Winston Personnel Agency, Inc. v. Abcon Industries, Inc.

• Court: New York City Court
• Writing for the Court: BEVERLY COHEN
• Citation: Winston Personnel Agency, Inc. v. Abcon Industries, Inc., 438 N.Y.S.2d 669, 108 Misc.2d 695 (N.Y. City Ct. 1980)
• Decision Date: 25 September 1980
• Parties: WINSTON PERSONNEL AGENCY, INC., Plaintiff, v. ABCON INDUSTRIES, INC., Defendant. WINSTON PERSONNEL AGENCY, INC., Plaintiff, v. ABCON INDUSTRIES, INC., Defendant.

Page 669

438 N.Y.S.2d 669

108 Misc.2d 695

WINSTON PERSONNEL AGENCY, INC., Plaintiff, v. ABCON INDUSTRIES, INC., Defendant.

WINSTON PERSONNEL AGENCY, INC., Plaintiff, v. ABCON INDUSTRIES, INC., Defendant.

Civil Court of the City of New York,

New York County,

Trial Term, Part 4.

Sept. 25, 1980.

Frechtman & Klarreich, P. C., New York City, for plaintiff.

Brookman & Brookman, New York City, for defendant.

BEVERLY COHEN, Judge:

Two actions between plaintiff and defendant have been tried together.

Plaintiff, an employment agency, is suing to recover in each action for a fee it claims pursuant to an alleged agreement with defendant to pay such fee.

In the first case plaintiff claims to have referred one Howard Fuchs, at defendant's request, to fill a position as a unit manager of a restaurant. The job order submitted in evidence by plaintiff, prepared by Mr. Van Dekker an employee of plaintiff, lists the company requesting a referral as Abcon Industries. This information could only have been obtained from the person giving the job description. Defendant's witness, Mr. Zenobio, testified that he was president of both defendant and MZ Industries Inc. and that it is MZ Industries Inc. which owns the restaurant which hired Mr. Fuchs. Be that as it may, there is no dispute that Mr. Wedl, an officer of Abcon Industries, Inc. having no connection with MZ Industries, interviewed Mr. Fuchs and conducted negotiations with plaintiff.

Plaintiff, after discussing Mr. Fuchs' employment with Mr. Wedl entered into discussions as to the amount of the fee. It is not disputed that plaintiff mailed a copy of its fee schedule to defendant and both Mr. Zenobio and Mr. Wedl testified that they received and read the schedule.

Both sides agree, too, that the parties agreed that the fee for placement of Mr. Fuchs would be $5000 rather than the $6750 which would be due according to the printed schedule.

The parties disagree as to a further term of the agreement. Both Mr. Zenobio and Mr. Wedl testified that the parties agreed that no fee would be due if the employee did not remain 30 days and if he remained less than 90 days the fee would be pro-rated.

Defendant has not sustained its burden of showing that the written fee schedule was modified by an oral agreement. The plaintiff, by Ms. Adamo, and Mr. Van Dekker, after sending the invoice on Mr. Fuchs, called defendant several times to follow-up the non-payment. Neither Mr. Zenobio nor Mr. Wedl ever made any objection to the invoices either orally or in writing. Mr. Wedl testified that when he was called by plaintiff about payment he replied that he would look into the status of the invoice. That is not the response to be expected from one who claims to have an agreement not consistent with the invoice. This is especially true since the witness testified that the call from Ms. Adamo may have occurred after the termination of Mr. Fuchs. At such a point Mr. Wedl would certainly have been expected to refer to the claimed 90-day limitation period.

Plaintiff is entitled to recover from defendant on case Index #...