DeMaio v Cohen

[*1] DeMaio v Cohen 2009 NY Slip Op 52540(U) [25 Misc 3d 1241(A)] Decided on November 25, 2009 Civil Court Of The City Of New York, Richmond County Levine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 25, 2009
Civil Court of the City of New York, Richmond County

Gina DeMaio, Claimant,

against

Mitchell Cohen, Defendants.



Gina DeMaio, Claimant,

against

Annjo McManus Defendants.



SCR 1425-08



ATTORNEY FOR DEFENDANTS:

LAWRENCE BECKENSTEIN, ESQ.

320 EAST 65th STREET

NEW YORK, NEW YORK 10021

SUITE 619

ATTORNEY FOR PLAINTIFF:

GINA DEMAIO

3 TRINITY PLACE

STATEN ISLAND, NY. 10310

APT. No. 3

Katherine A. Levine, J.

Claimant Gina DeMaio (" claimant" or "DeMaio") commenced this action to recover $5000 from defendant Annjo McManus ( "McManus") and defendant Mitchell Cohen ("Cohen") ( sometimes collectively referred to as "defendants") based upon Cohen's breach of an oral employment contract, and McManus' tortious interference with said contract, that resulted [*2]in plaintiff not being paid wages due and owed to her. Specifically, DeMaio claims that Mitchell Cohen hired her to do filing and to clean his apartment from August 4, 2008 through December 2008.[FN1] She claims she was paid $20 an hour and worked six days a week at $120 a day. She asserts that Cohen breached the oral contract and terminated her on September 7, 2008 because defendant McManus physically attacked her. Plaintiff filed an incident report with the 10th precinct against McManus.

Cohen did not dispute that he entered into an oral contract with plaintiff but disputes the amount of time that she worked at his home; he claims that Demaio only worked eight to 10 days doing paper work for him and cleaning for McManus, who is his friend. Cohen acknowledges that there was an "incident' in early September 2008 between DeMaio and McManus which started as a verbal fight and ended up in Demaio getting injured. After this fight, Cohen could not let her come back because of McManus' reaction. He claims that McManus attempted to get Demaio arrested. Cohen contends that claimant was an at will employee and that the Statute of Frauds precludes her from recovering wages.

Defendant is not entitled to dismissal of this action based upon the Statute of Frauds. General Obligations Law §5-701(a) has consistently been interpreted "to encompass contracts which, by their terms, have absolutely no possibility in fact and law of full performance within one year." D & N Boening v. Kirsch Beverages, 63 NY2d 449, 454 (1984); Air Masters v. Bob Mims Hearing and Air Conditioning Services, 300 AD2d 513 (2d Dept. 2002). Here, claimant alleges that the contract of employment was for approximately five months, way short of the one year bar to the enforcement of oral contracts.

Defendant also avers that plaintiff is not entitled to payment because she was an at will employee. It is well settled in New York that "absent an agreement establishing a fixed duration, an employment relationship is presumed to be hiring at will, terminable at any time by either party." Sabetay v. Sterling Drug, 69 NY2d 329, 333 (1987). See, Rooney v. Tyson, 91 NY2d 685, 689 (1998); Mtr. of De Petris v Union Settlement Assn., 86 NY2d 406, 410 (1995);Martin v New York Life Ins. Co. 148 NY 117 (1895) (employment for an indefinite or unspecified term is at will and may be freely terminated by either party at any time without cause or notice). The at will presumption will therefore not be triggered where an employment agreement states a definite duration of employment. Rooney v.Tyson, supra at 690. "Only when we discern no term of some definiteness or no express limitation does the analysis switch over to the rebuttable presumption line of cases." Id.

As a general rule, "a contract of employment for a definite term may not be lawfully terminated by the employer prior to the expiration date in the absence of just cause." William Rothenburg. V. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1020-21 ( 2d Cir. 1985); Alpern v. Hurwitz, 644 F.2d 943, 945 ( 2d Cir. 1981 )(applying New York law). Two exceptions have [*3]ben carved out from this principle permitting either party to terminate the contract at will: 1) where an employment relationship depends upon a "close confidential relationship, such as between an attorney and client or an individual and his personal servant;" see e.g. Martin v. Camp, 219 NY 170 (1916) (attorney-client); Brill v. Brenner, 62 Misc 2d 102 (Civ. Ct. 1970) (personal servant); and 2) where the contract provided unequivocally that the employer could terminate the contract without cause but was thereupon obligated to pay a penalty to the employee: see, e.g. Olsen v. Arabian American Oil Co., 194 F.2d 477, 478 (2d Cir. 1952); Reiss v. Arabian American Oil Co., 279 A.D. 805 (2d Dept. 1952). Rothenberg, supra at 1021.Only the first exception applies to the instant matter.

