24 A.D.2d 600 | N.Y. App. Div. | 1965
In an action to recover damages arising out of the allegedly wrongful discharge of plaintiff by the defendant employer, the latter appeals from a resettled order of the Supreme Court, Queens County, entered February 11, 1965, which: (a) granted plaintiff’s motion for summary judgment (CPLR 3212); (b) directed an assessment of the damages; and (c) failed to grant summary judgment in favor of the defendant (CPLR 3212, subd. [b]). Order reversed, without costs; plaintiff’s motion for summary judgment denied; summary judgment dismissing the complaint directed in favor of the defendant, and complaint dismissed, without costs. In our opinion, the collective bargaining agreement at bar conferred upon defendant an unqualified, unlimited power to discharge a probationary employee (such as plaintiff) at any time during the probationary period, with or without cause. Even if that were not so, this action would have to be dismissed because plaintiff did not exhaust the grievance procedures provided by the collective bargaining agreement (see Larsen v. American Airlines, 313 F. 2d 599; Belk v. Allied Aviation Serv. Co., 315 F. 2d 513; Galley v. Pennsylvania R. R. Co., 220 F. Supp. 190, affd. 324 F. 2d 502; cf. Johnson v. Kings County Light. Co., 141 N. Y. S. 2d 411; Panzarella v. New York Cent. System, 27 Misc 2d 57). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.