Morschauser v. American News Co.

6 A.D.2d 1028, 178 N.Y.S.2d 279, 42 L.R.R.M. (BNA) 2796, 1958 N.Y. App. Div. LEXIS 4638

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1958
• Status: Published

Opinion

Order granting defendant’s motion for summary judgment dismissing the first cause of action in the complaint is reversed on the law, with costs to appellant to abide the event, and the motion is denied with leave to defendant, if it is so advised, to renew its motion after the conclusion of examinations before trial. In the first cause of action, 1,340 former nonunion employees, whose employment was terminated when defendant decided to eliminate its wholesale periodical department, seek severance pay in varying amounts for each plaintiff. If the defendant engaged in' a practice of making severance payments to nonunion employees on the termination of employment, and if such employees relied on this practice in accepting or continuing their employment, plaintiffs have a cause of action against the defendant. The question presented on the motion for summary judgment was whether there was a triable issue of fact as to the existence of such a practice, and as to plaintiffs’ knowledge and reliance thereon. The affidavits submitted in opposition to the motion for summary judgment aver that defendant followed a regular practice of making severance payments to nonunion employees according to a set plan or policy. Plaintiffs named specific individuals who received severance pay. Defendant did not come forward with any affidavit explaining the situation as to the 40-odd individuals specifically named. Knowledge of the circumstances as to the termination of the services of those persons, and of the alleged payment of severance pay to them, remains peculiarly with defendant. Defendant did admit it made severance payments to some persons but characterized these as “exceptional cases”. However, no attempt was made to clarify the situation as to the specific persons whose names plaintiffs offered in support of their claim of the existence of a practice. Therefore, we cannot say upon the present state of the record that there is no triable issue as to the existence of severance pay practice and plaintiffs’ knowledge and reliance thereon. Disclosures in the examination before trial may fortify plaintiffs’ case or demonstrate its complete invalidity. Hence, the defendant is afforded an opportunity to renew its motion for summary judgment as to the first cause of action, if so advised, upon completion of the examinations before" trial. Concur—Botein, P. J., Breitel, Rabin, Valente and McNally, JJ.