Aurielen Lintermans, Inc. v. Resca

Appellate Division of the Supreme Court of New York

Aurielen Lintermans, Inc. v. Resca

222 A.D.2d 253, 635 N.Y.S.2d 23, 1995 N.Y. App. Div. LEXIS 12830

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 12, 1995

StatusPublished

This text of 222 A.D.2d 253 (Aurielen Lintermans, Inc. v. Resca) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aurielen Lintermans, Inc. v. Resca, 222 A.D.2d 253, 635 N.Y.S.2d 23, 1995 N.Y. App. Div. LEXIS 12830 (N.Y. Ct. App. 1995).

Pincite

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered October 27, 1993, which, inter alia, granted so much of plaintiffs cross-motion as sought summary judgment on its first cause of action for breach of contract against defendant-appellant, unanimously reversed, on the law, and plaintiffs cross-motion with respect to said first cause of action is denied, with costs.

The plaintiff corporation sued the defendant-appellant for, inter alia, breach of an employment agreement, pursuant to which defendant-appellant was employed as "a haircutter and hairstylist and assistant manager” for the term of February 1, 1984 to January 31, 1987. The agreement did not contemplate termination of defendant-appellant’s employment before the end of the stated term. By letter dated August 2, 1985, defendant-appellant terminated his employment with the plaintiff. While the letter itself cites an unspecified breach of a "Shareholders’ Agreement dated February 14, 1984” as the reason for his resignation, at his deposition, defendant-appellant cited other reasons for his resignation, which included intolerable work conditions, a material change in duties and reduction in rank. Defendant-appellant’s statements are supported by the affidavit of another employee hired by the plaintiff to act in a number of capacities including that of manager.

"The law is clear that if an employee is under contract to fill a particular position, any material change in his duties or sig[254]*254nificant reduction in rank may be treated by the employee as a breach of the contract” (Hondares v TSS-Seedman’s Stores, 151 AD2d 411, 413). Here, the evidence raises triable issues of fact with respect to whether defendant-appellant’s duties under the employment agreement were materially changed and whether he was demoted from his managerial status. There are also issues of fact raised with regard to whether defendant-appellant resigned for cause. It is well settled that summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231). Concur — Murphy, P. J., Sullivan, Ross, Williams and Tom, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, New York County (William Davis, J.), entered October 27, 1993, which, inter alia, granted so much of plaintiffs cross-motion as sought summary judgment on its first cause of action for breach of contract against defendant-appellant, unanimously reversed, on the law, and plaintiffs cross-motion with respect to said first cause of action is denied, with costs.

The plaintiff corporation sued the defendant-appellant for, inter alia, breach of an employment agreement, pursuant to which defendant-appellant was employed as "a haircutter and hairstylist and assistant manager” for the term of February 1, 1984 to January 31, 1987. The agreement did not contemplate termination of defendant-appellant’s employment before the end of the stated term. By letter dated August 2, 1985, defendant-appellant terminated his employment with the plaintiff. While the letter itself cites an unspecified breach of a "Shareholders’ Agreement dated February 14, 1984” as the reason for his resignation, at his deposition, defendant-appellant cited other reasons for his resignation, which included intolerable work conditions, a material change in duties and reduction in rank. Defendant-appellant’s statements are supported by the affidavit of another employee hired by the plaintiff to act in a number of capacities including that of manager.

"The law is clear that if an employee is under contract to fill a particular position, any material change in his duties or sig[254]*254nificant reduction in rank may be treated by the employee as a breach of the contract” (Hondares v TSS-Seedman’s Stores, 151 AD2d 411, 413). Here, the evidence raises triable issues of fact with respect to whether defendant-appellant’s duties under the employment agreement were materially changed and whether he was demoted from his managerial status. There are also issues of fact raised with regard to whether defendant-appellant resigned for cause. It is well settled that summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231). Concur — Murphy, P. J., Sullivan, Ross, Williams and Tom, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

222 A.D.2d 253, 635 N.Y.S.2d 23, 1995 N.Y. App. Div. LEXIS 12830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aurielen-lintermans-inc-v-resca-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack