Ransom v Spacc

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[*1] Ransom v Spacc 2017 NY Slip Op 27224 Decided on April 28, 2017 City Court Of Jamestown, Chautauqua County Larson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 28, 2017
City Court of Jamestown, Chautauqua County

Regina Ransom, Plaintiff,


Larry Spacc Jr., a/k/a Lawrence G. Spacciapolli, d/b/a Larry Spacc GMC, Defendant.

Frederick A. Larson, J.


What may be a question of first impression, is whether an advertisement for employment, responded to by a person who is in fact hired, and in the absence of any other agreement as to the terms of employment, results in the complete terms of employment.

The credible testimony at the hearing revealed that the Defendant, a used car dealer headquartered in Dunkirk, NY, opened a used car lot in Olean, NY. The Defendant thereafter placed an advertisement seeking an "Auto Sales Finance Manager" for its used car sales business in Olean. The advertisement stated the following:

High volume used car dealership in Olean, NY is looking to hire an experienced finance manager. Individual must be able to sell all products as well as handle all prime and sub-prime deals. Candidate must have at least one year of auto dealership finance experience or currently be a peak-performing salesperson. Must have excellent working knowledge of computers, professional appearance, utmost ethics, and a squeaky clean background. Our dealership will produce peak sales and we will expect nothing less from you. Please respond to this ad, as we are looking to fill this position immediately. Top pay, health benefits including insurance, car allowance, gas allowance, vacation, bonuses, as well as other perks and amenities.

Job Type: Full Time

Salary: $90,000/year

Required Education: High School or equivalent

The Plaintiff responded to the advertisement, and stated that she would take the job. The Defendant hired her, and the Plaintiff immediately began working for the Defendant. At the end of a two week period, the Plaintiff inquired about the status of her paycheck for the November 18, 2016 to December 3, 2016 pay period. As of December 9, 2016, the Defendant had not tendered any payment to the Plaintiff for her two weeks of employment. The plaintiff declined to accept any terms of employment that did not conform to the advertisement and Plaintiff thereafter terminated the employment.

Larry Spacc Jr., on behalf of the defendant, testified at the hearing that a $90,000 salary [*2]was never intended. The defendant suggested in his testimony that a salary, roughly equivalent to the New York State mandated minimum wage with the added possibility of commission was envisioned. No evidence of a written employment contract was offered at the hearing. No credible evidence of any discussion of the modification of the published salary offer was presented at the hearing. The Court is well aware that the Plaintiff was an "employee at will". The Defendant, however, did not attempt to change the terms of employment set forth in the advertisement until after the Plaintiff completed her two weeks of employment.


A hearing was held in Small Claims court. Pursuant to New York State Law UCCA §1802 the court is to provide litigants with a simple, informal, and inexpensive procedure for the prompt determination of claims. The court is to conduct hearings upon small claims in such manner as to do substantial justice between the parties without being bound by statutory provisions or rules of practice, procedure, pleading, or evidence The court is however bound to act in accordance with the rules and principles of substantive law. See, Stavrou v. Wells Fargo Bank, N.A., 2016 NY Misc. LEXIS 644; 2016 NY Slip Op 30336(U) citing Williams v Roper, 269 AD2d 125, 126, 703 N.Y.S.2d 77, 79 (1st Dept 2000); UCCA §1804; see also, Milsner v. McGahon, 20 Misc 3d 127(A), 866 N.Y.S.2d 93, 2008 NY Slip Op 51268(U), 2008 WL 2522307 (App. Term. 9th & 10th Judicial Districts); Basler v. M & S Masonry & Construction, Inc., 21 Misc 3d 137(A), 873 N.Y.S.2d 509, 2008 NY Slip Op 52295(U), 2008 WL 4916105 (App. Term, 9th & 10th Judicial Districts).

The Court, as the trier of fact in Small Claims Hearings makes credibility determinations regarding the testimony of the parties and the evidence presented. The trial court has the opportunity to hear witnesses and observe their demeanor during testimony and to weigh the evidence. Stavrou v. Wells Fargo Bank, N.A., supra.

