SALERNO v. LEICA INC (1999)

 Following his termination from defendant's employ, plaintiff commenced this action to recover salary, bonuses, vacation pay and severance benefits allegedly owed to him based upon express and implied agreements between the parties.   Supreme Court properly denied without prejudice defendant's cross motion for summary judgment dismissing the complaint.   The court properly determined that the express agreement that plaintiff would receive “a severance package commensurate with [his] level of contribution and position in [defendant's] organization” is sufficiently definite to be enforceable (see, Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91, 571 N.Y.S.2d 686, 575 N.E.2d 104;  Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482-483, 548 N.Y.S.2d 920, 548 N.E.2d 203, rearg. denied 75 N.Y.2d 863, 552 N.Y.S.2d 925, 552 N.E.2d 173, cert. denied 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33;  Henri Assocs. v. Saxony Carpet Co., 249 A.D.2d 63, 671 N.Y.S.2d 46;  Catlin v. Manilow, 170 A.D.2d 357, 357-358, 566 N.Y.S.2d 59).   Defendant failed to meet its burden of establishing that it did not breach that agreement or that the remaining causes of action have no merit (see, CPLR 3212[b] ).

 The court erred, however, in granting plaintiff's motion for partial summary judgment dismissing the third affirmative defense, alleging that plaintiff has failed to state a cause of action for breach of contract.  “Such a ‘defense’ is mere surplusage which serves no purpose in an answer, belonging more properly in a motion to dismiss under CPLR 3211(a)(7)” (Tache-Haddad Enters. v. Melohn, 224 A.D.2d 213, 214, 637 N.Y.S.2d 396).   Nevertheless, although its inclusion in the answer is inappropriate, it should not be subject to a motion seeking dismissal of the defense or “provide a basis to test the sufficiency of the complaint” (Riland v. Todman & Co., 56 A.D.2d 350, 353, 393 N.Y.S.2d 4;  see also, Platt v. Portnoy, 220 A.D.2d 652, 653, 632 N.Y.S.2d 659).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: