Opinion
July 3, 1985
Appeal from the Supreme Court, Saratoga County (Williams, J.).
On February 1, 1982, plaintiff slipped and fell on ice and broke his left leg. He returned to his place of employment shortly thereafter with his leg in a cast and walking with the aid of crutches. The record does not clearly indicate the duties performed by plaintiff. It appears that his normal employment was as a salesman and that, on the date of the injury, he was on loan to another company in a supervisory capacity but with his continuing responsibility for sales. For a period of time, he worked about five hours per day and spent a good deal of his time on the telephone. On April 23, 1982, defendant terminated plaintiff's employment.
Plaintiff has commenced this action alleging a cause of action for violation of 42 USC and a common-law action for breach of an employment contract. He now concedes that there is no basis for these two causes of action and has consented to their dismissal. A third cause of action alleges a violation of Executive Law § 296 which prohibits termination of employment due to disability. He also alleged a tort cause of action for a violation of the protection provided him under Workers' Compensation Law § 120. Defendant moved for summary judgment dismissing the entire complaint. Special Term, in addition to the two causes of action first mentioned, dismissed the tort cause of action. Special Term denied defendant's motion to dismiss the action pursuant to the Executive Law. These cross appeals ensued.
A review of plaintiff's complaint reveals that a specific statutory section of 42 U.S.C. was not alleged.
The action is for money damages to compensate plaintiff for severe mental and physical stress and loss of earnings. We agree with Special Term in its determination that the complaint states no viable cause of action in tort. To support an action for intentional tort, it must be established that a defendant, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress ( see, Fischer v. Maloney, 43 N.Y.2d 553, 557). There was no proof to establish such conduct.
Neither does the law of this State recognize the tort of abusive or wrongful discharge of an at-will employee ( see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 297).
In order to establish liability under the Executive Law, it is incumbent upon plaintiff to prove that his employment termination was because of his disability and that, although disabled, his impairment did not preclude him from performing his duties in a reasonable manner. In order for defendant to succeed in its motion for summary judgment on this cause of action, it must clearly establish that no issue of fact remains in that regard. Our examination of the testimony taken by deposition is that there is no clear indication of the reason for plaintiff's discharge. "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( Di Menna Sons v. City of New York, 301 N.Y. 118). This drastic remedy should not be granted where there is any doubt as to the existence of such issues ( Braun v. Carey, 280 App. Div. 101 9), or where the issue is `arguable' ( Barrett v. Jacobs, 255 N.Y. 520, 522); `issue-finding, rather than issue-determination, is the key to the procedure' ( Esteve v. Abad, 271 App. Div. 725, 727)" ( Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; see also, Falk v Goodman, 7 N.Y.2d 87, 91). We conclude that this issue of fact cannot be determined summarily.
Order affirmed, without costs. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.