Brooks v. Key Pharmaceuticals, Inc.

• Decision Date: 14 May 1992
• Citation: 583 N.Y.S.2d 673,183 A.D.2d 1011
• Court: New York Supreme Court — Appellate Division
• Parties: Deborah A. BROOKS, Appellant, v. KEY PHARMACEUTICALS INC. et al., Respondents.

Page 673

583 N.Y.S.2d 673

183 A.D.2d 1011

Deborah A. BROOKS, Appellant, v. KEY PHARMACEUTICALS INC. et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 14, 1992.

De Graff, Foy, Holt-Harris & Mealey (Carroll J. Mealey, of counsel), Albany, for appellant.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski (Sharon P. Margello of Apruzzese, McDermott, Mastro & Murphy, Liberty Corner, N.J., of counsel), Albany, for respondents.

Before WEISS, P.J., and MIKOLL, MERCURE and CREW, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court (Brown, J.), entered December 3, 1990 in Saratoga County, which granted defendants' motion for summary judgment dismissing the complaint.

The primary question presented on this appeal is whether plaintiff presented sufficient evidence to rebut the presumption that her employment as a sales representative for defendant Key Pharmaceuticals Inc. (hereinafter defendant) was at will.

Defendant, a manufacturer and supplier of pharmaceutical products, terminated plaintiff's employment as one of its sales representatives on November 6, 1984 after she was absent from work for a total of 21 1/2 days over a 10-month period without notifying her district sales manager, defendant Stuart Feldman, on each day of her absence as directed by the employee handbook. Subsequently, plaintiff brought this action to recover damages for breach of contract alleging, inter alia, that defendant terminated her employment contrary to the procedures set forth in its employee handbook. Defendants answered and then moved for summary judgment. Supreme Court granted defendants' motion and this appeal ensued.

It is "settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" (Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919; see, Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416). This presumption may be rebutted, however, by establishing "that the plaintiff was made aware of a written policy of limitation on the employer's right to discharge at the time the employment commenced and, in accepting the employment, the plaintiff relied on the termination only for cause limitation" (Novinger v. Eden Park Health Servs., 167 A.D.2d 590, 591, 563 N.Y.S.2d 219, lv. denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399; see, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465-466, 457 N.Y.S.2d 193, 443 N.E.2d 441).

In the case at bar, plaintiff points to no language in the employee handbook stating that "termination is limited to the grounds stated" or "for cause only" (Marvin v. Kent Nursing Home, 153 A.D.2d 553, 554, 544 N.Y.S.2d 210; see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 448 N.E.2d 86). Further, the employee handbook expressly permits defendant to discharge an employee "without preliminary issuing of oral or written warnings" for "excessive absences or tardiness". The record establishes that plaintiff's absences could be considered excessive and that she did not give the required notice each day of her absence. Thus, it cannot be said that defendant wrongfully terminated plaintiff's employment.

Moreover, assuming that defendant's employee handbook created an express limitation on defendant's...