Enman v. Person

155 A.D.2d 376

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1989
• Status: Published

Opinion

— Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about November 29, 1988, which, inter alla, denied defendants’ motion pursuant to CPLR 3212 (b) for summary judgment dismissing the complaint or, alternatively pursuant to CPLR 3212 (e), for partial summary judgment as to nonexemplary damages, unanimously affirmed, without costs.

Plaintiff, a certified public accountant, commenced the underlying action against the defendants, his former employers, seeking compensatory damages and an accounting as a result of the defendants’ alleged breach of a five-year employment agreement between the parties, and seeking punitive damages as a result of defendants’ allegedly fraudulent inducement of the plaintiff to enter into the aforesaid agreement.

Summary judgment was precluded by triable issues of fact as to whether plaintiff’s alleged efforts to mitigate damages, by attempting to secure other employment after his discharge, were reasonable, particularly since conflicting affidavits submitted by the parties in the court below drew completely different inferences from the same undisputed facts. (O’Neil v Port Auth., 111 AD2d 375 [2d Dept 1985]; Supan v Michelfeld, 97 AD2d 755 [2d Dept 1983].) Concur — Kupferman, J. P., Milonas, Kassal and Ellerin, JJ.