| JCS Controls, Inc. v Stacey |
| 2008 NY Slip Op 10260 [57 AD3d 1372] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| JCS Controls, Inc., Respondent, v Richard Stacey, Appellant. (AppealNo. 2.) |
—[*1] Woods Oviatt Gilman LLP, Rochester (Greta K. Kolcon of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredOctober 17, 2007. The order, insofar as appealed from, granted plaintiff's motion concerning discoveryand denied in part defendant's cross motion for, inter alia, partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion in part and vacating the third ordering paragraph and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff commenced this action alleging that defendant, its former employee, wasterminated from his employment based on unsatisfactory job performance and that he, inter alia,retained property belonging to plaintiff and used information obtained during his employment, toplaintiff's detriment. Plaintiff moved for, inter alia, summary judgment on the fourth and fifth causes ofaction and, pursuant to its notice of appeal in appeal No. 1, plaintiff appeals from "the portion of theOrder granting defendant . . . summary judgment on [those causes of action] and partialsummary judgment on the First counterclaim." In the fourth cause of action plaintiff sought adetermination that defendant is not an owner of plaintiff corporation and an injunction prohibitingdefendant from "holding himself out to the public as such," and in the fifth cause of action plaintiff soughta determination that defendant is not entitled to further compensation for his services, despite theallegation of defendant that he is so entitled. In his sole counterclaim, defendant sought damages forbreach of contract.
In its decision, Supreme Court noted that defendant sought summary judgment on his behalf in theabsence of a cross motion and that, because those causes of action and the counterclaim were thesubject of a motion by plaintiff that was before the court, the court may properly search the record andgrant summary judgment to defendant with respect thereto (see Dunham v Hilco Constr. Co.,89 NY2d 425, 429-430 [1996]). We affirm.
The record establishes that, pursuant to the employment agreement between the parties datedMarch 31, 1998, defendant would receive "an equity stake in [plaintiff w]orth not less than [*2]5% which will be issued to [defendant] on the anniversary of [his] firstcompleted year with [plaintiff]." The employment agreement also set forth a formula for fixing theamount of annual bonuses. Defendant worked for plaintiff in excess of one year and initially receivedbonuses in accordance with the formula set forth in the employment agreement, but he never receivedan equity stake. The record further establishes that plaintiff ceased paying bonuses to defendant beforeoffering him new terms of employment by letter dated November 4, 2002.
We agree with the court that defendant was an at-will employee inasmuch as there was noagreement establishing a fixed duration of employment (see Matter of De Petris v Union SettlementAssn., 86 NY2d 406, 410 [1995]; Sabetay v Sterling Drug, 69 NY2d 329, 333 [1987]).We further agree with the court, however, that the terms set forth in the March 1998 employmentagreement, which was signed by plaintiff's president, are binding on plaintiff despite defendant's statusas an at-will employee. The employer of an at-will employee is "entitled to change the terms of theemployment agreement only prospectively, subject to [the employee's] right to leave the employment ifthe new terms [are] unacceptable" (Gebhardt v Time WarnerEntertainment-Advance/Newhouse, 284 AD2d 978, 979 [2001]). Here, the terms of the March1998 employment agreement were set forth in a document that expressly states that it is "to act as abinding Employment Agreement." The record thus establishes that defendant sustained "injur[ies]separate and distinct from termination of [his] at-will employment" (Smalley v Dreyfus Corp., 10 NY3d 55, 59 [2008], rearg denied10 NY3d 852 [2008]), i.e., he never received an equity stake, nor was he paid all of the bonusesto which he was entitled, pursuant to the terms of the March 1998 employment agreement.
In appeal No. 2, defendant appeals from an order insofar as it granted plaintiff's motion concerningdiscovery and denied in part his cross motion seeking, inter alia, partial summary judgment dismissingthe second and third causes of action. We conclude that the court properly denied those parts ofdefendant's cross motion with respect to the second and third causes of action. In those causes ofaction plaintiff alleges that defendant violated a confidentiality agreement and misappropriated plaintiff'sproprietary information after leaving plaintiff's employment, but those parts of the cross motion arepremature inasmuch as discovery, including the taking of defendant's deposition, has not beencompleted (see generally Jasco Tools v Rogers, 303 AD2d 944, 946 [2003]).
Defendant further contends that the court erred in granting those parts of plaintiff's motion seekingto depose an out-of-state, nonparty witness and seeking the appointment of plaintiff's attorney ascommissioner to take the deposition. Although we conclude that the court did not abuse its discretion inpermitting plaintiff to depose that nonparty witness (see generally Pauzar v Children's Hosp. ofBuffalo, 167 AD2d 933 [1990]), we agree with defendant that the court erred in appointingplaintiff's attorney as commissioner to take the deposition. CPLR 3113 (a) expressly provides inrelevant part that the deposition of an out-of-state person may not be taken before "an attorney. . . for a party," and we therefore modify the order in appeal No. 2 accordingly.
Finally, we conclude that the court properly denied that part of defendant's cross motion seeking to"clarify" a prior order from which no appeal was taken. Present—Scudder, P.J., Hurlbutt, Lunn,Green and Gorski, JJ.