Kausal v. Educ. Prods. Info. Exch. Inst.

• Decision Date: 17 April 2013
• Citation: 964 N.Y.S.2d 550,105 A.D.3d 909,2013 N.Y. Slip Op. 02545
• Parties: Nikhil KAUSAL, appellant, v. EDUCATIONAL PRODUCTS INFORMATION EXCHANGE INSTITUTE, doing business as EPIE Institute, respondent.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 909

964 N.Y.S.2d 550

2013 N.Y. Slip Op. 02545

Nikhil KAUSAL, appellant,

v.EDUCATIONAL PRODUCTS INFORMATION EXCHANGE INSTITUTE, doing business as EPIE Institute, respondent.

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

April 17, 2013.

David M. Lira, Garden City, N.Y., for appellant.

Reynold A. Mauro, Commack, N.Y., for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action to recover damages for breach of an employment contract and a violation of Labor Law article 6, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Driscoll, J.), entered May 19, 2011, which, upon a decision of the same court dated April 7, 2011, made after a nonjury trial, is in favor of the defendant and against him dismissing the complaint.

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, the plaintiff is awarded judgment on the issue of liability, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages and the entry of an appropriate amended judgment thereafter.

The plaintiff commenced this action against the defendant to recover damages for breach of an employment contract and a violation of Labor Law article 6. During the nonjury trial of this action, the plaintiff testified that, prior to being employed by the defendant as an information technology programmer, and while enrolled as a student at New York Institute of Technology (hereinafter NYIT), he was approached by Jerald Cole, one of his former professors at NYIT and the defendant's project manager, about employment with the defendant. The plaintiff, a citizen of India, informed Cole that, in order for him to accept the proffered employment, he would need to be sponsored for an H1B work visa by the defendant, which would entail the filing of an H1B petition by the defendant, in its capacity as the employer.

The plaintiff further testified at trial that he introduced Cole to his attorney, who discussed the visa sponsorship process with Cole, including the minimum salary standard required by the United States Department of Labor which, at the time, was $46,500 per year. The plaintiff also testified that, in the plaintiff's presence at the attorney's office, Cole, on behalf of the defendant, signed the required documentation, which provided that the plaintiff was to be paid the minimum salary requirement of $46,500 plus, inter alia, tuition benefits for his enrollment in a master's degree program in computer science at the University of Bridgeport. The plaintiff testified that he was not paid in accordance with that agreement.

The documentary evidence demonstrated that, in 2000, the defendant petitioned the Immigration and Naturalization Service of the United States Department of Justice on the plaintiff's behalf for an H1B work visa. The visa application recited that the plaintiff was to be employed by the defendant from October 1, 2000, through October 1, 2003, and that the plaintiff was to be paid $46,500 per year for this full-time position, in addition to “tuition remission + usual benefits.” Cole, as project manager for the defendant, signed sections of the application, under the penalty of perjury, certifying that the information in the visa application was “true and correct,” and that he was “empowered to” file the petition on behalf of the defendant. Cole signed a consent for an attorney to prepare the petition. The plaintiff did not sign any of the visa documents.

At the conclusion of the nonjury trial, the trial court found in favor of the defendant and against the plaintiff, and dismissed the complaint.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “warranted by the facts,” bearing in mind that the trial judge had the advantage of seeing the witnesses and hearing the testimony ( Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;see Quadrozzi v. Estate of Quadrozzi, 99 A.D.3d 688, 691, 952 N.Y.S.2d 74;Evans–Freke v. Showcase Contr. Corp., 85 A.D.3d 961, 963, 926 N.Y.S.2d 140;Fernandez v. Price, 63 A.D.3d 672, 675, 880 N.Y.S.2d 169).

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of the contract, and resulting damages ( see Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 A.D.3d 122, 127, 921 N.Y.S.2d 329;Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d 260;JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 A.D.3d 802, 803, 893 N.Y.S.2d 237;Furia v. Furia, 116 A.D.2d 694, 695, 498 N.Y.S.2d 12). “The elements of an effective employment contract consist of ‘the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary’ ” ( Durso v. Baisch, 37 A.D.3d 646, 647, 830 N.Y.S.2d 327, quoting Merschrod v. Cornell Univ., 139 A.D.2d 802, 805, 527 N.Y.S.2d 109). Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds “a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged” ( Durso v. Baisch, 37 A.D.3d at 647, 830 N.Y.S.2d 327 [internal quotation marks omitted]; seeGeneral Obligations Law § 5–701[a]; Devany v. Brockway Dev., LLC, 72 A.D.3d 1008, 1009, 900 N.Y.S.2d 329).

Here, the record does not support the trial court's determination that the plaintiff failed to show his entitlement to recover damages from the defendant on his claim alleging breach of contract. The plaintiff established the existence of an enforceable written employment agreement between himself and the defendant through the visa application executed by Cole, on behalf of the defendant, under oath. The agreement referred to in the visa...