ROSS v. JITNEY DISTRIBUTING FOOD COMPANY LTD (1999)

In an action to recover damages for breach of an employment agreement, the plaintiffs appeal from so much of an order of the Supreme Court, Orange County (Green, J.H.O.), dated October 6, 1997, as, after a nonjury trial, failed to award them damages for the value of certain employment benefits which were denied to them and awarded the defendant Jitney Distributing Food Company, Ltd. the sum of $1,712 on its second counterclaim to recover the unpaid balances of loans it made to the plaintiffs.

ORDERED that the order is modified, on the facts, by deleting the provision thereof awarding the defendant Jitney Distributing Food Company, Ltd., the sum of $1,712 on its counterclaim and substituting therefor a provision awarding the plaintiffs the sum of $1,850;  as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

 Contrary to the plaintiffs' contention, the record demonstrates that the Judicial Hearing Officer properly awarded each plaintiff the agreed salary of $1,200 per week for the 17 weeks at issue.   This award, which came to a total of $40,800 for both of the plaintiffs, is supported by the evidence in the record and actually exceeds the amount of unpaid salary which the plaintiffs sought to recover at trial.   We discern no error in the Judicial Hearing Officer's failure to make an award for the value of various employment benefits which the plaintiffs were denied following their discharge.   While the employment agreement unconditionally guaranteed the payment of salary to the plaintiffs for a specific duration, no similar guarantee existed regarding the continued payment of expenses for health insurance, tolls and gas, automobile lease payments, and insurance.   Therefore, the Judicial Hearing Officer's failure to make an award with regard to these items is supported by the language of the parties' agreement.

 However, the Judicial Hearing Officer's calculation of the amount of damages owed to the plaintiffs following mitigation is inaccurate.   The earnings statements submitted in evidence demonstrated that each plaintiff earned or could have earned the sum of $19,856.10 from the date of discharge on August 21, 1995, through December 31, 1995.   Accordingly, each plaintiff earned an average weekly salary of $1,045 during that 19-week period.   When the $155 difference between the guaranteed salary of $1,200 per week and the mitigating salary of $1,045 per week is multiplied by the 15 weeks between the August 21 discharge date and November 30, 1995 (the date upon which the guaranteed salary payments were to end), the amount to which each plaintiff is entitled is $2,325, for a total of $4,650 for both plaintiffs.   When the award of $2,800 on the defendants' second counterclaim is set off against this amount, the plaintiffs are entitled to a total damages award of $1,850.   Thus, we have modified the order accordingly.

MEMORANDUM BY THE COURT.