Opinion
June 19, 1986
Appeal from the Supreme Court, New York County (Dennis Edwards, Jr., J.).
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 A.D.2d 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 N.Y.2d 293.) On the other hand, there is an employee handbook which provides for "just-cause" dismissal. (See, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 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.