
    Innovative Chemical Corporation, Appellant, v Richard Frazer, Jr., Respondent.
    (Appeal No. 1.)
    [595 NYS2d 702]
   Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: By his own testimony that the terms of his employment were within the discretion of his employer, defendant has conceded that he was an at-will employee. The court, therefore, erred in granting him judgment on his second counterclaim, which sought damages based on wrongful discharge (see, Murphy v American Home Prods. Corp., 58 NY2d 293, 305; see also, Sabetay v Sterling Drug, 69 NY2d 329), and the award of $27,300 on that counterclaim must be vacated. Because plaintiff’s argument that defendant breached his duty of loyalty to plaintiff is made for the first time on appeal, we do not consider it. Plaintiff failed to brief the issue raised in appeal No. 2 and we therefore affirm the order in that appeal. (Appeal from Judgment of Supreme Court, Erie County, Ricotta, J. — Breach of Contract.) Present — Pine, J. P., Fallon, Boomer, Davis and Boehm, JJ.  