Opinion
May 7, 1999
Appeal from Order of Supreme Court, Onondaga County, Major, J. — Summary Judgment.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. The court erred in determining that the waiver in plaintiff's early pension benefit option application constituted a waiver of plaintiff's age discrimination cause of action. That waiver was limited to "employment claims" and was not sufficiently broad to cover plaintiff's cause of action ( cf., Stone v. National Bank Trust Co., 188 A.D.2d 865, 867-868; Skluth v. United Merchants Mfrs., 163 A.D.2d 104, 107). Defendant met its initial burden of proof, however, by establishing that plaintiff had, several years of poor work performance evaluations before he applied for an early pension. Plaintiff failed to raise issues of fact whether defendant's proffered reason was false or unworthy of belief, and whether plaintiff's age was more likely than not the real reason for poor performance evaluations ( see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629-631; Almanzar v. Collegiate Church Corp., 255 A.D.2d 230).
Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.