MDS HEALTH GROUP INC CMX v. CARMICHAEL (1999)

 We reject the contention of defendant that his actions, as a matter of law, did not rise to the level of a breach of his duty of loyalty and fidelity under the parties' employment contract (cf., Feiger v. Iral Jewelry, 41 N.Y.2d 928, 394 N.Y.S.2d 626, 363 N.E.2d 350).  The issue was properly submitted to the jury as a question of fact.   We also reject the contention of defendant that Supreme Court abused its discretion in denying his posttrial motion to amend his answer to assert an affirmative defense pursuant to General Obligations Law § 15-108.   That statute applies to tort claims, not to claims for breach of contract (see, Bauman v. Garfinkle, 235 A.D.2d 245, 652 N.Y.S.2d 32).

 The court, however, misconstrued the parties' Long Term Incentive Agreement (LTIA) and erroneously instructed the jury to use 1988 rather than 1987 as the applicable terminal year for determining whether defendant was entitled to a settlement bonus.   The record establishes that defendant's employment was “terminated involuntarily, other than for just and reasonable cause”, prior to the completion of the LTIA, and thus the LTIA's early vesting provisions apply.   Under those provisions, defendant was entitled to a settlement bonus to be paid as follows:  “The terminal year will be the preceding fiscal year, or the then current fiscal year, whichever yields the lowest operating profit”.   Because the 1987 fiscal year would have yielded a lower operating profit than 1988, the court should have instructed the jury to use that year in determining defendant's entitlement to a settlement bonus.   Moreover, because defendant concedes that he would not be entitled to a bonus if that year had been used as the terminal year, there is no evidence in the record to support the judgment in defendant's favor.   Thus, we modify the order and judgment by vacating the award in defendant's favor against plaintiff on defendant's counterclaim for a settlement bonus.

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

MEMORANDUM: