| Martin v Southern Container Corp. |
| 2012 NY Slip Op 00938 [92 AD3d 647] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Eric Martin, Appellant-Respondent, v Southern ContainerCorp. et al., Respondents-Appellants. |
—[*1] Jaspan Schlesinger, LLP, Garden City, N.Y. (Stanley A. Camhi and Daniel E. Shapiro ofcounsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.),dated October 19, 2010, as denied his motion for leave to amend the complaint, and granted thatbranch of the defendants' cross motion which was for summary judgment dismissing the firstcause of action, and the defendants cross-appeal from so much of the same order as denied thatbranch of their cross motion which was for summary judgment dismissing the second cause ofaction.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and that branchof the defendants' cross motion which was for summary judgment dismissing the second cause ofaction is granted; and it is further,
Ordered that one bill of costs is awarded to the defendants.
In or around May 1988, when the defendant Southern Container Corp. (hereinafter SCC)hired the plaintiff as a salesperson, the plaintiff's father also worked for SCC as a salesperson. Aletter on SCC letterhead addressed to the plaintiff, dated May 31, 1988 (hereinafter the letteragreement), provided, in pertinent part, "[w]e also hereby agree that upon your father'sretirement, you will be permitted to succeed to his accounts." In addition, at the time of hishiring, the plaintiff was given an Employee Handbook and Benefit Booklet (hereinafter employeehandbook).
Eventually, the plaintiff's father retired from SCC. Later, the plaintiff's employment withSCC was terminated. Subsequently, SCC was acquired by the defendant Rock-Tenn Services,Inc., also known as Rock-Tenn Company (hereinafter Rock-Tenn), or its subsidiary.
The plaintiff commenced this action against SCC and Rock-Tenn (hereinafter together thedefendants). In his first cause of action, the plaintiff alleged, in effect, that the [*2]defendants breached the letter agreement by failing to transfer theaccounts of his father to him upon his father's retirement. In his second cause of action, theplaintiff alleged that the defendants owed him "vacation pay in accordance with the parties'agreement and handbook." In his third cause of action, the plaintiff alleged that the defendantshad been unjustly enriched.
The plaintiff moved for summary judgment on the issue of liability on the first and secondcauses of action. The defendants cross-moved for summary judgment dismissing the complaint.The plaintiff also separately moved for leave to amend the complaint. In an order dated October19, 2010, the Supreme Court, inter alia, granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the first cause of action, denied that branch of thedefendants' cross motion which was for summary judgment dismissing the second cause ofaction, and denied the plaintiff's separate motion for leave to amend the complaint.
The Supreme Court properly granted that branch of the defendants' cross motion which wasfor summary judgment dismissing the first cause of action, which sought to recover damages, ineffect, for breach of contract. In moving for summary judgment dismissing this cause of action,the defendants argued, inter alia, that the plaintiff succeeded to the accounts which were theaccounts of his father when his father retired. In addition, in accordance with the plain meaningof the letter agreement, the defendants were not precluded from transferring the plaintiff's father'saccounts from the father to other salespersons prior to the father's retirement (see generallyGreenfield v Philles Records, 98 NY2d 562, 569 [2002]; Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 AD3d699, 699 [2004]). Consequently, and contrary to the plaintiff's contention, the defendantswere not obligated to maintain the father's accounts as an integral unit up until the time when theplaintiff succeeded to them, but only to permit the plaintiff to succeed to those accounts whichactually remained with the father as of the date of the father's retirement. In support of theirmotion, the defendants submitted proof establishing, prima facie, that the plaintiff did, in fact,take over the accounts of his father following his father's retirement. In response to thedefendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff failedto raise a triable issue of fact (see Smithv Meridian Tech., Inc., 86 AD3d 557, 560 [2011]).
The defendants also argue that a disclaimer provision in the employee handbook bars theplaintiff's second cause of action to recover vacation pay based on the employee handbook."Routinely issued employee manuals, handbooks and policy statements should not lightly beconverted into binding employment agreements . . . It would subject employers whohave developed written policies to liability for breach of employment contracts upon the mereallegation of reliance on a particular provision. Clearly, that cannot be, especially in light ofconspicuous disclaiming language" (Lobosco v New York Tel. Co./NYNEX, 96 NY2d312, 317 [2001]). Here, the handbook relied upon by the plaintiff provides no basis for theimposition of an implied contractual obligation upon the defendants to pay the plaintiff for hisunused vacation time (see Sabetay v Sterling Drug, 69 NY2d 329 [1987]; O'Connor vEastman Kodak Co., 65 NY2d 724 [1985]; Murphy v American Home Prods. Corp.58 NY2d 293 [1983]), and the conspicuous inclusion of language disclaiming any intent to createa binding contract further undermines the plaintiff's contention. Therefore, the Supreme Courtshould have granted that branch of the defendants' motion which was for summary judgmentdismissing the second cause of action.
The Supreme Court providently exercised its discretion in denying the plaintiff's separatemotion for leave to amend the complaint since the proposed amended complaint was patentlydevoid of merit (see CPLR 3025 [b]; Barker v Time Warner Cable, Inc., 83 AD3d 750, 752 [2011]; Petty v Barnes, 70 AD3d 661, 663[2010]).
The parties' remaining contentions need not be reached in light of the foregoingdetermination. Angiolillo, J.P., Dickerson, Austin and Cohen, JJ., concur. [Prior CaseHistory: 29 Misc 3d 1217(A), 2010 NY Slip Op 51862(U).]