The court is bound to render a substantially just decision that comports with the substantive law of contracts. In order for the Plaintiff to prevail on cause of action for breach of contract, the Plaintiff must prove 1) the existence of a contract, 2) the Plaintiff's performance under the contract, 3) the Defendant's breach of the contract, and 4) resulting damages. See, Stavrou v. Wells Fargo Bank, N.A., 2016 NY Misc. LEXIS 644; 2016 NY Slip Op 30336(U) (citing Hampshire Properties v. BTA Bldg. and Developing, Inc., 122 AD3d 573, 996 N.Y.S.2d 129 [2d Dept. 2014]); see also Vision China Media, Inc. v. Shareholder Representative Services, LLC, 109 AD3d 49, 58, 967 N.Y.S.2d 338 [1st Dept. 2013]; New York State Worker's Compensation Bd.v. SGRisk, LLC, 116 AD3d 1148, 1153, 983 N.Y.S.2d 642 [3d Dept. 2014].

The key question before this court is whether there is a binding contract. This court must determine whether 1) the Defendant made an offer of employment at a salary of $90,000 annually, and 2) whether the Defendant's hiring of the plaintiff and the plaintiff's performance in working for the Defendant for two weeks constituted an acceptance of that offer and created a binding contract.

An advertisement may or may not constitute an offer the acceptance of which will consummate a contract. See generally, Graves v. Northern NY Pub. Co. 260 A.D. 900; 22 N.Y.S.2d 537; (Fourth Dept. 1940) The issue turns on the particular facts and circumstances of each case. It is quite possible to make a definite and operative offer by advertisement. However, it is not customary to do this and the presumption is the other way. See, Restatement (Second) of [*3]Contracts § 26 cmt. b (1979).

There is a very narrow and limited exception to this rule, but it is rarely applied and only in exceptional circumstances where the advertisement clearly communicates an offer that is definite, explicit and leaves nothing open for negotiation. Trell v. Am. Ass'n of the Advancement of Science, 2007 U.S. Dist. LEXIS 36942, 36 Media L. Rep. 1025 (W.D.NY May 18, 2007). See also, Zanakis-Pico v. Cutter Dodge, Inc., 98 Haw. 309, 324, 47 P.3d 1222, 1237 (Haw. 2002); Chang v. First Colonial Sav. Bank, 242 Va. 388, 391, 410 S.E.2d 928, 8 Va. Law Rep. 1324 (Va. 1991); Ziglin v. Players MH, L.P., 36 S.W.3d 786, 789 (Mo. Ct. App. 2001); Osage Homestead, Inc. v. Sutphin, 657 S.W.2d 346, 352 (Mo. Ct. App. 1983). An advertisement may be construed as an offer where the words used indicate that an offer was intended. The courts have emphasized the importance of the definiteness or certainty of the wording of an advertisement as a factor, holding generally that clarity, definiteness, and completeness supported the construction that the advertisement was an offer. In that circumstance, it constitutes an offer, acceptance of which will complete the contract. See, Muhr v. Kalmanson,124 Misc. 514; 208 N.Y.S. 447.

Here the advertised offer of employment, although concise, was definite in its terms with the promises and performances to be rendered by each party being reasonably certain. Where an advertisement describes the offer with its material terms the courts have deemed the advertisement sufficiently definite and certain to constitute an offer the acceptance of which would consummate a contract. An advertisement of a salary of $90,000 is definite, explicit, and leaves nothing open for negotiation. In order to ensure that substantial justice is served, the Court will award the Plaintiff $3,462, based on two weeks of employment at a $90,000 annual salary.


Therefore, based on the aforementioned legal analysis, and assessing the facts pursuant to New York State Law UCCA §1802, requiring the Court to render a decision that is substantially just, the Court finds in favor of the Plaintiff in the amount of $3,462, plus court costs.

Dated: April 28, 2017

Jamestown, New York

Hon. Frederick A. Larson

City Court Judge