Oliner v. Sovereign Bank

123 A.D.3d 1041

999 N.Y.S.2d 856

2014 N.Y. Slip Op. 09002

In the Matter of Jay OLINER, appellant

v.SOVEREIGN BANK, et al., respondents.

2013-10264

Supreme Court, Appellate Division, Second Department, New York.

Dec. 24, 2014.

Leavitt & Kerson, Woodside, N.Y. (Paul E. Kerson of counsel), for appellant.

Littler Mendelson P.C., Melville, N.Y. (Keith J. Rosenblatt and William H. Ng of counsel), for respondents.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of Sovereign Bank and Santander Bank dated May 3, 2013, which terminated the petitioner's employment, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Feinman, J.), entered September 19, 2013, which granted the motion of Sovereign Bank and Santander Bank pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

“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, 633 N.Y.S.2d 274, 657 N.E.2d 269 ; see Lobosco v. New York Tel. Co./ NYNEX, 96 N.Y.2d 312, 316, 727 N.Y.S.2d 383, 751 N.E.2d 462 ; Daub v. Future Tech Enter., Inc., 65 A.D.3d 1004, 1005, 885 N.Y.S.2d 115 ). “A disciplined or terminated employee may seek article 78 review to determine whether the employer contravened any of its own rules or regulations in taking ... disciplinary action” (Matter of Hanchard v. Facilities Dev. Corp., 85 N.Y.2d 638, 641–642, 628 N.Y.S.2d 4, 651 N.E.2d 872 ; see Matter of Mitchell v. Dowdell, 172 A.D.2d 1032, 569 N.Y.S.2d 291 ).

Here, the petitioner alleged that the respondents, who had employed him since June 2009, acted arbitrarily and capriciously by failing to follow certain disciplinary procedures set forth in their personnel handbook prior to terminating his employment on May 3, 2013. Accordingly, the petition states a cause of action (see CPLR 3211[a][7] ). However, the documentary evidence submitted by the respondents established a complete defense to the proceeding (see CPLR 3211[a][1] ), as it “utterly refute[d]” the petitioner's factual allegations, “thereby conclusively establishing a defense as a matter of law” (Mendelovitz v. Cohen, 37 A.D.3d 670, 670, 830 N.Y.S.2d 577 ). Specifically, the respondents' personnel handbook provided that “[t]he steps of the progressive discipline process are not guaranteed,” and that management reserves the right to decide what disciplinary action is appropriate, including whether to proceed immediately to termination. Hence, the very document relied upon by the petitioner defeated his contention that the respondents were required to strictly comply with the disciplinary procedures articulated in that document. Moreover, “[a] limitation on the employer's right to terminate at-will employment will not be inferred solely from the...