Mordechai Tendler, appellant, v. Bais Knesses of New Hempstead, Inc., etc., respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Mordechai Tendler, appellant, v. Bais Knesses of New Hempstead, Inc., etc., respondent.

2012–08795 (Index No. 2284/06)

Decided: December 26, 2013

PETER B. SKELOS, J.P. RUTH C. BALKIN JOHN M. LEVENTHAL SANDRA L. SGROI, JJ. Neiman & Mairanz, P.C., New York, N.Y. (Marvin Neiman and Theodore T. Mairanz of counsel), for appellant. Goldberg & Rimberg, PLLC, New York, N.Y. (Israel Goldberg, Mindy Kallus, and Steven Weg of counsel), for respondent.

Argued—November 4, 2013

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Rockland County (Alfieri, J.), dated September 10, 2012, as denied his motion for summary judgment on the issue of damages and dismissing the defendant's counterclaims.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This Court previously determined that the defendant, Bais Knesses of New Hempstead, Inc. (hereinafter the Congregation), breached an employment contract with the plaintiff by improperly terminating his employment as its rabbi prior to receiving permission from an authorized Rabbinical Court, as required by the express terms of the contract (see Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500).   Thereafter, the plaintiff moved in Supreme Court for summary judgment on the issue of damages and dismissing the Congregation's counterclaims, which alleged that the plaintiff improperly accessed the Congregation's funds and that he failed to account for his expenditures.   The Congregation cross-moved for summary judgment.   The Supreme Court denied the plaintiff's motion and the Congregation's cross motion.

The damages payable for breach of an employment contract are measured, prima facie, by the wages that would have been paid during the remainder of the contract term (see Cornell v. T.V. Development Corp., 17 N.Y.2d 69, 74;  Rebh v. Lake George Ventures, 241 A.D.2d 801, 803).   This, however, is only the prima facie measure.  “The actual damage is measured by the wage that would be payable during the remainder of the term reduced by the income which the discharged employee has earned, will earn, or could with reasonable diligence earn during the unexpired term” (Hollwedel v. Duffy–Mott Co., 263 N.Y. 95, 101;  see Cornell v. T.V. Development Corp., 17 N.Y.2d at 74).

Here, while the Congregation may be liable for certain damages, it did not forfeit its right to terminate the plaintiff's employment once permission was obtained from an authorized Rabbinical Court (see Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 A.D.2d 636, 639).   Thus, contrary to the plaintiff's contention, he was not entitled to recover damages in the amount equal to the compensation that he would have earned during his expected lifetime.   Instead, as the Supreme Court properly found, the plaintiff was only entitled to recover for damages he sustained between the date of the improper termination of employment and the date that his employment was terminated in accordance with the terms of the employment contract (see De Graffenreidt v Neighborhood Health Ctr. of Provident Clinical Socy., 42 A.D.2d 773).   Furthermore, contrary to the plaintiff's contentions, the Congregation raised triable issues of fact regarding the calculation of the wages that the plaintiff would have earned during this period and regarding mitigation of damages.   Thus, that branch of the plaintiff's motion which was for summary judgment on the issue of damages was properly denied.

Similarly, in opposition to the plaintiff's establishment, prima facie, of his entitlement to judgment as a matter of law dismissing the counterclaims, the Congregation raised triable issues of fact with regard to its claims that the plaintiff improperly accessed the Congregation's funds and that he failed to account for his expenditures.   Thus, that branch of the plaintiff's motion which was for summary judgment dismissing the counterclaims also was properly denied (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

SKELOS, J.P., BALKIN, LEVENTHAL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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