Murtha v. Yonkers Child Care Ass'n

• Decision Date: 02 April 1979
• Parties: Vincent K. MURTHA, Respondent, v. YONKERS CHILD CARE ASSOCIATION, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 52

415 N.Y.S.2d 52

69 A.D.2d 813

Vincent K. MURTHA, Respondent, v. YONKERS CHILD CARE ASSOCIATION, Appellant, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

April 2, 1979.

Before MOLLEN, P. J., and TITONE, RABIN and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages predicated on theories of breach of contract and conspiracy to interfere with that contract, the appeal is from a judgment of the Supreme Court, Westchester County, dated August 26, 1976, which is in favor of the plaintiff and against the defendants.

By order dated November 21, 1977, this court reversed the judgment, of the law, and dismissed the complaint (Murtha v. Yonkers Child Care Ass'n, 59 A.D.2d 925, 399 N.Y.S.2d 260). On October 24, 1978 the Court of Appeals modified the order of this court by reversing so much thereof as dismissed the first cause of action, which was against the Yonkers Child Care Association, and remitted the case to this court for consideration of the facts with respect to that cause of action (45 N.Y.2d 913, 411 N.Y.S.2d 219, 383 N.E.2d 865).

Judgment reversed insofar as it is against defendant Yonkers Child Care Association, on the facts, and, as between plaintiff and said defendant, action severed and new trial granted, with costs to abide the event.

In our opinion, a retrial of the first cause of action is warranted due to the apparent confusion of the jury in reaching the verdict.

Moreover, in our opinion, the verdict on the first cause of action was against the weight of the evidence. On the record before us, there was insufficient evidence to support the jury's finding that plaintiff had been wrongfully removed.

Rather, the credible testimony suggests that he was removed from his position of employment with the association because of dissatisfaction with its performance. There was testimony by plaintiff's superiors that he was not doing a good job due to his frequent absences from the center. Also, it was felt that plaintiff, who was doing consulting work for the Urban Development Corporation (UDC) while engaged as the full-time director of the center, was engaged in a conflict of interest. When questioned about his relationship with the UDC, plaintiff was evasive in his answers.

Accordingly, there should be a new trial on the first cause of action.

TITONE, RABIN and MARGETT, JJ., concur.

MOLLEN, Presiding Justice, dissents and votes to affirm the judgment insofar as it is against defendant Yonkers Child Care Association, Inc., with the following memorandum:

In an action by an employee for breach of an employment contract, the plaintiff is merely required to plead and prove the existence of the contract, its terms, the fact of his discharge prior to term and his damages as a result of the discharge (Felsen v. Sol. Cafe Mfg. Corp., 24 N.Y.2d 682,...