamin, Krim & Ballon et al., 172 A.D.2d 254 (1st Dept. 1991) ....................................................................... 15 WIT Holding Corp. v. Klein, 282 A.D.2d 527 ................................................................................................... 15 Statutes CPLR § 2016(b) ......................................................................................................... 7 CPLR § 3016(b) ......................................................................................................... 3 CPLR § 3211(a) ....................................................................................................... 10 CPLR § 3211(a)(1) ..................................................................................................... 3 CPLR § 3211(a)(7) ..................................................................................................... 3 1 {01901356 / 4} COUNTERSTATEMENT OF ISSUES RAISED ON APPEAL 1. Did the Supreme Court and Appellate Division correctly determine that Plaintiff-Appellant’s did not and cannot sufficiently plead damages to state a cause of action for fraudulent inducement? ANSWER: The lower courts correctly determined that Plaintiff-Appellant’s fraud-related damages could not sustain a claim for fraudulent inducement because (1) Plaintiff-Appellant suffered no pecuniary loss as required by New York’s out- of-pocket rule for fraud-related claims, and (2) Plaintiff-Appellant’s allegations of damages were completely speculative in nature and cannot be inferred or developed through discovery even with liberal construction of the Complaint. As such, Plaintiff-Appellant’s Complaint is properly dismissed and should be affirmed by this Court. 2. Did the Supreme Court and Appellate Division correctly determine that the at-will nature of Plaintiff-Appellant’s employment bars him from establishing reasonable reliance damages? ANSWER: The lower courts correctly determined that Plaintiff-Appellant was an at-will employee and that he could not justifiably rely on the employer’s representations of continued employment. 2 {01901356 / 4} PRELIMINARY STATEMENT The Supreme Court and the First Department Appellate Division properly dismissed Plaintiff-Appellant’s complaint sounding in fraudulent inducement and unjust enrichment. Plaintiff-Appellant is appealing only the ruling dismissing his fraudulent inducement cause of action. The lower courts’ decisions followed clear and controlling authority in New York that in order to state a legally cognizable claim of fraudulent inducement, the complaint must allege actual, calculable pecuniary damages. Pursuant to the long-standing “out-of-pocket” rule in New York, the true measure of damage in a fraudulent inducement action is indemnity for the actual pecuniary loss sustained as the direct result of the wrong. Here, Plaintiff-Appellant only alleges injuries that may be suffered in the future, all of which are undeterminable and speculative. The majority correctly determined that there are no facts alleged from which any properly recoverable damages may be inferred. There are simply no grounds to appeal this matter. This Court should deny Plaintiff-Appellant’s appeal in its entirety. COUNTERSTATEMENT OF FACTS OF THE CASE AND PROCEDURAL HISTORY Plaintiff-Appellant Kyle Connaughton (hereinafter “Appellant”) commenced an action in the New York County Supreme Court on or about August 3, 2013 alleging fraudulent inducement and unjust enrichment (the “Complaint”) against Defendants-Respondents Chipotle Mexican Grill, Inc. (“Chipotle”) and Steven Ells 3 {01901356 / 4} (“Ells”) (collectively “Respondents”). (R13-31). In lieu of serving and filing an answer, Respondents filed a pre-answer motion to dismiss the Complaint in its entirety pursuant to CPLR §3211(a)(1), (7) and CPLR §3016(b) on or about August 7, 2013. (R1-49). Appellant’s claims in this action are wholly premised on Appellant’s acceptance of an at-will employment position with Chipotle to develop a “ramen concept”. For purposes of Respondents’ motion to dismiss, Appellant’s allegations in the Complaint are deemed true, except those that consist of bare legal conclusions, are inherently incredible, or unequivocally contradicted by documentary evidence. See Leder v. Spiegel, 31 A.D.3d 266, 267 (1st Dept. 2006) (citing Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 (1998)). However, even construing the Complaint as liberally as possible, Appellant does not set forth viable claims sounding in fraudulent inducement and unjust enrichment. Appellant alleges that he was hired as Chipotle’s Culinary Director in early 2011, following a period of arms-length negotiations and discussions with