Wernham v. Moore

121 A.D.2d 297, 504 N.Y.S.2d 3, 1986 N.Y. App. Div. LEXIS 58267

Opinion

Order of the Supreme Court, New York County (Dennis Edwards, Jr., J.), entered April 3, 1985, which denied the motion of the plaintiff for summary judgment and which granted the cross motion of the defendants for summary judgment dismissing the amended complaint, modified, on the law, and the cross motion denied, and, as so modified, the order is affirmed, without costs.

The plaintiff, an 11-year employee with the rank of supervisor of a group home for children, was dismissed, allegedly on the ground that he violated a directive that he be available while on vacation to cope with any emergency. The plaintiff claims that he was so available.

The matter has previously been before us on the question of State action (77 AD2d 262), wherein, in an opinion by the Presiding Justice, plaintiff was permitted to amend the complaint to state a cause of action, as an additional basis for relief, based on the theory of a bilateral arrangement.

The defendants contend that as an employee at will, the plaintiff could be discharged. (See, Murphy v American Home Prods. Corp., 58 NY2d 293.) On the other hand, there is an employee handbook which provides for "just-cause” dismissal. (See, Weiner v McGraw-Hill, Inc., 57 NY2d 458.)

There is a question of fact as to whether the employment terms of the personnel manual would apply and also whether, pursuant thereto, there was "just cause” for dismissal. Accordingly, it was error to grant the cross motion for summary judgment. Concur — Kupferman, J. P., Sullivan, Ross and Asch, JJ.