| Plank v Watson Bowman Acme Corp. |
| 2007 NY Slip Op 10200 [46 AD3d 1338] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| W. Andrew Plank, Appellant-Respondent, v Watson BowmanAcme Corporation, Respondent-Appellant. |
—[*1] Connell Foley LLP, Roseland, N.J. (Joseph C. DeBlasio, of the New Jersey bar, admitted prohac vice, of counsel) and Goldberg Segalla LLP, Buffalo, fordefendant-respondent-appellant.
Appeal and cross appeal from an amended order of the Supreme Court, Erie County (EugeneM. Fahey, J.), entered November 8, 2006. The amended order denied defendant's motion forsummary judgment and plaintiff's cross motion for summary judgment.
It is hereby ordered that the amended order so appealed from be and the same hereby isunanimously modified on the law by granting the motion in part and dismissing the complaintand granting defendant partial summary judgment on liability on the counterclaim and asmodified the amended order is affirmed without costs, and the matter is remitted to SupremeCourt, Erie County, for further proceedings in accordance with the following memorandum:Plaintiff commenced this action to recover damages for breach of his employment agreement,alleging that he was "released" from his employment by defendant's parent company, DegussaConstruction Chemicals, Inc. (Degussa), within the first 24 months of his employment. In itsanswer, defendant asserted a counterclaim for repayment of a signing bonus and relocation costsbased on plaintiff's voluntary resignation within the first 24 months of plaintiff's employment.Pursuant to the employment agreement, plaintiff was required to repay a signing bonus andrelocation costs in the event that he voluntarily left Degussa within the first 24 months of hisemployment, and plaintiff was entitled to severance pay and benefits in the event that Degussareleased plaintiff within the first 24 months of his employment. Approximately 14 months afterplaintiff was hired, and following plaintiff's transfer from defendant corporation to anothersubsidiary owned by Degussa, plaintiff tendered his letter of resignation. Defendant moved forsummary judgment dismissing the complaint and for judgment on its counterclaim, for"repayment of the signing bonus and relocation expenses." We conclude that Supreme Courtshould have granted defendant's motion insofar as it sought summary judgment dismissing thecomplaint and partial summary judgment on liability on the counterclaim.
Plaintiff contends that he was constructively terminated when he was transferred to thesubsidiary based on the reduction in his job duties. We reject that contention. Pursuant to theexpress language of the employment agreement, plaintiff was an at-will employee, and Degussa[*2]thus was "entitled to change the terms of the employmentagreement . . . prospectively" (Gebhardt v Time WarnerEntertainment-Advance/Newhouse, 284 AD2d 978, 979 [2001]). We conclude thatdefendant met its burden on that part of the motion seeking summary judgment dismissing thecomplaint by submitting the employment agreement and plaintiff's letter of resignation, andplaintiff failed to raise an issue of fact to defeat the motion (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). We therefore modify the amended orderaccordingly.With respect to that part of the motion seeking judgment on the counterclaim, weconclude that defendant is entitled to partial summary judgment on liability only, inasmuch asdefendant failed to establish as a matter of law the amount of damages to which it is entitled. Wetherefore further modify the amended order accordingly, and we remit the matter to SupremeCourt for an "immediate trial" on the issue of defendant's damages on the counterclaim (CPLR3212 [c]). Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.