Classman v. Lear Publishing, Inc.

Appellate Division of the Supreme Court of New York

Classman v. Lear Publishing, Inc.

221 A.D.2d 180, 633 N.Y.S.2d 299

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

DecidedNovember 9, 1995

StatusPublished

This text of 221 A.D.2d 180 (Classman v. Lear Publishing, Inc.) 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

Classman v. Lear Publishing, Inc., 221 A.D.2d 180, 633 N.Y.S.2d 299 (N.Y. Ct. App. 1995).

Pincite

Opinion

—Order, Supreme Court, New York County (Walter Schackman, J.), entered January 20, 1995, after a nonjury trial, finding for the defendant and dismissing the complaint, unanimously affirmed, without costs.

[181]*181Plaintiff was employed by defendant pursuant to a letter agreement under which plaintiff was to receive a salary raise after four months, "[a]ssuming the initial period of employment goes well.” Plaintiff contended at trial that he was to receive the raise automatically if he were still employed after four months, while defendant interpreted the language to mean that plaintiff would receive a raise only if the magazine became profitable. This factual question was determined by the trial court in defendant’s favor after considering the context in which the words were used, the relations of the parties and the surrounding circumstances (see, Bray Terms, v Grand Union Co., 74 AD2d 965, 966). We cannot say that the court’s construction was against the weight of the evidence. The court found that soon after the four months of plaintiff’s employment had expired, he met with defendant’s founder and editor-in-chief to discuss the proposed salary increase. Plaintiff was then given the option of leaving with a full severance package, or staying on at his original salary, and he elected to stay. The court’s finding of waiver is supported by the circumstance that plaintiff did not raise the salary increase issue again until his employment was terminated two years later. We note, as did the Trial Justice, that plaintiff’s severance package was calculated on the basis of plaintiff’s starting salary, not the proposed increased salary. "A waiver * * * may be accomplished by express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage.” (Hadden v Consolidated Edison Co., 45 NY2d 466, 469.) Concur—Rosenberger, J. P., Rubin, Kupferman and Williams, JJ.

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

—Order, Supreme Court, New York County (Walter Schackman, J.), entered January 20, 1995, after a nonjury trial, finding for the defendant and dismissing the complaint, unanimously affirmed, without costs.

[181]*181Plaintiff was employed by defendant pursuant to a letter agreement under which plaintiff was to receive a salary raise after four months, "[a]ssuming the initial period of employment goes well.” Plaintiff contended at trial that he was to receive the raise automatically if he were still employed after four months, while defendant interpreted the language to mean that plaintiff would receive a raise only if the magazine became profitable. This factual question was determined by the trial court in defendant’s favor after considering the context in which the words were used, the relations of the parties and the surrounding circumstances (see, Bray Terms, v Grand Union Co., 74 AD2d 965, 966). We cannot say that the court’s construction was against the weight of the evidence. The court found that soon after the four months of plaintiff’s employment had expired, he met with defendant’s founder and editor-in-chief to discuss the proposed salary increase. Plaintiff was then given the option of leaving with a full severance package, or staying on at his original salary, and he elected to stay. The court’s finding of waiver is supported by the circumstance that plaintiff did not raise the salary increase issue again until his employment was terminated two years later. We note, as did the Trial Justice, that plaintiff’s severance package was calculated on the basis of plaintiff’s starting salary, not the proposed increased salary. "A waiver * * * may be accomplished by express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage.” (Hadden v Consolidated Edison Co., 45 NY2d 466, 469.) Concur—Rosenberger, J. P., Rubin, Kupferman and Williams, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

221 A.D.2d 180, 633 N.Y.S.2d 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/classman-v-lear-publishing-inc-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack