Lapidus v. New York City Chapter of the New York State Ass'n For Retarded Children, Inc.

• Decision Date: 26 June 1986
• Citation: 504 N.Y.S.2d 629,118 A.D.2d 122
• Parties: Leopold LAPIDUS, Plaintiff-Appellant-Respondent, v. NEW YORK CITY CHAPTER OF THE NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., and Michael Goldfarb, Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 629

504 N.Y.S.2d 629

118 A.D.2d 122

Leopold LAPIDUS, Plaintiff-Appellant-Respondent, v. NEW YORK CITY CHAPTER OF THE NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., and Michael Goldfarb Defendants-Respondents-Appellants.

Supreme Court, Appellate Division First Department.

June 26, 1986.

David I. Rosen, of counsel (Clifton Budd Burke & DeMaria, New York City), for defendants-respondents-appellants.

Stanford M. Singer, of counsel (Abrams Lerner Kisseloff Kissen & Lapidus, P.C., New York City), for plaintiff-appellant-respondent.

Before KUPFERMAN, J.P., and SULLIVAN, ROSS, FEIN and ELLERIN, JJ.

SULLIVAN, Justice.

Plaintiff was hired as the controller of the New York City Chapter of the New York State Association for Retarded Children, Inc. on or about October 15, 1974 by its then executive director, I. Joseph Harris. According to plaintiff, Harris assured him that it was the Association's long-standing policy to dismiss employees only for cause and that an elaborate grievance procedure was available to all employees.

More specifically, Harris informed plaintiff that managerial employees were afforded all the benefits to which union employees were entitled, as set forth in their collective bargaining agreement, including those benefits having to do with dismissal and termination. As explained by Harris, who has confirmed that he negotiated such an agreement with plaintiff on behalf of the Association, these benefits also included salary increases based on job performance and other accoutrements to which union employees were not entitled. According to plaintiff, Harris reduced the terms of the hiring to a writing, which he signed and supposedly filed in plaintiff's personnel file. The writing itself, however, could not be found in the Association's files, and, despite a discovery notice therefor, was never produced, although a June 4, 1975 Associati memorandum refers to an "initial hiring agreement 10/15/74."

According to plaintiff, who had been unemployed at the time the Association hired him, he had been actively seeking employment with several firms. Since job security was one of his priorities, he had passed up several opportunities, including one at a higher starting salary as a senior accountant with Clarance Rainess & Co., because the other offers could not match the Association's in that regard.

Plaintiff alleges that during the course of his employment with the Association, Michael Goldfarb, who became its executive director in September, 1975, made disparaging comments about the older employees on several occasions. These included the expression of a desire to reorganize the Association, so as to bring in "young blood", and an observation that too many of the department heads were over fifty years of age.

On May 25, 1983, after having earlier that month expressed some dissatisfaction with plaintiff's job performance, Goldfarb summoned him to his office and notified him that he was being relieved of his duties as controller and discharged. After contemplating the offer overnight, plaintiff accepted the option tendered him of resigning his employment in exchange for a separation package which, inter alia, included three months severance pay. Although refusing to sign a proffered form of agreement conditioning such severance pay upon a purported voluntary resignation, plaintiff submitted a letter, dated May 26, 1983, stating, "I hereby resign my position as controller effective today." On June 23, 1983, the Association filed a Report of Employment with the New York State Department of Labor, noting plaintiff's discharge because of a "reorganization." In addition to the severance payments, the Association continued to provide plaintiff with health insurance until April 1, 1984.

On or about July 23, 1983, plaintiff commenced this action, seeking damages from both the Association and Goldfarb for breach of an employment agreement, intentional infliction of emotional distress, and age discrimination in violation of Article 15 of the Executive Law, known as the Human Rights Law. After joinder of issue the Association and Goldfarb moved for summary judgment dismissing the complaint. Special Term dismissed the causes of action for breach of employment contract and intentional infliction of emotional distress, but denied the motion as to the cause of action for age discrimination. After the parties had filed their respective notices of appeal and cross-appeal the Association and Goldfarb moved for renewal and reargument. Plaintiff cross-moved for similar relief, seeking reinstatement of the two dismissed causes of action. Special Term granted defendants' motion for reargument and dismissed the age discrimination cause of action as against Goldfarb but denied the cross-motion, from which disposition plaintiff has appealed. Thus, the only claim surviving in the complaint is the age discrimination cause of action against the Association. We reinstate the breach of employment contract cause of action as well as the cause of action against Goldfarb for age discrimination.

