Goldberg v Four Seasons Nursing & Rehabilitation Ctr.
Annotate this CaseDecided on December 30, 2004
Supreme Court, Kings County
Anna Goldberg, Plaintiff, -
against
Four Seasons Nursing and Rehabilitation Center and StaffPro, Inc., Defendants.
45151/03
Francois A. Rivera, J.
StaffPro, Inc., (hereinafter StaffPro) moves for an order dismissing plaintiff's complaint pursuant to CPLR §§3211(a)(1) and (7), or in the alternative striking plaintiff's request for punitive damages. By notice of cross-motion Four Seasons Nursing and Rehabilitation Center (hereinafter Four Seasons) also moves for an order dismissing the complaint pursuant to CPLR §§3211(a)(1) and (7), or in the alternative striking plaintiff's request for punitive damages. Plaintiff opposes the defendants' motions.
Plaintiff commenced this action against Four Seasons and StaffPro by filing a summons and complaint with the Kings County Clerk on November 18, 2003. Four Seasons is a trade name of Parkshore Health Care LLC, an operator of adult day health care centers (ADHC). StaffPro provides human resource services to Four Seasons. Plaintiff's complaint alleges two causes of action, the first is for wrongful discharge, and the second is for breach of covenant of good faith and fair dealings. Plaintiff also seeks punitive damages.
The following facts are undisputed. On March 3, 1998, plaintiff responded to a newspaper classified advertisement and completed and signed an application for employment as a recreation therapist assistant with the defendants . The application contained the following language: " If I am hired, I understand that I am free to resign at any time, with or without cause and without prior notice, and the employer reserves the right to terminate my employment at any time, with it [sic] or without cause and without prior notice, expect [sic] as may be required by law."
On March 9, 1998, plaintiff was hired by Parkshore, to work as a recreational leader. In or about November 1999, she was promoted to the position of director of the therapeutic department. On October 10, 2002, plaintiff signed an employment contract with the defendants. [*2]Alan J. Saperstein signed as the director of operation for Four Seasons and Elly Geldwerth signed as the vice- president of StaffPro. The contract set forth plaintiff's assignment to Four Seasons' Lakeside ADHC facility. It also set her wages; regular weekly hours; and annual vacation and sick leave entitlement. The contract also included the following specific language: "Your employment here is "AT WILL" meaning that either you, or your employer can terminate your employment according to the terms outlined in the Employee Handbook, which you have been given a copy."
The employee handbook referred to in the aforementioned employment application
set forth the defendants' policies and code of conduct and included the following language in two separate paragraphs:
"The contents of this Employee Handbook are presented as a matter of information only and nothing herein constitutes a promise by Parkshore or StaffPro to give or maintain any benefit or to continue the employment of any person for any definite period of time.""All regular and temporary employees who have not completed the probationary period of employment may be released from employment at any time without the opportunity for the disciplinary process or prior notice. Violations of policies, practice, standards and procedures may warrant immediate release from employment."
By letter dated March 21, 2003, plaintiff was notified of her termination, effective that date, due to organizational changes and financial restraints. The letter was signed by Christine Carbone, the program director of Lakeside ADHC.
Plaintiff contends that her termination was in retaliation for her refusal to participate in a scheme by the defendants to defraud the New York State Medicaid program. She further contends that her employment contract coupled with language contained in defendants' employee handbook prevented the defendants from terminating her at will. Plaintiff relies upon section
II (c)(1) of the handbook which draws an apparent distinction between probationary and regular employees. Plaintiff contends that she is a regular employee and as such may only be terminated for cause pursuant to a disciplinary process.
Defendants contend that the documentary evidence establishes as a matter of fact and as a matter of law that the defendant is an at will employee. Defendants rely on plaintiff's application for employment signed on March 3, 1998, which contained language reserving the employer's right to terminate the applicant at will and without cause. They also rely on the employment contract signed by the parties on October 10, 2002, which describes plaintiff's status as an employee at will. They also rely on language in the manual which reserves the right of the employer to release from employment all regular or temporary employees who have not completed the probationary period without prior notice or the opportunity for a disciplinary process.
