Digital Connection, LLC v. Sin

16 A.D.3d 118, 792 N.Y.S.2d 382, 2005 N.Y. App. Div. LEXIS 2085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2005
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered December 8, 2003, after a nonjury trial, in an action by an employer against its former employee for breach of the duty of loyalty, insofar as appealed from as limited by the briefs, awarding plaintiff $50,000, plus interest, costs and disbursements, and dismissing defendant’s counterclaim for unpaid bonuses, unanimously modified, on the law, to vacate the $50,000 award in plaintiffs favor and dismiss the complaint, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

No fair interpretation of the evidence supports the trial court’s finding that plaintiff sustained $50,000 in damages as a result of defendant’s going to work for plaintiffs client, a bank to which plaintiff sent defendant to work as a computer programmer. At best, the record shows that defendant engaged in secret discussions with the bank, and ultimately accepted in-house employment with it for a period of two or three months, without informing plaintiff and before plaintiff learned of the employment from other sources. While plaintiffs president did testify that plaintiff presently has only “a very modest contract” with the bank, some $230,000 less than before, none of plaintiffs contracts with the bank were put into evidence, and there is no evidence that would support the $50,000 awarded by the trial court or any other reasonably certain calculation of damages. The trial court correctly dismissed defendant’s counterclaim for unpaid bonuses upon a record showing that the bonuses were discretionary. Concur—Mazzarelli, J.E, Sullivan, Williams, Gonzalez and Catterson, JJ.