Chipotle, with the assistance of Appellant’s own legal and personal counsel, between November 2010 and January 2011. (R17). Appellant was then hired as an at-will employee of Chipotle, which was confirmed by a letter dated January 24, 2011 from Chipotle to Appellant explicitly indicating the following: 4 {01901356 / 4} We recognize that you retain the option, as does Chipotle, of ending your employment at any time, with or without notice or cause. In other words, your employment with Chipotle is at will, and neither this letter nor any oral or written representations may be considered a contract for any specific period of time. (emphasis added). (R26). Similarly, Paragraph 7 of Chipotle’s Restricted Stock Units Agreement dated February 11, 2011 again specifically confirmed the at-will nature of Appellant’s employment with Chipotle, providing the following: 7. Employment Not Affected. The granting of the Award shall not be construed as granting to the Participant any right with respect to continuance of employment with the Company. Except as may otherwise be limited by a written agreement between the Company and the Participant, the right of the Company to terminate at will the Participant’s employment with it at any time (whether by dismissal, discharge, retirement or otherwise) is specifically reserved by the Company and acknowledged by the Participant. (emphasis added). (R28-31). The express disclaimers clearly specified that Appellant’s employment with Chipotle was at-will. Appellant is cognizant of the at-will terms of his employment (R17) and there are no allegations in the Complaint indicating otherwise. Appellant engaged in extensive development work between 2011 and 2012 to further advance the “ramen concept” he had conceived in 2010. (R18). He then found out that David Chang, the owner of the restaurant Momofuku, and 5 {01901356 / 4} Respondent Steven Ells entered into a “confidential business dealing whereby Mr. Chang agreed to develop a ramen concept.” (R20). The Complaint further alleges that “Mr. Ells signed a non-disclosure agreement which required him to maintain as confidential the details of Mr. Chang’s ramen concept, including menus and other business development ideas.” (R20). Appellant alleges that Chipotle’s failure to disclose this confidential business dealing with Mr. Chang “substantially impacted Mr. Connaughton’s ability to implement his own ramen concept …” (R21). According to the Complaint, Chipotle terminated Appellant’s employment on or about November 17, 2012 after Respondent Steven Ells advised Appellant that he no longer had confidence in the ramen concept. (R22-23). Prior to termination, Appellant received his “full bonus” and there are no allegations that Chipotle owed any employment-related compensation to Appellant. (R18). The Complaint does not allege any affirmative misrepresentations by Chipotle concerning the nature of Appellant’s at-will employment or Chipotle’s prior alleged relationship with Mr. Chang and Momofuku. The Complaint also does not assert facts suggesting Chipotle had any fiduciary or other preexisting duty to Appellant that required Chipotle to affirmatively disclose its prior business relationships. Furthermore, the Complaint does not identify any facts establishing that any purportedly confidential information was ever actually supplied to him, 6 {01901356 / 4} despite Appellant’s “information and belief” allegation that implementation of his ramen concept would “inevitably” violate confidentiality restrictions. (R21). The Honorable Shirley W. Kornreich granted Respondents’ motion to dismiss the Complaint in its entirety, ruling that there are no viable claims for fraudulent inducement and unjust enrichment. The First Department Appellate Division affirmed the Supreme Court’s decision on January 19, 2016. (CA-113- 137). 7 {01901356 / 4} ARGUMENT I. Appellant Failed to Sufficiently Plead Damages A. Appellant Suffered No Pecuniary Loss. Even construing the complaint as liberally possible, all the elements of a claim must be present in order to survive a motion to dismiss. The elements of a cause of action for fraud are a representation concerning a material fact, falsity of that representation, scienter, reliance and damages. Stuart Silver Associates Inc. v. Baco Development Corp., 245 A.D.2d 96, 98 (1st Dept. 1997); Oxbow Calcining USA Inc. v. American Indus. Partners, 96 A.D.3d 646, 650 (1st Dept. 2012). “To make out a prima facie case of fraud, the pleadings must contain detailed allegations in support of every element.” Small v. Lorillard Tobacco Co., Inc. 252 A.D.2d 1, 15 (1st Dept. 1998). Courts are to liberally construe and accept all alleged facts in the complaint as true. Liberal