Summary
In Ferring, 244 AD2d at 204, the Appellate Division, First Department, held that a claim for wrongful termination in violation of an employee handbook policy was properly dismissed where two manuals containing the allegedly violated policy did not limit the employer's right of discharge and, in any case, plaintiff could not have detrimentally relied on the policy because the manuals were not provided to plaintiff until after plaintiff accepted the job.
Summary of this case from Sontag v. Emmis Commc'ns Corp.Opinion
November 13, 1997
Appeal from the Supreme Court, New York County (Barbara Kapnick, J.).
The fourth cause of action, alleging wrongful termination in violation of an employee handbook policy, was properly dismissed. "Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" (Matter of De Petris v Union Settlement Assn., 86 N.Y.2d 406, 410). While "[a]n employee may recover, however, by establishing that the employer made the employee aware of its express written policy limiting its right of discharge and that the employee detrimentally relied on that policy in accepting the employment" (supra, at 410), plaintiff has not satisfied the narrow exception to the at will employment doctrine enunciated in Weiner v. McGraw Hill, Inc. ( 57 N.Y.2d 458). The two manuals upon which she relies do not limit defendants' right of discharge and, in any event, it is undisputed that she was not supplied with these guidelines prior to securing a job with defendant. Therefore, there was no detrimental reliance on the subject policy in accepting the employment (Matter of De Petris v. Union Settlement Assn., supra, at 410; see also, Weiner v. McGraw-Hill, Inc., supra).
The court properly refused to dismiss the third cause of action alleging disability discrimination. The purportedly inconsistent position that plaintiff took before the Social Security Administration in applying for disability benefits was not asserted against defendant and did not involve the same standard as the one at issue herein (see, Mohamed v. Marriott Intl., 944 F. Supp. 277; American Motorists Ins. Co. v. O'Brien Kreitzberg Assocs., 234 A.D.2d 30). Moreover, plaintiff's appearance before the Social Security Administration, which did not entail a hearing, did not constitute the type of prior legal proceeding that can form the basis for the application of judicial estoppel.
Concur — Rosenberger, J. P., Nardelli, Andrias and Colabella, JJ.