Opinion
156 CA 20-00194
06-11-2021
Laureen BURKE, M.D., Plaintiff-Appellant, v. WOMEN GYNECOLOGY AND CHILDBIRTH ASSOCIATES, P.C., Defendant-Respondent.
HARTER SECREST & EMERY LLP, ROCHESTER (JEFFREY A. WADSWORTH OF COUNSEL), FOR PLAINTIFF-APPELLANT. MCCONVILLE, CONSIDINE, COOMAN & MORIN, P.C., ROCHESTER (PETER J. WEISHAAR OF COUNSEL), FOR DEFENDANT-RESPONDENT.
HARTER SECREST & EMERY LLP, ROCHESTER (JEFFREY A. WADSWORTH OF COUNSEL), FOR PLAINTIFF-APPELLANT.
MCCONVILLE, CONSIDINE, COOMAN & MORIN, P.C., ROCHESTER (PETER J. WEISHAAR OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging, inter alia, that defendant breached the terms of her employment agreement with defendant. As relevant on appeal, plaintiff asserted several causes of action for breach of contract based on defendant's alleged failure to pay her full base compensation for various years pursuant to the compensation schedule set forth in the employment agreement (first cause of action), to pay her for ultrasound work she performed pursuant to a 2010 ultrasound compensation agreement (third cause of action), to pay her post-termination compensation pursuant to the employment agreement (fourth cause of action), and to pay her attorney's fees and expenses pursuant to the employment agreement (fifth cause of action). Plaintiff appeals from a judgment entered after a bench trial that, inter alia, dismissed her amended complaint. Our scope of review in this determination after a nonjury trial is as broad as that of the trial court (see 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 [1983] ; Howard v. Pooler , 184 A.D.3d 1160, 1163, 126 N.Y.S.3d 824 [4th Dept. 2020] ; Cianchetti v. Burgio , 145 A.D.3d 1539, 1540, 44 N.Y.S.3d 293 [4th Dept. 2016], lv denied 29 N.Y.3d 908, 2017 WL 2367333 [2017] ). It is well settled, however, that the decision of a court following a nonjury trial should not be disturbed on appeal "unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" ( Thoreson v. Penthouse Intl. , 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992], rearg denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [1993] [internal quotation marks omitted]). Moreover, when conducting such a review, we must view the record "in the light most favorable to sustain the judgment" ( Farace v. State of New York , 266 A.D.2d 870, 871, 698 N.Y.S.2d 376 [4th Dept. 1999] ; see A&M Global Mgt. Corp. v. Northtown Urology Assoc., P.C. , 115 A.D.3d 1283, 1286, 983 N.Y.S.2d 368 [4th Dept. 2014] ).
Initially, we note that inasmuch as plaintiff raised in her appellate brief contentions concerning only the four causes of action identified above, she abandoned any contentions with respect to the other causes of action (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We reject plaintiff's contention that the decision of Supreme Court dismissing the first, third, fourth and fifth causes of action is not supported by a fair interpretation of the evidence.
With respect to the first cause of action, the parties’ employment agreement provided that defendant reserved the right to change the base compensation percentages set forth in the compensation schedule as required to pay its overhead costs, and the other evidence at trial established that defendant exercised that right. Thus, we conclude that there is a fair view of the evidence that supports the court's determination that defendant did not breach the employment agreement by failing to pay plaintiff in accordance with the base compensation schedule during the period from 2006 to 2009 (see generally Cianchetti , 145 A.D.3d at 1540-1541, 44 N.Y.S.3d 293 ; Suprunchik v. Viti , 139 A.D.3d 1389, 1389-1390, 31 N.Y.S.3d 727 [4th Dept. 2016] ).
We further conclude that plaintiff failed to establish that defendant breached the employment agreement by not paying her the required base compensation for the period after 2010. The evidence at trial established that, starting in 2010, plaintiff agreed to take flat salary draws. While plaintiff's expert testified at trial that plaintiff was owed additional base compensation for 2011 and 2012 pursuant to the compensation schedule in the employment agreement, that compensation schedule had been abandoned in 2010 (see generally Estate of Kingston v. Kingston Farms Partnership , 130 A.D.3d 1464, 1465, 13 N.Y.S.3d 748 [4th Dept. 2015] ) and thus did not establish the basis for any compensation owed to plaintiff thereafter. Further, records admitted at trial demonstrate that plaintiff was overpaid for her base compensation in 2011 and 2012 as a result of her monthly salary draws using the compensation formula eventually implemented by defendant. Therefore, a fair interpretation of the evidence also supports the court's determination that defendant did not breach the employment agreement by failing to pay plaintiff her full base compensation in 2011 and 2012 (see generally Cianchetti , 145 A.D.3d at 1541, 44 N.Y.S.3d 293 ; Wenger v. Alidad , 265 A.D.2d 322, 323, 696 N.Y.S.2d 227 [2d Dept. 1999], lv denied 94 N.Y.2d 758, 705 N.Y.S.2d 5, 726 N.E.2d 482 [2000] ).
With respect to the third cause of action, plaintiff's expert conceded that plaintiff was not owed anything under the 2010 ultrasound compensation agreement, and thus there is a fair view of the evidence supporting the court's determination that the ultrasound compensation agreement was not breached (see generally Hetelekides v. County of Ontario , 193 A.D.3d 1414, 1417, 147 N.Y.S.3d 811 [4th Dept. 2021] ).
Regarding the fourth cause of action, while both parties agree that plaintiff was not paid post-termination compensation pursuant to the employment agreement, a fair interpretation of the evidence supports the court's determination that plaintiff failed to establish her entitlement to the post-termination compensation (see Wenger , 265 A.D.2d at 323, 696 N.Y.S.2d 227 ; see generally Berley Indus. v. City of New York , 45 N.Y.2d 683, 686-687, 412 N.Y.S.2d 589, 385 N.E.2d 281 [1978] ). Notably, plaintiff relied upon her base compensation schedule, which was no longer in effect when she left the practice, and she did not request that her expert provide an opinion on damages related to unpaid post-termination compensation. Plaintiff's alternative damages calculation was offered for the first time on appeal and is therefore not properly before us (see Ciesinski , 202 A.D.2d at 985, 609 N.Y.S.2d 745 ; see also Blue Heron Constr. Co., LLC v. Village of Nunda , 63 A.D.3d 1694, 1696, 881 N.Y.S.2d 573 [4th Dept. 2009] ).
Finally, with respect to the fifth cause of action, plaintiff is not entitled to attorneys’ fees and costs (cf. LG Funding, LLC v. Johnson & Son Locksmith, Inc. , 170 A.D.3d 1153, 1154, 96 N.Y.S.3d 640 [2d Dept. 2019] ; see generally Hooper Assoc. v. AGS Computers , 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ).