Hager v. Union Carbide Corp.

—Order of the Supreme Court, New York County (Kenneth Shorter, J.), entered March 28, 1984 dismissing the complaint, is affirmed, without costs. Special Term properly concluded on this record that none of the five causes of action alleged in the complaint is cognizable. The dissent, relying upon excerpted language from Weiner v McGraw-Hill, Inc. (57 NY2d 458), would sustain the first cause of action, which, after setting forth certain factual assertions, alleges merely that “[defendant’s oral and written representations to plaintiff constitute an agreement for plaintiff’s continued employment by defendant subsequent to defendant’s relocation to Danbury Connecticut”. Accepting the factual allegations 349 of the complaint as true, they show no more than an “employment-at-will” which in our State is terminable at any time, by either party. (Martin v New York Life Ins. Co., 148 NY 117.) As pointed out by Judge Wachtler in his dissenting opinion in Weiner (57 NY2d 458, 467), which was cited with approval in Murphy v American Home Prods. Corp. (58 NY2d 293, 305, n 2): “absent some form of contractual agreement between an employee and employer establishing a durational period, the employment is presumed terminable at the will of either party and the employee states no cause of action or breach of contract by alleging that he or she has been discharged”. (Emphasis added.) Here there is no allegation of any “durational period” nor is there any allegation of a promise, express or implied “ ‘that the employment should continue for a period of time that is either definite or capable of being determined’ ” (Weiner v McGrawHill, Inc., supra, p 465, citing 1A Corbin, Contracts, § 152, p 14). The holding in Weiner (supra, p 465) is inapposite to the case at bar, however since, although no durational period of the employment was established, the majority’s determination finding an enforceable contract was bottomed specifically upon a finding that “an agreement on the part of an employer not to dismiss an employee except for ‘good and sufficient cause only’ and, if such cause was given, until the prescribed procedures to rehabilitate had failed, does not create an ineluctable employment at will.” The plaintiff’s employment in Weiner (p 460) was subject to the provisions of McGraw’s “ ‘handbook on personal policies and procedures’ ” which provided, in pertinent part that “ ‘[t]he company will resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee have been taken and failed”. No such handbook with comparable personnel procedures and policies is alleged to have existed at Union Carbide nor was any such promise made to this plaintiff. Concur — Sandler, J. P., Silverman and Alexander, JJ.