D'Avino v. Trachtenburg
| Decision Date | 03 April 1989 |
| Citation | 539 N.Y.S.2d 755,149 A.D.2d 401 |
| Parties | , 117 Lab.Cas. P 56,430 Joan D'AVINO, Appellant, v. Jerome TRACHTENBURG, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
John R. Kelligrew, White Plains, for appellant.
Hurley, Fox, Selig & Kelleher, Stony Point, (Jeanne M. Hurley, of counsel), for respondents.
Before BRACKEN, J.P., and BROWN, KUNZEMAN and SPATT, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for breach of an alleged employment agreement, the plaintiff appeals from (1) an order of the Supreme Court, Rockland County (Hickman, J.), dated October 19, 1987, which granted the defendants' motion to stay examinations before trial and denied the plaintiff's cross motion, inter alia, to strike the defendants' answer, and (2) an order of the same court, dated December 22, 1987, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the orders are affirmed, with one bill of costs.
The plaintiff Joan D'Avino was hired as a staff attorney by the defendant Legal Aid Society of Rockland County, Inc. (hereinafter the Legal Aid Society), in April 1974. In May 1981 the plaintiff became the Executive Director of the Legal Aid Society. The plaintiff alleges that she accepted this promotion in reliance upon an oral representation that she would have the same protection from discharge that was afforded to staff attorneys. Discharge of staff attorneys is governed by the Policies and Procedures Manual of the Legal Aid Society, which provides that after a twelve-month probation period, an employee may only be discharged for cause.
Following a negative evaluation of the plaintiff's job performance, on October 21, 1985, the Board of Directors of the Legal Aid Society voted to discharge her. Relying on the policies and Procedures Manual, the plaintiff thereafter commenced suit against the Legal Aid Society and individual members of its Board of Directors, alleging, inter alia, that by terminating her employment, the Legal Aid Society breached an agreement not to discharge her without cause. The Supreme Court granted summary judgment and dismissed the plaintiff's complaint, finding that no questions of fact were raised with respect to whether this case falls within an exception to the general rule 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 (see, Sabetay v. Sterling Drug, 69 N.Y.2d 329, 514 N.Y.S.2d 209, 506 N.E.2d 919; Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416). We agree that summary judgment was properly granted.
"An action to recover damages for the breach of an employment contract may be maintained, notwithstanding the indefinite term, where the existence of a limitation by express agreement is demonstrated by such circumstances as (1) the employee was induced to leave his prior employment by the assurance that his new employer would not discharge him without cause, (2) that assurance is incorporated into the employment application, and (3) the employment is subject to the provisions of a personnel handbook or manual which provides that dismissal will be for just and sufficient cause only (Weiner v. McGraw-Hill Inc., 57 N.Y.2d 458 [457 N.Y.S.2d 193, 443 N.E.2d 441] )" (Diskin v. Consolidated Edison Co. of N.Y., 135 A.D.2d 775, 777, 522 N.Y.S.2d 888, lv. denied 72 N.Y.2d 802, 530 N.Y.S.2d 554, 526 N.E.2d 45; see also, Dickstein v. Del Labs., App.Div., 535 N.Y.S.2d 92).
The plaintiff's statement that she relied on the discharge provisions in the Legal Aid Society's employment manual in accepting the position of Executive Director is insufficient to bring this case within the exception created by Weiner v. McGraw-Hill, Inc. (supra). In accepting the promotion to a management position the plaintiff was not "induced" to leave other employment and there was no written employment application or other document specifying that the plaintiff's employment was subject to the provisions of the Legal Aid Society's employment manual (see, Diskin v. Consolidated Edison Co. of N.Y., supra). Further, she did not allege that she refused any other employment...
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