Ryan v. Kellogg Partners Institutional Services

¶1dissent in a memorandum by McGuire, J., as follows: I would reverse and dismiss the complaint on the ground that plaintiffs breach of contract claim is barred by the employment application he signed and the employee handbook. With respect to the former, plaintiff acknowledged his understanding that none of appellant-employer Kellogg Partners’ “policies or procedures . . . carry any guarantee of employment for any length of time and that my employment, compensation and benefits are at will and can be terminated, with or without cause or notice, at any time, at the option of [employer] or myself.” The majority upholds plaintiffs claim of entitlement to a bonus on the ground that the language just quoted does not “clearly indicate that bonuses are discretionary.” Even assuming that the application or handbook must “clearly indicate” that bonuses are discretionary, that requirement was easily satisfied. Although the majority is not clear on the point, it may be of the view that the word “bonus” must appear in either the application or the handbook. If so, suffice it to say that none of the cases the majority cites so holds and that, at least in this context, it makes no sense to insist that an employer use a specific rather than a more encompassing word (cf. Bazak Intl. Corp. v Mast Indus., 73 NY2d 113, 125 [1989] [rejecting significance in commercial case of failure of merchant to use “magic words”]). I need not determine whether appellant also is entitled to reversal on the other grounds it raises.