Robert Half of New York v. Levine-Baratto Associates, Inc.

• Court: New York City Court
• Writing for the Court: ROBERT D. LIPPMANN
• Citation: Robert Half of New York v. Levine-Baratto Associates, Inc., 481 N.Y.S.2d 597, 126 Misc.2d 169 (N.Y. City Ct. 1984)
• Decision Date: 17 October 1984
• Docket Number: LEVINE-BARATTO
• Parties: ROBERT HALF OF NEW YORK, Plaintiff, v.ASSOCIATES, INC., & Thomaston Publications, Inc., Defendant.

Page 597

481 N.Y.S.2d 597

126 Misc.2d 169

ROBERT HALF OF NEW YORK, Plaintiff, v. LEVINE-BARATTO ASSOCIATES, INC., & Thomaston Publications Inc., Defendant.

Civil Court of the City of New York New York County.

Oct. 17, 1984.

Peirez, Ackerman & Levine, Great Neck (Paul H. Pincus, Great Neck, of counsel), for plaintiff.

Feltman, Karesh & Major, New York City (Donald F. Schneider, New York City, of counsel), for defendants.

ROBERT D. LIPPMANN, Judge.

After a trial held on July 10, 1984, the court granted the parties leave to submit memoranda of law. Through inadvertence, we proceeded to a decision before the parties had an opportunity to fully complete their exchange and submit their papers to us. As a result, law relevant to the outcome of the case was not brought to our attention. Upon a reconsideration of the facts in the light of the applicable law, we recall our decision of July 27, 1984 wherein we erroneously held that a guarantee period is an essential term of an employment agency/employer contract.

The undisputed facts are as follows: Plaintiff, a placement agency (Agency) was requested by defendant/employer to refer to it suitable applicants to fill the position of assistant comptroller. From those referred by the Agency, defendant hired an applicant at a yearly salary of $25,000. The agreed upon fee was 25% of the successful applicant's salary, that is, $6,250, the sum sued for herein. After 44 days, the employee failed to report to work.

The dispute centers around the guarantee period, that is, the period during which the employee may resign or be discharged, without the employer incurring liability for payment of a fee to the Agency. The Agency claims the guarantee period was 30 days. Defendant, on the other hand, claims a 90 day period, a time period which parallels its company's own internal probationary period, at the expiration of which an employee acquires permanent status. This policy was orally communicated to the Agency. The Agency, in response, remained silent and defendant relied upon the silence as a sign of agreement.

The court views defendants' communication as nothing more than a factual statement of its own policy regarding its own employees, who are mere third parties with respect to the agreement between the Agency and the employer. The communication was not offered as a proposal or counteroffer to extend the guarantee provision between the employer and the Agency. Moreover, the Agency's silence cannot be relied upon as an acceptance by the employer.

Thus, the dispute is not whether the guarantee period is 30 or 90 days, but rather whether there was agreement on a 30 day period or, for failure to agree on 30 days, no guarantee period at all.

However, since the employee's departure occurred after 30 days, whether there was no guarantee period or a 30 day guarantee period, the employer remains liable for payment of the placement fee, unless it can be said that the guarantee period is so essential a term of the contract that failure to agree thereon results in the failure of formation of an enforceable contract.

General Business Law, Section 185(1) allows for free contractual agreement between licensed employment agencies and employers in those circumstances where, as here, the employer, rather than the employee, pays the placement fee. Winston Personnel Agency v. Abcon Inds., 108 Misc.2d 695, 438 N.Y.S.2d 669 (Civil Ct., N.Y.Co.1980); Hunt Personnel v. Hemingway Transport, 105 Misc.2d 626, 432 N.Y.S.2d 585 (Civil Ct., N....