Candela v Byron Chem. Co., Inc.

2008 NY Slip Op 06543 [54 AD3d 306]

August 5, 2008

Appellate Division, Second Department

As corrected through Wednesday, September 24, 2008

Laura Candela, Respondent, v Byron Chemical Company,Inc., Appellant, et al., Defendant.

—[*1]Saul Ewing, LLP, New York, N.Y. (Timothy E. Hoeffner of counsel), and PhillipsNizer, LLP, New York, N.Y. (Michael S. Fischman of counsel), for appellant (one brief filed).

Nixon Peabody, LLP, Jericho, N.Y. (David H. Tennant of counsel), for respondent.

In an action, inter alia, to recover damages for breach of an employment contract and for ajudgment declaring that paragraph 6 (a) of the employment contract between the plaintiff and thedefendant Byron Chemical Company, Inc., required that defendant to pay the plaintiff annualbonus payments equal to 10% of its gross profits, the defendant Byron Chemical Company, Inc.,appeals, as limited by its brief, from so much of a judgment of the Supreme Court, NassauCounty (Warshawsky, J.), dated October 12, 2006, as, after a nonjury trial, is in favor of theplaintiff and against it in the principal sum of $4,006,279.

Ordered that the judgment is modified, on the law, by adding a provision thereto declaringthat paragraph 6 (a) of the employment contract between the plaintiff and the defendant ByronChemical Company, Inc., required that defendant to pay the plaintiff annual bonus paymentsequal to 10% of its gross profits; as so modified, the judgment is affirmed insofar as appealedfrom, with costs to the plaintiff.

Upon review of a determination rendered after a nonjury trial, this Court's authority "is asbroad as that of the trial court," and this Court may "render the judgment it finds warranted by thefacts, taking into account in a close case the fact that the trial judge had the advantage of seeingthe witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983] [citations and internal quotation marks omitted]; see Yonkers Contr. Co., Inc. v RomanoEnters. of N.Y., Inc., 40 AD3d 629 [2007]). There is no basis to disturb the SupremeCourt's determination in this case that paragraph 6 (a) of the employment contract between theplaintiff and the defendant Byron Chemical Company, Inc. (hereinafter Byron), required Byron topay the plaintiff annual bonus payments equal to 10% of its gross profits (as opposed to netprofits).

Byron's remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, the Supreme Court, Nassau County,should have included in the judgment appealed from an appropriate declaration in favor of theplaintiff (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371US 74 [1962], cert denied 371 US 901 [1962]). Mastro, J.P., Florio, Miller andDickerson, JJ., concur.