Opinion
May 9, 1995
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Summary judgment on plaintiff's Human Rights Law cause of action was premature, since, without the benefit of any disclosure, plaintiff cannot prove that defendants' claim of economic necessity is a pretext for a termination that was actually motivated by age discrimination (see, Parkoff v General Tel. Elec. Corp., 53 N.Y.2d 412, 416-418; Ioele v Alden Press, 145 A.D.2d 29, 36-37). The remainder of plaintiff's causes of action were properly dismissed. Any common law contract rights plaintiff might have to receive benefits under defendant Fund's retirement plan is preempted by Federal law ( 29 U.S.C. § 1144 [a]; see, Matter of Morgan Guar. Trust Co. v Tax Appeals Tribunal, 80 N.Y.2d 44). Plaintiff's Age Discrimination in Employment claims were not properly before the court because, having withdrawn his EEOC complaint, he never received a right-to-sue letter (Sheehen v Purolater Courier Corp., 676 F.2d 877), nor did he allege any equitable reason for waiving this requirement (Hladki v Jeffrey's Consol., 652 F. Supp. 388). And, defendant Feldman's alleged oral assurances of continued employment for as long as plaintiff wished to work are insufficient by themselves to show an express agreement altering plaintiff's at-will status such as would give him a cause of action for breach of employment contract (Paolucci v Adult Retardates Ctr., 182 A.D.2d 681).
Concur — Ellerin, J.P., Wallach, Kupferman, Nardelli and Mazzarelli, JJ.