Masterwear Corporation v. Bernard
| Decision Date | 22 October 2002 |
| Court | New York Supreme Court — Appellate Division |
| Parties | MASTERWEAR CORPORATION et al., Respondents,<BR>v.<BR>NORMAN BERNARD, Appellant, et al., Defendants. |
In this action by a corporation seeking to recover allegedly excessive compensation and other payments received by its former executives, the motion court properly found that, in opposition to plaintiffs' prima facie showing that he had received compensation above that permitted by his employment agreement, defendant Bernard failed to raise an issue of fact since he failed to show how each of the checks he submitted corresponded to his claimed loan repayments, and failed to rebut plaintiffs' assertion that they did not consider any of the alleged repayment amounts in calculating the amount of excess compensation taken. He similarly failed to rebut plaintiffs' assertion that two bonuses, which were awarded prior to the execution of the employment agreement but were to be paid in installments while it was in effect, also were not included in plaintiffs' calculations of excess compensation.
The motion court properly found that Bernard's counterclaims were not inextricably intertwined with plaintiffs' claim and did not preclude an award of summary judgment in plaintiffs' favor, since, although Bernard's claimed entitlements emanated from the same employment agreement as plaintiffs' claim on which summary judgment was granted, the agreement's provisions are divisible and the claims arose from independent sets of facts (see Scavenger, Inc. v GT Interactive Software, 273 AD2d 60, lv denied 96 NY2d 701; cf. Yoi-Lee Realty Corp. v 177th St. Realty Assoc., 208 AD2d 185, 189-190). We perceive no basis to disturb the findings of the Special Referee with respect to the amount to be awarded plaintiffs.
However, execution of the judgment should have been stayed in view of the viability of Bernard's counterclaims and the possibility of financial prejudice as a result of plaintiffs' bankruptcy (see Alec Peters Assoc. v Roberts, 249 AD2d 219), and we modify accordingly.
Bernard's motion to compel disclosure of codefendant Mushkin's settlement agreement should have been granted. Although the settling parties agreed that their settlement would be confidential, Bernard has a strong interest in disclosure since it is undisputed both that plaintiffs' claims against him seek recoupment of improper payments allegedly made to Mushkin and that the settlement agreement...
To continue reading
Request your trial
-
Polsky v. 145 Hudson St. Assocs. L.P., Index No. 107108/2011
...(1st Dep't 2009); American Re-Ins. Co. v. United States Fid. & Guar. Co., 19 A.D.3d 103, 104 (1st Dep't 2005); Masterwear Corp. v. Bernard, 298 A.D.2d 249, 250 (1st Dep't 2002). Moreover, since defendants claim damages from plaintiffs' breach of their alteration agreement with the Board of ......
-
Agai v. Mihalatos, Index No.: 4089/09
...and arises from independent sets of facts thus requiring severance from the instant motion. See Masterwear Corporation v. Bernard, 298 A.D.2d 249, 750 N.Y.S.2d 5 (1st Dept 2002). However, it appears that there is a special relationship between the two parties which raises a question of fact......
-
City of Newburgh v. Hauser
...Fid. & Guar. Co., 19 A.D.3d 103, 796 N.Y.S.2d 89 ; Masterwear Corp. v. Bernard, 3 A.D.3d 305, 771 N.Y.S.2d 72 ; Masterwear Corp. v. Bernard, 298 A.D.2d 249, 750 N.Y.S.2d 5 ).Contrary to the plaintiff's contention, CPLR 4547 does not bar disclosure of the subject documents, as that statute i......
-
Henderson v. Stryker Corporation, 2009 NY Slip Op 30786(U) (N.Y. Sup. Ct. 4/3/2009)
...nonsettling defendants] and [their] counsel or by such other manner as Supreme Court directs.' Mahoney, supra at 436, citing Masterwear Corp., supra at 250-51. Because the lower court was not provided with the settlement agreement, the First Department noted that it was unable to determine ......