Dickstein v. Del Laboratories, Inc.

• Decision Date: 05 December 1988
• Citation: 535 N.Y.S.2d 92,145 A.D.2d 408
• Parties: , 113 Lab.Cas. P 56,118 Dorothy DICKSTEIN, Respondent, v. DEL LABORATORIES, INC., et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 92

535 N.Y.S.2d 92

145 A.D.2d 408, 113 Lab.Cas. P 56,118

Dorothy DICKSTEIN, Respondent, v. DEL LABORATORIES, INC., et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Dec. 5, 1988.

Easton & Echtman, P.C., New York City (Irwin M. Echtman and Stuart F. Cartoon, of counsel), for appellants.

Venditto & Gash, Massapequa (John Venditto, of counsel), for respondent.

Before LAWRENCE, J.P., and EIBER, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for wrongful discharge, breach of an employment contract and unlawful dismissal based on age discrimination, the defendants Del Laboratories, Inc., and Dan K. Wassong, William Muilenberg and Melvyn Goldstein (officers of Del Laboratories, Inc.) appeal from so much of an order of the Supreme Court, Nassau County (Wager, J.), entered March 3, 1988, as after granting those branches of the appellants' motion which were to dismiss the plaintiff's seventh and eighth causes of action insofar as they are asserted against them, denied the remainder of their motion for summary judgment dismissing the remainder of the complaint in its entirety insofar as it is asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted in its entirety, the complaint is dismissed insofar as it is asserted against the appellants, and the action as against the remaining defendant is severed.

The plaintiff's employment with the appellant Del Laboratories, Inc. pursuant to a verbal agreement for an indefinite term was, prima facie, a hiring at will (see, Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919). As this court has noted:

"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 applicatio 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" (Diskin v. Consolidated Edison Co. of NY, 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, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441).

In this case, there are no triable questions of fact precluding the granting of the appellants' motion dismissing the plaintiff's breach of contract claim as a matter of law (see, Sabetay v. Sterling Drug, 69 N.Y.2d 329, 514 N.Y.S.2d 209, 506 N.E.2d 919, supra ). The plaintiff's deposition testimony reveals that the only inducements for leaving her previous job were the increase in salary and that the work was more interesting. Moreover, the personnel policy memorandum relied on by the plaintiff, while enumerating 12 reasons for an employee's dismissal, does not limit the appellants' right to discharge to just and sufficient cause only....