Special Term dismissed the contract action on the ground that plaintiff failed to establish sufficiently his reliance on the representations made on behalf of the Association at the time he was first hired, thereby distinguishing the instant case from Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441. Weiner is notable because it sets forth an exception to the general rule in New York, enunciated in Martin v. New York Life Ins. Co., 148 N.Y. 117, 42 N.E. 416, that an employment for an indefinite term is presumed to be a hiring at will. Weiner held that, upon an appropriate evidentiary showing, a limitation on the employer's right of termination could be imported into an employment of indefinite duration. Included in the proofs there was an express provision in the employer's handbook on personnel policies and procedures limiting its right to dismiss to "just and sufficient cause only." In such a case, where the limitation is implied, reliance is, of course, a necessary element. Here, however, plaintiff's contract claim is based upon a writing, allegedly signed on behalf of the Association by its then executive director, I. Joseph Harris, which, according to plaintiff, expressly incorporated by reference the rights accorded union employees under their union contract, including, without limitation, those involving discharge or termination. Thus, in the face of an express promise, the issue of reliance becomes irrelevant.

That plaintiff could not produce the written employment contract upon which he relies is not fatal to his claim. Since the record contains sworn testimony showing the existence of such a document and that it was in the possession of the Association, which was duly served with a notice to produce and has failed to do so, plaintiff may offer secondary evidence establishing its contents. (Dependable Lists, Inc. v. Malek, 98 A.D.2d 679, 469 N.Y.S.2d 754; Brownlee v. Hot Shoppes, Inc., 23 A.D.2d 848, 259 N.Y.S.2d 271; Richardson on Evidence, 10th ed., § 599.)

Through his own sworn deposition testimony and affidavit, corroborated, in part, by Harris's affidavit and a copy of an Association internal memorandum referring to the employment agreement of October 15, 1974 which "specifies automatic increase ... of base pay ...", plaintiff made a more than adequate factual showing of a written employment agreement providing for discharge only for cause. Another memorandum, dated November 3, 1982, from Goldfarb to "all department heads" also confirmed the Association's policy of extending all union benefits to non-union employees. Thus, at the very least, on this record, the issue of the existence of a written contract of employment, and its contents, presents a question of fact. By viewing the breach of contract claim as one that had to fall strictly within the factual pattern of Weiner, Special Term denied plaintiff the opportunity at trial of proving an express agreement not to discharge him except for cause.

Moreover, and in any event, plaintiff also essentially established the same set of circumstances relied upon in Weiner as evidencing an implied limitation of the employer's right of termination, in derogation of the presumed at-will employment, in a hiring for an indefinite term. In holding that the existence of such a limitation turned on the totality of circumstances, the court there cited as significant the following four factors: the employee was induced to leave his prior employment with the assurance he would not be dismissed without just cause; the presence of a statement in the employment application that the employee would not be dismissed without just cause; his rejection of other employment opportunities in reliance on these assurances and the existence of an employer's personnel manual expressly stating that dismissal would be only for just cause and only after rehabilitative efforts had failed. While plaintiff does not assert that he left prior employment on the basis of the Association's promise of job security, he does allege that he foresook other job opportunities in reliance thereon. Similarly, while there was no employment application or personnel manual, the Association's union contract, the benefits of which applied to nonunion employees as well, not only sets forth the principle of termination for cause, but also includes the grievance machinery for breach by the employer. Thus, in many ways the facts here parallel those in Weiner.

Generally speaking, those cases which have refused to apply Weiner fall into three categories: those where there was either no personnel manual, or similar writing, or if there was one, it failed to set forth any provisions governing discharge (see, e.g., Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599; affd. 63 N.Y.2d 541, ...