construal of a complaint does not eliminate or lower the heightened pleading standards imposed by CPLR §2016(b), which require the Appellant to offer specific factual support his claim. It also does not abrogate the requirement that each element of a fraud claim must be sufficiently alleged. It is well established in New York that in a case for fraud, the “[t]he true measure of damages … is indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the out-of-pocket rule.” Lama 8 {01901356 / 4} Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421 (1996). “Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained.” Id. at 421. Under this rule, the loss is computed by ascertaining the difference between the value of the bargain which a plaintiff was induced by fraud to make and the amount or value of the consideration exacted as the price of the bargain. Id. See also, Pope v. Saget, 29 A.D.3d 437, 441 (1st Dept. 2006) (fraud claim dismissed because plaintiff failed to plead pecuniary loss attributable to defendants); Nager Elec. Co., Inc. v. E. J. Elec. Installation Co., Inc., 128 A.D.2d 846, 846 (2d Dept. 1987) (“[v]ictims of fraud may only recover their actual pecuniary loss”); compare with, Bernstein v. Kelso & Co., Inc., 231 A.D.2d 314, 315 (1st Dept. 1997) (pecuniary loss was suffered when plaintiff was defrauded into selling stocks that had an ascertainable value for less than that value); Hanlon v. Macfadden Publ’n, 302 N.Y. 502, 510 (1951) (out-of- pocket requirement was met when plaintiff was defrauded into giving up some of his current compensation). Appellant claims in his Complaint that he has been “damaged in an amount to be determined at trial, including, but not limited to, the value of his Chipotle equity and lost business opportunities” under his fraudulent inducement claim. (R- 24). Such damages are not “out-of-pocket” losses. Appellant fails to allege any specific pecuniary loss or actual harm. Appellant was fully compensated for all 9 {01901356 / 4} services performed in accordance with the terms of his at-will employment arrangement, and he admitted that he even received a full bonus for all work performed for Chipotle. Any equity in the form of Restricted Stock Units that Appellant would be entitled to only vests after three years of uninterrupted service, and thus Appellant was not due any Restricted Stock Unitequity as he was lawfully terminated after less than two years of service. Lost business opportunities are inherently speculative, as discussed below, and is insufficient for a proper allegation of actual pecuniary loss. As a result, the Complaint does not state a cause of action for fraud and was thus correctly dismissed by the Supreme Court and properly affirmed by the Appellate Division. Just based on this alone, the Supreme Court and Appellate Division’s ruling should be upheld. B. Any Damage Claimed by Appellant are Speculative and Undeterminable. Appellant does not plead any pecuniary loss. Rather, Appellant argues that he suffered the value of lost business opportunities. He also very vaguely asserts that had he gone forward with the ramen concept, he may suffer harm to his professional reputation if he were ever accused by Momofuku of violating the non- disclosure agreement. (R-21 – R-22). These measures of damages are not recoverable in fraud and cannot be developed through discovery. Simply said, damages in a fraud claim are not recoverable if they are speculative. It is squarely within the purview of the lower courts to determine the sufficiency of damage 10 {01901356 / 4} pleadings and to dismiss claims that do not and cannot satisfy the most basic pleading requirements. CPLR §3211(a). The lower courts correctly determined that Appellant’s allegations of potential future injury are not compensable and properly dismissed Appellant’s fraud claims. New York courts bar recovery for the loss of an alternative bargain as inherently speculative and undeterminable. See Dress Shirt Sales, Inc. v. Hotel Martinique Associates, 12 N.Y.2d 836 (1963); Geary v. Hunton & Williams, 257 A.D.2d 482, 482 (1st Dept. 1999); Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 878 N.Y.S.2d 717, 718-719 (1st Dept. 2009) (noting that the duration and success of plaintiff’s career are speculative); Mihalakis v. Cabrini Medical Center (cmc), 151 A.D.2d 345, 346 (1st Dept. 1989) (dismissing fraudulent misrepresentation claim by finding that it would be impermissible speculation to assume that plaintiff would have fared better in alternative internship program had she not entered defendant’s internship program). That Appellant may have suffered lost business opportunities and profits that would have been realized is not a