Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, Inc.

• Decision Date: 24 April 2000
• Citation: 271 A.D.2d 636,706 N.Y.S.2d 724
• Court: New York Supreme Court — Appellate Division
• Parties: DAVID DELVECCHIO, Respondent,<BR>v.<BR>BAYSIDE CHRYSLER PLYMOUTH JEEP EAGLE, INC., et al., Appellants.

271 A.D.2d 636

706 N.Y.S.2d 724

DAVID DELVECCHIO, Respondent,

v.BAYSIDE CHRYSLER PLYMOUTH JEEP EAGLE, INC., et al., Appellants.

Decided April 24, 2000.

Santucci, J. P., Joy, Sullivan and Altman, JJ., concur.

Ordered that the appeals by the defendant John Zanetti are dismissed, without costs or disbursements, as he is not aggrieved by the portions of the orders and judgment appealed from; and it is further,

Ordered that the appeal by the defendants Bayside Chrysler Plymouth Jeep Eagle, Inc., Northern Boulevard Dodge, Inc., and Tri State Auto Mall, Inc., from the order dated May 7, 1999, is dismissed, without costs or disbursements; and it is further,

Ordered that the judgment is reversed, on the law, without costs or disbursements, those branches of the plaintiff's motion which were for summary judgment on the second cause of action asserted against the defendants Bayside Chrysler Plymouth Jeep Eagle, Inc., Northern Boulevard Dodge, Inc., and Tri State Auto Mall, Inc., and to dismiss the fifth and sixth affirmative defenses to that cause of action are denied, the fifth and sixth affirmative defenses are reinstated, and the order dated May 7, 1999, is modified accordingly; and it is further,

Ordered that the order dated November 1, 1999, is affirmed insofar as appealed from by the defendants Bayside Chrysler Plymouth Jeep Eagle, Inc., Northern Boulevard Dodge, Inc., and Tri State Auto Mall, Inc., without costs or disbursements.

The appeal by the defendants Bayside Chrysler Plymouth Jeep Eagle, Inc., Northern Boulevard Dodge, Inc., and Tri State Auto Mall, Inc. (hereinafter the corporate defendants), from the intermediate order dated May 7, 1999, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the corporate defendants from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

On January 17, 1996, the plaintiff entered into a written five-year employment contract with the corporate defendants, to be their Director of Used Car Operations. The contract gave the corporate defendants the right to terminate the agreement for cause upon at least five days written notice. "Cause" was defined, among other things, as theft, misuse of company assets, commission of a felony or a crime involving moral turpitude, and poor performance. The contract also contained a separate "Bilateral Termination" clause permitting either party to terminate the contract without consent, subject to the payment of $250,000 in liquidated damages.

The corporate defendants terminated the plaintiff's employment on January 9, 1997, without providing written notice. The plaintiff subsequently commenced this action against the corporate defendants and their principal, John Zanetti. In his second cause of action, the only cause of action at issue on this appeal, the plaintiff sought to recover liquidated damages from the corporate defendants pursuant to the "Bilateral Termination" clause of the contract. As a fifth affirmative defense, the defendants alleged that the plaintiff had failed to mitigate his damages and, as a sixth affirmative defense, that he was terminated for cause.

Upon the plaintiff's motion and the defendants' cross motion, the Supreme Court, inter alia, granted the plaintiff summary judgment on his second cause of action against the corporate defendants, dismissed the fifth and sixth affirmative defenses, and denied that branch of the defendants' cross motion which was for summary judgment dismissing the second cause of action. The court dismissed the remaining causes of action. A judgment was subsequently entered in favor of the plaintiff and against the corporate defendants in the principal sum of $250,000. The defendants then moved, inter alia, for leave to renew and the court denied that branch of their motion.

While the court incorrectly...