Summary
affirming dismissal of action to recover for employer's alleged breach of severance pay policy for salaried employee where plaintiff failed to provide "evidence of a regular practice by defendant to make severance payments, and his reliance on that practice in accepting or continuing his employment"
Summary of this case from Clark v. Buffalo Wire Works Co., Inc.Opinion
November 22, 1989
Appeal from the Supreme Court, Columbia County (Connor, J.).
Defendant employed plaintiff in various capacities from 1959 until the termination of his employment in November 1986. Plaintiff thereafter commenced this action to recover for defendant's alleged breach of its written severance pay policy for salaried employees. Defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion; plaintiff appeals.
We affirm. It is undisputed that the terms of plaintiff's employment were not embodied in a written agreement and that plaintiff was not aware until after the termination of his employment that defendant had a policy of providing severance pay to certain employees. In order to defeat defendant's motion, plaintiff was required to come forward with evidence of (1) a regular practice by defendant to make severance payments, and (2) his reliance on that practice in accepting or continuing his employment (see, Allen v Crowell-Collier Publ. Co., 26 A.D.2d 516, revd on other grounds 21 N.Y.2d 403; Morschauser v American News Co., 6 A.D.2d 1028; Luisi v JWT Group, 128 Misc.2d 291, 297; see also, Matter of Lyntex Corp., 403 F. Supp. 284). Because plaintiff was unaware of defendant's policy, it was impossible for him to come forward with proof that he relied upon it in accepting or continuing his employment. In the absence of proof of plaintiff's detrimental reliance upon defendant's severance pay policy, we have no alternative but to conclude that the contract which plaintiff claims defendant breached was not supported by consideration and is, accordingly, unenforceable as a matter of law (see, Weiner v McGraw-Hill, Inc., 57 N.Y.2d 458, 464-465; see also, Methe v General Elec. Co., 150 A.D.2d 853; Dicocco v Capital Area Community Health Plan, 135 A.D.2d 308, 310; Rizzo v International Bhd. of Teamsters, 109 A.D.2d 639, 641-642).
Order affirmed, without costs. Mahoney, P.J., Kane, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.