1 No. 83
Anthony Lobosco,
Appellant,
v.
New York Telephone Company/NYNEX,
Respondent.
_________________________________________________________________
2001 NY Int. 75
June 14, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Leonard N. Flamm, for appellant.
Matthew T. Miklave, for respondent.
_________________________________________________________________
CIPARICK, J.:
The issue presented on this appeal is whether plaintiff's complaint
states a cause of action for breach of an employment contract in light
of defendant's express disclaimer of contractual rights and
obligations contained in its employee manual. For the reasons stated
below, we conclude that it does not.
Plaintiff, Anthony Lobosco, was hired by New York Telephone/NYNEX in
1968 and attained the position of Product Manager in 1987. In 1996
plaintiff became a party-witness for his employer in a litigation
between NYNEX and a number of its contractors. In preparation for his
testimony, plaintiff met with NYNEX counsel, who instructed him to
"limit his testimony to certain particulars only, and to not reveal
certain other particulars." He also claims counsel pressured him "to
testify in a certain way as to certain matters, which (he) did not
believe to be true and/or accurate." Finally, plaintiff claims that he
informed NYNEX counsel that a fellow employee had concealed documents
relevant to the litigation.
In August 1996, plaintiff was fired, ostensibly for having unreported
communications with the adversaries' principals. Claiming that the
real reason NYNEX fired him was in retaliation for refusing to testify
untruthfully, and for "blowing the whistle" on a fellow employee's
unethical conduct, plaintiff sued NYNEX on several theories. This
appeal concerns only the cause of action for breach of contract based
on language contained in an employee manual.
SNIPPETS:
Anthony Lobosco, Appellant, v.
This opinion is uncorrected and subject to revision before publication in the New York
The issue presented on this appeal is whether plaintiff's complaint states a cause of action
Plaintiff, Anthony Lobosco, was hired by New York Telephone/NYNEX in 1968 and attained the
In 1996 plaintiff became a party-witness for his employer in a litigation between NYNEX and a
plaintiff claims that he informed NYNEX counsel that a fellow employee had concealed
Claiming that the real reason NYNEX fired him was in retaliation for refusing to testify
"* * * Reporting violations.
If employees have knowledge or suspicion of any illegal, unethical or fraudulent acts
"* * * NYNEX assures protection against any form of reprisal for reporting actual or
"United States employees * * * must understand that at NYNEX there is no fixed duration to
They can terminate their employment whenever they wish and for whatever reason they might
The court held that the general provisions denying the creation of contract rights were
The Appellate Division, with two Justices dissenting, reversed and dismissed the complaint in
We now affirm but for different reasons.
Furthermore, there is no exception for firings that violate public policy such as, for
New York does, however, recognize an action for breach of contract when plaintiff can show
In Weiner, plaintiff stated a cause of action for breach of contract when he alleged that, he
hat any termination of employees had to be in strict compliance with the company handbook.
Routinely issued employee manuals, handbooks and policy statements should not lightly be
It would subject employers who have developed written policies to liability for breach of
Chief Judge Kaye and Judges Smith, Wesley, Rosenblatt and Graffeo concur.
Labor Law § 740, the "Whistleblower Law," is not applicable to the facts of this case.
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