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Latimi v Metropolitan Transp. Auth. (2007 NY Slip Op 52011(U))
[*1]


Decided on October 9, 2007
Civil Court of the City of New York, Kings County

80217/06
Plaintiff was represented by Bert Taras, 65 Hunt Drive, Jericho, NY 11753, 800.479.7340
Defendant was represented by Francine Menaker, AGC, 130 Livingston Street, Room 1210, Brooklyn, NY 11201-5190, 718.694.3891
Genine D. Edwards, J.
Plaintiff commenced this breach of contract action based upon a written employment contract to provide paralegal services to the MTA. It is clear that plaintiff is a consultant, and not an actual employee of the MTA.
file:///C|/Users/Peter/Desktop/NY/2/2007_52011.htm[4/21/2013 10:56:32 PM] Latimi v Metropolitan Transp. Auth. (2007 NY Slip Op 52011(U))
The contract provides as follows:
"This Retainer Agreement shall be effective on August 1, 2005 and shall stay in effect until termination by either party in accordance with Article Seventh below. Seventh: The parties hereto agree that this Retainer Agreement may be cancelled by either party upon ten (10) days written notice. "
At trial, although the MTA offered detailed evidence regarding plaintiff's performance, the issue is whether the MTA breached the contract by failing to provide the requisite ten-day written notice of termination. Plaintiff testified unequivocally that while in a meeting with MTA representatives, she was told to pack her belongings and leave. The MTA witness verified plaintiff's testimony, and did not provide one scintilla of evidence regarding the rendering of the termination notice.
It is well established that if a definite term is not set for employment, then it is at-will, irrespective of the fact that a salary is determined on a weekly, monthly or yearly basis. Exchange Bakery & Restaurant, Inc. v. Rifkin, 245 NY 260 (1927); Lipka v. Walker, 69 NYS2d 686 {188 Misc 44} (2nd Dept. 1946); Amelotte v. The Jacob Dold Packing Co., 17 NYS2d 929 {173 Misc 477} (Sup. Ct. Erie County 1940); O'Connor v. Harbrew Imports, Ltd., 798 NYS2d 346 {4 Misc 3d 1016(A)} (Sup. Ct. New York County 2004); Cartwright v. The Golub Corp., 381 NYS2d 901 {51 AD2d 407} (3rd Dept. 1976). However, an at-will employment can be subject to an express limitation regarding termination, including notice requirements. Weiner v. McGraw-Hill, Inc., 57 NY2d 458 (1982); Murphy v. American Home Products Corp., 58 NY2d 293 (1983); O'Connor v. Eastman Kodak Co., 65 NY2d 724 (1985); Sabetay v. Sterling Drug, Inc. , 69 NY2d 329 (1987); Vardi v. The Mutual Life Ins. Co. of New York, 523 NYS2d 95 {136 AD2d 453} (1st Dept. 1988). In this instance, the parties' right to terminate is subject to the [*2]ten-day notice provision. The MTA failed to comply with that express limitation; therefore it is liable for breaching the contract.
Plaintiff seeks damages in the amount of $6500.00, which she calculates as six months of being unable to attain employment. However, the highest Court of this State determined that the proper measure of damages is an award equal to the notice provision in the contract, to wit, ten days wages. Watson v. Russell, 149 NY 388 (1896); Barth v. The Addie Co. Inc., 271 NY 31 (1936). Also, Bitterman v. Gluck, 9 NYS2d 1007 (1st Dept. 1939); Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, Inc., 706 NYS2d 724 {271 AD2d 636} (2nd Dept. 2000); Bogy v. Berlage, 38 NYS2d 584 (1st Dept. 1942). See, Denniston v. Taylor, 2004 WL 226147 (S.D.NY 2004); Holt
file:///C|/Users/Peter/Desktop/NY/2/2007_52011.htm[4/21/2013 10:56:32 PM]
Latimi v Metropolitan Transp. Auth. (2007 NY Slip Op 52011(U))
v. Seversky Electronatom Corp., 452 F.2d 31 (2nd Cir. 1971).
Accordingly, judgment is granted in favor of the plaintiff in the amount of $1015.00 as well as costs
and interest commencing from October 7, 2005.
This constitutes the decision and order of this Court.
October 9, 2007_____________________________Genine D. Edwards


J.C.C.
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