Toshiba America, Inc. v. Simmons

104 A.D.2d 649, 480 N.Y.S.2d 28, 1984 N.Y. App. Div. LEXIS 20066

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 1984
• Status: Published

Opinion

— In an action, inter alia, for money had and received, wherein defendant counterclaimed for damages for wrongful discharge, plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court for the 9th and 10th Judicial Districts, dated February 27, 1984, which affirmed an order of the County Court, Westchester County (Nastasi, J.), dated July 15, 1983, which denied plaintiff’s motion for summary judgment to dismiss the counterclaim.

Orders reversed, on the law, without costs or disbursements, and plaintiff’s motion for summary judgment dismissing defendant’s counterclaim granted.

Defendant’s employment, pursuant to an oral agreement, was not for a specific term and was, prima facie, a hiring at will (Gould v Community Health Plan, 99 AD2d 479). Although this, per se, does not rule out a cause of action for wrongful discharge (see Weiner v McGraw-Hill, Inc., 57 NY2d 458; cf. Utas v Power Auth., 96 AD2d 940), defendant’s allegation that at the time of hiring he was told by plaintiff’s personnel that plaintiff was “a good employer from the standpoint * * * of job security [and] that if any problems arose, [plaintiff] would endeavor to work them out equitably” is insufficient to defeat plaintiff’s motion for summary judgment (Murphy v American Home Prods. Corp., 58 NY2d 293; Gould v Community Health Plan, supra). We note that the relevant provisions in the employer’s handbook do not exclude termination without cause (cf. Weiner v McGraw-Hill, Inc., supra, p 460). Mollen, P. J., Mangano, O’Connor and Lawrence, JJ., concur.