Opinion
October 21, 1993
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Plaintiff's cause of action, sounding in breach of contract, was properly dismissed since the documentary evidence demonstrates that the employment relationship involving security services at defendants-movants' hotel, was one "at will" and terminable by defendants at any time for any reason or no reason (Nagle v. Shearson Lehman Bros., 190 A.D.2d 568). The contract was terminated immediately by letter dated December 28, 1990 addressed to plaintiff's president, and no allegations were made in the pleading to suggest that plaintiff's services or employees continued to be provided thereafter at the site.
We refuse to consider plaintiff's contention, raised for the first time on appeal, that the defendants-movants participated in a "fraudulent scheme" to deprive it of its business profits so as to entitle it to leave to plead a cause of action sounding in fraud (Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 251, affd 64 N.Y.2d 670). Moreover, this claim is based upon material which is not in the record on appeal (Matter of Tyrone G. v. Fifi N., 189 A.D.2d 8, 15). Plaintiff's other contention, that it stated a valid cause of action for unjust enrichment, is belied by the lack of allegations in the record before us that plaintiff continued to provide services to defendants after the December 28, 1990 termination date (cf., Waldman v. Englishtown Sportswear, 92 A.D.2d 833, 836).
We have considered plaintiff's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Carro, Ellerin, Kassal and Rubin, JJ.