claim that is actionable as a matter of law. A lost bargain more “speculative and undeterminable” than this is difficult to imagine. Plaintiff’s vague assertion of possible future reputation harm is also no substitute for actual injury. See Kulas v. Adachi, 1997 WL 256957, No. 96 Civ 6674 (MBM) (S.D.N.Y May 16, 1997) (damages for injury to business reputation 11 {01901356 / 4} and loss of business and potential customers are not out-of-pocket losses sufficient for a properly pleaded fraud action); Rather v. CBS Corp, 68 A.D.3d 49, 57-58 (1st Dept. 2009) (news anchor’s allegations of reputation damage cannot support fraud claim, and allegations of lost opportunities and future earnings were too speculative because there was no basis to conclude that his employment status would not have changed especially when he “never identified a single opportunity with specified terms that was actually available to him.”). There cannot be any reasonable inference of damages. Plaintiff does not and cannot allege that he was the subject of a claim by any party related to the nondisclosure agreement, because no such claim exists. It cannot be inferred that Momofuku, David Chang, or any third party will definitely sue Appellant in his individual capacity for a concept that he claims he conceived and developed independently or that he will incur necessary future legal fees. It likewise cannot be inferred that his reputation will certainly be damaged at some unspecified time in the future. These damages cannot be developed through discovery. Besides, Appellant fails to allege that he has suffered any current reputational harm or that he incurred any defense-related legal fees. He simply fails to allege that he endured any type of compensable injury. The dissent underscores the principle that damages need not be proven at the pleadings stage, but does not point to any authority in New York that would suggest that an inference of general damages can 12 {01901356 / 4} substitute the long-standing out-of-pocket rule for fraud claims. Caruso, Caruso & Branda, P.C. v. Hirsch involves a legal malpractice claim for an underlying divorce action. 41 A.D.3d 407 (2d Dept. 2007). Shiffman v. Empire Blue Cross, which Appellant cites to in his brief, involves a civil trespass claim. 256 A.D.2d 131, 131 (1st Dept. 1998). There is no controlling authority that relieves the obligation of a plaintiff to plead pecuniary damages in a fraud claim in New York. This case falls within the Court of Appeals’ policy of the consistent refusal to allow fraud damages based on too speculative a recovery. Even taking all of Appellant’s factual allegations as true, Appellant cannot sustain a cause of action for fraud. C. Nominal damages are not allowed. Appellant’s claim for fraudulent inducement sounds in tort. Without an injury, a tort cause of action cannot accrue. It is not enough if all the elements of the tort cannot be truthfully alleged in a complaint. See Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94-96 (1993) (“[i]n tort…there is no enforceable right until there is a loss”). Here, the lower courts correctly held that Appellant failed to sufficiently plead that he sustained any non-speculative calculable damages as a direct result of the alleged wrongdoing of the Respondents. Simply put, Plaintiff-Appellant has no legal right to relief as he cannot plead all the essential elements of a tort claim. 13 {01901356 / 4} The dissent does not refute the majority opinion’s finding that Appellant did not establish actual pecuniary injury for a fraud claim, but merely suggests that Appellant may be entitled to nominal damages. The idea of nominal damages is a legal fiction, and the allowance of nominal damages in tort actions is not supported by legal authority in New York courts. In Kronos, which is the leading authority on this issue, the Court of Appeals strictly declined to import the legal fiction of nominal damages from contract law into a tort action and held that by doing so is to “ignore the fundamental differences between tort and contract principles.” Id. at 95. The Court of Appeals further explained why nominal damages are not appropriate in tort by emphasizing that there is no enforceable right in tort until there is a loss. “It is the incurring of damage that engenders a legally cognizable right. To recognize the nominal damages element of tort claims would be to wrest the cause of action from its traditional purposes – the compensation of losses – and to use it to vindicate nonexistent or amorphous inchoate rights when…there is no compelling reason to do so.” Id. at 96. The only exception for allowing nominal damages in tort is for protecting an “important technical