Defendants have moved pursuant to CPLR §§3211 (a)(1) and (7) to dismiss plaintiff's complaint. A motion made pursuant to CPLR 3211 seeks a dismissal pre-answer or before issue is joined. A motion made pursuant to CPLR §3211(a)(1) contemplates that the defense will be established by documentary evidence alone and without reference to evidence derived from [*3]affidavits (Siegel, New York Practice 3rd ed §259 [1999]). A motion for an accelerated judgment of dismissal pursuant to CPLR§3211(a)(7) may utilize affidavits and other forms of proof to attack the merits of a cause of action. To succeed on the motion, the defendant must convince the court that nothing the plaintiff can reasonably be expected to prove would help; that the plaintiff just doesn't have a claim (Siegel, New York Practice 3rd ed §265 [1999]).
The fundamental issue presented is whether plaintiff's complaint states a cause of action for breach of an employment contract in light of the undisputed documentary evidence submitted by the defendant. Where the term of employment is for an indefinite period of time, it is presumed to be a hiring at will that may be freely terminated by either party at any time for any reason or even for no reason (Lobosco v New York Tele. Co./NYNEX 96 NY2d 312 [2001]. New York does not recognize the tort of wrongful discharge. ((Lobosco v New York Tele. Co./NYNEX, supra., 96 NY2d at 316 [2001]; see also Murphy v. Home Prods. Corp.,58 NY2d 293-297 [1983]. New York has also refused to adopt the implied covenant of good-faith analysis recognized in some jurisdictions in employment contracts (Sabetay v. Sterling Drug, Inc., 69 NY2d 329-335 [1987]; see also Murphy v. Home Prods. Corp.,58 NY2d at 304-305 [1983]). Furthermore, there is no exception for firings that violate public policy such as, for example, discharge for exposing an employer's illegal activities (Murphy v. Home Prods. Corp., supra 58 NY2d at 301).
New York does, however, recognize an action for breach of contract when plaintiff can show that the employer made its employee aware of an express written policy limiting the right of discharge and the employee detrimentally relied on that policy in accepting employment (Lobosco v New York Tele. Co./NYNEX supra 96 NY2d at 316 [2001]; see also Weiner v. McGraw-Hill Inc. 57 NY2d 458 [1982].
The plaintiff's employment application and employment contract establish that she was not hired for any specific duration and was thus, presumed to be an employee at will (Lobosco v New York Tele. Co./NYNEX 96 NY2d 312 [2001]. The court finds that the employee manual relied upon by the parties did not express a written policy limiting defendants' right to discharge its employees at will. To the contrary, the employee manual explicitly reserved the employer's right to terminate any regular or temporary employee without prior notice or the opportunity for a disciplinary process. The manual, therefore, did not limit the defendants' right to discharge an employee at will to just and sufficient cause only. It is noted that plaintiff's summons and complaint do not plead a claim of detrimental reliance (Batenbach v. Board 239 AD2d 372 [2nd Dept. 1997]). Both causes of action rather rely on contract principal. The first, for breach of contract, and the second, for breach of covenant of good faith and fair dealings.
In its decision issued in 1987, in the matter of Sabetay v. Sterling Drug, Inc., the Court of Appeals expressly rejected the concept of implied covenant of good faith in employment contracts. "We rejected plaintiff's invitation to find an implied covenant of good faith in the employment contract. In so ruling, we distinguished an employment contract from other types of contract where the implied-in-law theory has been adopted... No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship... in which the law accords the employer an unfettered right to terminate employment at any time. In the context of such an employment it would be incongruous [*4]to say that an inference may be drawn that the employer impliedly agreed to a provision which would be destructive of his right of termination. To imply such a limitation from the existence of an unrestricted right would be internally inconsistent." Sabetay v. Sterling Drug, Inc., 69 NY2d 329-335 [1987].
Inasmuch as the undisputed documentary evidence demonstrates no limitation on the employers right to terminate at will employees without cause, plaintiff's first cause of action for breach of contract must be dismissed. As to plaintiff's second cause of action for breach of implied covenant of good faith and fair dealings, New York has expressly rejected this concept to employment contracts. Plaintiff's second cause of action must therefore be dismissed as a matter of law. The court therefore does not reach defendants' request to strike plaintiff's claim for punitive damages.
The foregoing constitutes the decision and order of the court.
Dated: December 30, 2004______________________
J.S.C.
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