Tucker v. Battery Park City Parks Corp.

• Decision Date: 28 May 1996
• Citation: 642 N.Y.S.2d 891,227 A.D.2d 318
• Parties: Earl TUCKER, Petitioner-Appellant, For a Judgment, etc., v. BATTERY PARK CITY PARKS CORPORATION, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 891

642 N.Y.S.2d 891

227 A.D.2d 318

Earl TUCKER, Petitioner-Appellant For a Judgment, etc., v. BATTERY PARK CITY PARKS CORPORATION, Respondent-Respondent.

Supreme Court, Appellate Division First Department.

May 28, 1996.

John G. Lipsett, for petitioner-appellant.

Robert R. Reed, for respondent-respondent.

Before MILONAS, J.P., and ELLERIN, RUBIN, KUPFERMAN and ROSS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered March 8, 1995, which, in a proceeding pursuant to CPLR article 78 to annul respondent's determination terminating petitioner's employment with it, granted respondent's motion to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.

The petition fails to allege facts sufficient to overcome the presumption that petitioner's employment was one at will. Even if the employee manual on which petitioner relies were to be construed as requiring good cause for petitioner's termination and the giving of notice and for opportunity to him to take corrective measures (but see, e.g., Manning v. Norton Co., 189 A.D.2d 971; 971-972, 592 N.Y.S.2d 154; 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; Marvin v. Kent Nursing Home, 153 A.D.2d 553, 554, 544 N.Y.S.2d 210), it remains that there are no allegations that petitioner was induced to leave prior employment or otherwise suffered a detriment in reliance on any such limitations (see, id., 189 A.D.2d at 972, 592 N.Y.S.2d 154; id., 167 A.D.2d at 592, 563 N.Y.S.2d 219; id., 153 A.D.2d at 555, 544 N.Y.S.2d 210). Indeed, petitioner concedes that he was not even aware of the four-step disciplinary procedure he claims he was deprived of until after he became respondent's employee (see, Marvin v. Kent Nursing Home, id.). "Mere existence of a written policy ... does not limit an employer's right to discharge an at-will employee ..." (Matter of De Petris v. Union Settlement Assn., 86 N.Y.2d 406, 410, 633 N.Y.S.2d 274, 657 N.E.2d 269). Detrimental reliance must also be shown regardless of whether the discharged employee portrays his claim not as one for breach of a just cause provision but for arbitrary and capricious conduct in failing to follow internal termination procedures (id., at 411, 633 N.Y.S.2d 274, 657 N.E.2d 269). Nor does it avail petitioner that respondent is a not-for-profit public benefit corporation where ...