Although defendant Cohen disputes the amount of times that the claimant worked for him, he does not dispute that the parties entered into an oral contract of employment for a fixed duration. Nor does Cohen claim that he had just cause to terminate the claimant. Therefore, Cohen could not terminate DeMaio's employment until the end of the fixed term of employment on or about December 2008 unless she fell into the category of personal servant. In Brill, the exception applied where defendant hired plaintiff to be her live-in constant companion-housekeeper-chauffeur for seven days a week at $ 150 a week. The Brill court noted the paucity of cases on whether a defendant could, with impunity, terminate a servant at any time, due in all probability to the "wisdom of this position" which resulted in a lack of litigation. Id at 104. However, the court emphasized that in order for the personal servant - employer relationship, to be successful, it had to be "marked by some degree of mutual confidence and satisfaction." Id. The court cited to an early English decision where the court noted that "enormous mischief could be done" where a domestic servant, valet, coachman or cook could "destroy the comfort of a man's existence...by compelling him to have constantly about him in a confidential situation one to whom he objects." Johnson v. Shrewsbury & Birmingham Ry. Co., 3 DeG.M. & G.914, 926 (1853).

Here, plaintiff apparently cleaned the house and did some filing and then left for the day. The immediacy and confidentiality of the relationship contemplated by this exception does not appear to be present in the instant matter. Furthermore, it was Cohen, not McManus, who hired DeMaio and he apparently did not have any problem in having DeMaio work in his home. Therefore, he personally had no right to breach the oral contract. In light of the above, the exception does not apply.

Plaintiff failed to submit any proof as to how much she was paid. While she claims she made $720 per week by working six days per week, Cohen claims that she worked approximately 10 days during a one month period from August 4th through September 7th ($1200) or approximately five twelfths of the days that plaintiff claims she works. In the absence of physical proof of payment, the court awards plaintiff $3600 which represents the amount Cohen implicitly agrees plaintiff would have earned had she worked another three months for the duration of the contract until December 2008. The court also awards $50 to plaintiff pursuant to Labor Law §198 "for expenses which may be taxed as costs." [*4]

As set forth previously, plaintiff has failed to state a cause of action for tortious interference with contract against defendant McManus. In Guard - Life Corp. V. Parker Hardware Mfg. Corp., 50 NY2d 183 (1980), the Court of Appeals adopted the definitions and analysis contained in the Restatement (Second) of Torts regarding the interference with contract tort Section 766 of the Restatement says:"One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract."

The Court of Appeals recognized that the word "improperly" is the "keystone of the definition. 50 NY2d at 190.

In order to prevail on her claim that defendant McManus tortiously interfered with her contract of employment with Cohen, plaintiff must show (1) the existence of a valid contract between herself and a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional inducement of the third party to breach that contract, and (4) damages . Murray v. Sysco Corp., 273 AD2d 760, 761 (3d Dept. 2000). See, Gill Farms v Darrow, 256 AD2d 995, 997 (3rd Dept. 1998). Here, plaintiff has failed to offer any evidence as to McManus' reason for getting into a physical altercation with her. In fact, the record is bereft as to the frequency of McManus' visits to Cohen's house, when McManus first appeared in Cohen's house, or the cause of the fight between plaintiff and McManus. As such, plaintiff failed to prove that McManus intentionally induced Cohen to breach his contract with plaintiff and hence failed to state a cause of action for tortious interference with an employment contract.

The foregoing constitutes the decision and order of the court.

Dated: November 25, 2009

KATHERINE A. LEVINE

Judge, Civil Court [*5] Footnotes

Footnote 1: As will be detailed below, the court sua sponte dismisses the case against McManus since DeMaio failed to prove that McManus' tortiously interfered with the contract between claimant and Cohen.