Ritter, J. (concurring in part and dissenting in part). I agree that the fifth cause of action, alleging a violation of New York’s Human Rights Law, and the sixth cause of action, alleging a violation of New York’s Civil Rights Law, were properly dismissed for the reasons stated in the majority’s opinion. However, I believe dismissal of the fourth cause of action was premature because the allegations of the complaint, coupled with the plaintiffs’ affidavit submitted in opposition to the defense motion, state a viable claim under the Federal Civil Rights Act of 1866 (42 USC § 1981). I reach this conclusion mindful of the procedural posture of the case, a motion for dismissal made pursuant to CPLR 3211 (a) (7), in which the allegations of the affidavits must be read together with the complaint and construed so as to give the plaintiffs the benefit of every possible favorable inference (see, Rovello v Orofino Realty Co., 40 NY2d 633, 634).
In my view, the leading case on the subject at bar, Patterson v McLean Credit Union (491 US 164) is being applied too restrictively by the majority in this case. In Patterson, the plaintiff had been employed as a teller at the defendant credit union from 1972 until she was discharged in July 1982. Soon thereafter, she commenced suit seeking damages under 42 USC § 1981 and title VII of the Civil Rights Act of 1964. Her main complaint was that she had been the victim of racial harassment by being passed over for promotion, not being trained for higher level jobs, denied wage increases, and finally discharged, all because of her race.
Writing for a majority of the Court, Justice Kennedy explained that section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts. He distinguished the refusal to enter into a contract with someone (or an offer to make a contract but only on discriminatory terms) from conduct engaged in by an employer after the contractual relationship has been established, referring specifically to a breach of the terms of the contract or the imposition of discriminatory working conditions: “Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more *47naturally governed by state contract law and Title VII” (Patterson v McLean Credit Union, supra, at 177).
Based on this analysis, the Court held that the conduct labeled by the plaintiff as racial harassment constituted post-formation conduct by her employer relating to the terms and conditions of continuing employment, and therefore, fell outside the scope of protection afforded by section 1981. Notably, however, the Court applied a different analysis to the claim that the plaintiff had been denied a promotion on the basis of race. The Court held that such a claim is actionable under section 1981, where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer (Patterson v McLean Credit Union, supra, at 185).
In the case at bar, the plaintiffs allege in their complaint that the defendant employed them beginning in July 1985 to act as his attorneys, and to represent him in all of his legal affairs, and as such, the plaintiffs rendered legal services at rates agreed upon from time to time. At paragraphs 31 and 32, the plaintiffs detail the different transactions in which they rendered legal services — negotiating record and management agreements, real estate matters, and copyright litigation —and in paragraph 33, they allege that they were hired "for their legal services at an hourly rate and/or as otherwise agreed to from time to time”. It is alleged that the plaintiffs’ firm was the exclusive provider of legal services in every aspect of the defendant’s personal and professional life between June 1985 and late 1988.
It is further alleged that beginning in the spring of 1989, the defendant’s father, who had taken control of the defendant’s business affairs, began a campaign to dismiss the defendant’s entire staff of " 'white’ employees”, and to hire only "black” advisers. According to the plaintiffs, this decision was made despite the fact that both the defendant and his father were completely satisfied with the services provided by the law firm. Indeed, the plaintiffs allege that the defendant’s father informed the plaintiff Joseph O. Giaimo at the time of the termination of their relationship: "Giaimo, you’re a great lawyer; one of the best I ever met, but we are going to make a change and you know that”.
The plaintiffs’ theory of recovery includes the claim that the "defendant refused to enter into a new periodic employment contract each time legal services were to be performed, solely *48because of race”. As in Patterson (supra), the plaintiffs here are alleging that the opportunity to enter into new and distinct contractual relations with the defendant was denied solely on the basis of race. The plaintiffs were not general or house counsel, and allege that they entered into separate, discrete agreements with the defendant each time a business transaction required legal services. Patterson holds that such a claim is actionable.
In the cases cited by the majority, the plaintiffs were not really claiming that they had been denied the opportunity to enter into new and different employment opportunities. Many of the cases involved at-will employees who alleged that their employment relationship consisted of a series of contracts renewed on a daily basis, rather than a single continuous relationship of indefinite duration. In order to circumvent the critical distinction between preformation and postformation conduct, those plaintiffs simply recast what were clearly claims of improper terminations of employment into claims of failures to renew at-will contract claims. Such efforts were properly rejected by the Federal courts as disingenuous and legally unsound (see, Brereton v Communications Satellite Corp., 735 F Supp 1085; Smith v Continental Ins. Corp., 747 F Supp 275, affd 941d 1203; Carter v O’Hare Hotel Investors, 736 F Supp 158; Coleman v Domino’s Pizza, 728 F Supp 1528). In several other cases, the plaintiffs, before commencing suit, attempted to have the identical employment relationship reinstated with the exact same rights, duties, and obligations as existed under the previous agreement that was terminated (see, Nolan’s Auto Body Shop v Allstate Ins. Co., 718 F Supp 721; Smith v Continental Ins. Corp., supra).
That the plaintiffs here are alleging an ongoing relationship and that they were continually available to the defendant does not preclude them from asserting that new employment opportunities would arise from time to time. The claims in this case are akin to the opportunity for promotion claims recognized by the Patterson Court as actionable under section 1981, even in the context of an ongoing employment relationship (see also, Brereton v Communications Satellite Corp., supra, at 1088-1091). The plaintiffs’ theory of liability is not premised on the defendant’s purported refusal to maintain or reinstate the same employment relationship as existed prior to discharge. Each business transaction in which legal services were provided required a new agreement with distinct rights, duties, and obligations.
*49Under the circumstances here, dismissal is not an appropriate disposition (see, Rovello v Orofino Realty Co., 40 NY2d 633, 634, supra). The sharply contested factual issue raised by the affidavits submitted in opposition to the motion should be resolved by reinstating the fourth cause of action.
Accordingly, I vote to modify the order appealed from, on the law, by deleting the provision thereof which granted that branch of the motion which was to dismiss the fourth cause of action, and by substituting therefor a provision denying that branch of the motion, and as so modified, to affirm the order, without costs or disbursements.
Bracken and Eiber, JJ., concur with Thompson, J. P.; Ritter and Miller, JJ., concur in part and dissent in part in a separate opinion by Ritter, J.
Ordered that the order is affirmed, with costs.