Pellarin v. General Motors Acceptance Corp.

127 A.D.2d 642, 511 N.Y.S.2d 873, 1987 N.Y. App. Div. LEXIS 43131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1987
• Status: Published

Opinion

In an action, inter alia, to recover damages for wrongful termination of employment, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Brown, J.), dated May 28, 1985, which granted the respondent’s motion to dismiss the first, third and fourth causes of action and for summary judgment dismissing the second cause of action.

Ordered that the order is affirmed, with costs.

Special Term properly dismissed the third cause of action, alleging that the plaintiff had been wrongfully terminated from his employment by the respondent, because it did not meet the pleading requirements set forth in Weiner v McGraw-Hill (57 NY2d 458). Specifically, we note that the plaintiff’s written employment contract indicated that he was a month-to-month employee, and provided that the agreement could only be altered by another written and signed document. Further, the personnel memoranda upon which the plaintiff relied merely presented suggested guidelines and general directives which could not have been intended as a binding promise to dismiss only upon just cause.

In addition, the first and fourth causes of action were properly dismissed by reason of their untimeliness, as noted in a prior order of the same court, dated January 31, 1984, which dismissed those causes of action against the respondent’s codefendant.

Finally, the second cause of action was also properly dismissed. The respondent established that all the moneys owing to the plaintiff had been paid to him and the plaintiff failed to raise a triable issue of fact with respect to any overtime moneys allegedly owed to him. Rubin, J. P., Lawrence, Kooper and Spatt, JJ., concur.