Diskin v. Consolidated Edison Co. of N.Y., Inc.

• Citation: 135 A.D.2d 775,522 N.Y.S.2d 888
• Parties: Gerard J. DISKIN, Respondent, v. CONSOLIDATED EDISON CO. OF N.Y., INC., Appellant.
• Decision Date: 28 December 1987
• Court: New York Supreme Court Appellate Division

Page 888

522 N.Y.S.2d 888

135 A.D.2d 775

Gerard J. DISKIN, Respondent, v. CONSOLIDATED EDISON CO. OF N.Y., INC., Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 28, 1987.

Ernest J. Williams, New York City (Sheila Solomon Rosenrauch, of counsel), for appellant.

Donnelly, Huizenga, Wahl & Hagan, P.C., Detroit, Mich. (Timothy G. Hagan, of counsel), and Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, P.C., New York City (Jeffrey P. Englander and Marcie Mintz, of counsel), for respondent.

Before NIEHOFF, J.P., and WEINSTEIN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for abusive discharge and breach of an employment contract, the defendant appeals from an order of the Supreme Court, Nassau County (Christ, J.), dated December 3, 1986, which denied its motion for summary judgment dismissing the plaintiff's first and fourth causes of action.

ORDERED that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the complaint is dismissed in its entirety.

In or about 1958 the plaintiff Gerard Diskin was hired by the defendant Consolidated Edison Co. of N.Y., Inc. (hereinafter Con Edison), as a junior technician, a position governed by a collective bargaining agreement. In or about 1968 the plaintiff was promoted into the ranks of management and at that time became an employee-at-will. He was placed in a six-year management program, was promoted several times, held supervisory positions in several divisions and received numerous pay increases. In 1977, however, the plaintiff's work performance began to deteriorate and on August 20, 1979, he was notified that his employment with Con Edison would be terminated on December 31, 1979. The plaintiff then appealed his termination to the upper management of Con Edison, utilizing a procedure promulgated by Con Edison in its "Personnel Practices and Procedures" manual. Following a review of his case, upper management decided that it would not modify the decision to terminate his employment.

The plaintiff then commenced this action seeking damages for his wrongful termination. The plaintiff originally asserted five separate causes of action. However, by order dated August 11, 1981, from which plaintiff took no appeal, the Supreme Court, Nassau County (Burstein, J.) dismissed all of the causes of action except the first and fourth. The first and fourth causes of action are premised on abusive discharge and breach of contract. By notice of motion dated July 24, 1986, Con Edison moved for an order pursuant to CPLR 3212 dismissing the plaintiff's remaining causes of action on the grounds that (1) New York does not recognize a cause of action sounding in "abusive discharge", and (2) Weiner v. McGraw-Hill, 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, mandates dismissal of the breach of contract cause of action.

In opposition to the motion, the plaintiff relied primarily on the allegations of his previously served bill of particulars wherein he alleged he had been a whistleblower. He also alleged that on numerous occasions, his superiors made oral assurances that his entry into management would not jeopardize his employment security, and that he would only be discharged for cause. The plaintiff further alleged that he relied upon Con Edison's "Personnel Practices and Procedures" manual which, the plaintiff claims, indicates he would only be discharged for cause. The plaintiff argued, as he does now on appeal, that the guidelines contained in the manual, together with the oral assurances of upper management, created a contract of employment between him and Con Edison, into which must be implied a covenant of...