Opinion
2013-04-30
Moshe STEINMETZ, Plaintiff–Respondent, v. SAMUEL–ROZENBAUM USA, INC., Defendant–Appellant.
Ofeck & Heinze, LLP, New York (Mark F. Heinze of counsel), for appellant. The Catafago Law Firm, P.C., New York (Jacques Catafago of counsel), for respondent.
Ofeck & Heinze, LLP, New York (Mark F. Heinze of counsel), for appellant. The Catafago Law Firm, P.C., New York (Jacques Catafago of counsel), for respondent.
ACOSTA, J.P., MOSKOWITZ, RENWICK, FREEDMAN, CLARK, JJ.
Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered September 23, 2010, after a nonjury trial, awarding plaintiff $130,000 plus interest in the amount of $23,880.82, and costs and disbursements in the amount of $1,025.00, unanimously modified, on the facts, to reduce the principal amount of the award from $130,000 to $75,000, and to remand the matter for the calculation of interest, and otherwise affirmed, without costs.
The trial court properly allowed plaintiff to substitute a correct copy of the contract at issue from the court file for a poorly photocopied copy, since plaintiff promptly authenticated the correct copy ( see Matter of Khatibi v. Weill, 8 A.D.3d 485, 778 N.Y.S.2d 511 [2d Dept. 2004] ).
There is no basis for disturbing the court's finding, which rested largely on credibility determinations, that the purported November 2005 agreement was not genuine ( see Nagel v. Nagel, 85 A.D.3d 559, 926 N.Y.S.2d 413 [1st Dept. 2011] ). The document is riddled with anomalies (the court said it looked “cut and pasted”), and plaintiff testified that he had never signed it.
The contract stated that plaintiff could be fired only for cause during the first two years of the three-year employment term, and thereafter for any reason upon 30 days' notice. Plaintiff was terminated approximately nine months into the contract term. Thus, his damages equal his lost wages from that date until the end of the two-year period, plus one month for notice, or 15 months ( see Bogy v. Berlage, 265 App.Div. 249, 38 N.Y.S.2d 584 [1st Dept. 1942]; Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, 271 A.D.2d 636, 638–639, 706 N.Y.S.2d 724 [2d Dept. 2000] ). Based on the record evidence of plaintiff's net monthly salary, the amount of his lost wages for 15 months is $75,000.