right.” Id. at 95. The Court of Appeals defined this right to include a landowner’s right to be free of trespass because that right may ripen into a prescriptive right and deprive a property owner of title to his or her land. Id. However, this right does not apply for torts such as trespass to chattel, inducement 14 {01901356 / 4} of breach of contract, or claims involving other intangible property rights. Id. Here, in this case, any right that Appellant possibly has is not a technical right. Furthermore, Appellant never pursued a claim for nominal damages in the Complaint. II. Appellant Was an At-Will Employee and Cannot Establish Reasonable Reliance. In New York, an at-will employee is precluded from recovering damages for fraudulent inducement as a matter of law because the employee will be unable establish reliance on a prospective employer’s representations. Meyercord v. Curry, 38 A.D.3d 315, 316 (1st Dept. 2007) (holding that even if detrimental reliance had been pleaded, it could not form the basis for a viable claim of fraudulent inducement for an at-will employee and that an at-will employee’s reliance on an employer’s representations are “unreasonable as a matter of law”); Arias v. Women in Need, Inc., 274 A.D.2d 353, 353 (1st Dept. 2000); Tannehill v. Paul Stuart, Inc., 226 A.D.2d 117, 118 (1st Dept. 1996). The First Department correctly analyzed that Appellant was an at-will employee based upon clear documentary evidence, including the January 24, 2011 letter and the Restricted Stock United Agreement, and thus has no claim of reasonable reliance on Respondents’ representations or omissions. 15 {01901356 / 4} Appellant argues that Respondents’ fraudulent omission regarding the existence of a prior confidential business relationship with a third-party caused him to suffer reliance damages separate and apart from his termination. This argument has no merit and is not supported by Appellant’s allegations. An employer owes no fiduciary duty to an at-will employee. See Heoffner v. Orrick, Herrington & Sutcliffe LLP, 878 N.Y.S.2d 717, 719 (1st Dept. 2009); Weintraub v. Phillips, Nizer, Benjamin, Krim & Ballon et al., 172 A.D.2d 254, 254 (1st Dept. 1991). There is no fiduciary relationship between Respondent and Appellant due to the at- will nature of Appellant’s employment. See also WIT Holding Corp. v. Klein, 282 A.D.2d 527, 529 (arms-length business relationship does not give rise to fiduciary obligation). As such, there is simply no affirmative duty on Respondents’ part to disclose material information. Swersky v. Dreyer & Traub, 219 A.D.2d 321, 326 (1st Dept. 1996). Accordingly, Chipotle had no affirmative obligation to disclose its prior business dealings with third parties – let alone purportedly “confidential” ones – to Appellant or to anyone else, regardless if Chipotle was a party with superior knowledge. Appellant’s reliance damages are not separate and apart from any injury flowing from the actual termination. First, Appellant was able to fully develop his ramen concept throughout the course of Appellant’s employment with Chipotle. He worked with a development team, toured Japan visiting ramen restaurants, and 16 {01901356 / 4} attended ramen tastings and private courses, for which he was fully compensated. (R18-19). Further, Respondents made no present misstatement of fact in this case. See Stewart v. Jackson & Nash, 976 F.2d 86 (2d Cir. 1992) (damage to environmental lawyer’s career was independent of later termination because employer’s misrepresentations of present facts thwarted her career objective during her employment); Navaretta v. Group Health, Inc., 191 A.D.2d 953, 954 (2d Dept. 1993) (reliance injuries allowed only when employer made “misstatements of existing fact” regarding job requirements); Smalley v. Dreyfus Corp., 10 N.Y.3d 55, 58 (2008) (plaintiffs’ claim that they eschewed other job opportunities by relying on employer’s statements is not injury independent of termination). Moreover, the Appellate Division is correct in refusing to consider this issue because even assuming arguendo that there was any merit in Appellant’s detrimental reliance allegations for fraudulent omission, Appellant still failed to sufficiently plead damages. 17 {01901356 / 4} CONCLUSION Based on the foregoing reasons, Respondents respectfully request that this Court deny Appellant’s appeal and affirm the lower courts’ decisions dismissing Appellant’s Complaint in its entirety. Dated: New York, New York May 11, 2016 Respectfully submitted, MESSNER REEVES LLP By: /s/ Jean-Claude Mazzola Jean-Claude Mazzola 805 Third Avenue 18 th Fl. New York, New York 10022 (646) 663-1860 (telephone) (646) 663-1895 (facsimile) jcmazzola@messner.com