Opinion
13256 Index No. 651664/18 Case No. 2020-03288
03-04-2021
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York (Robert M. Tucker of counsel), for appellant-respondent. Law Office of Barry R. Fertel, New Rochelle (Barry R. Fertel of counsel), for respondent-appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York (Robert M. Tucker of counsel), for appellant-respondent.
Law Office of Barry R. Fertel, New Rochelle (Barry R. Fertel of counsel), for respondent-appellant.
Kern, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about April 24, 2020, which, to the extent appealed from, denied the parties’ respective motions for summary judgment, unanimously affirmed, without costs.
We find the contractual provision governing severance ambiguous, since, when compared to the same language elsewhere in the contract, it could reasonably refer to plaintiff specifically or to the position for which he was hired more generally (see State of New York v. R.J. Reynolds Tobacco Co., 304 A.D.2d 379, 380, 761 N.Y.S.2d 596 [1st Dept. 2003], lv denied 100 N.Y.2d 510, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003], citing Finest Invs. v. Security Trust Co. of Rochester, 96 A.D.2d 227, 230, 468 N.Y.S.2d 256 [4th Dept. 1983], affd 61 N.Y.2d 897, 474 N.Y.S.2d 481, 462 N.E.2d 1199 [1984] ). Defendant's reference to the dictionary definition of "role" is unavailing, as the listed synonyms include "position," defendant admits that these terms are sometimes used interchangeably, and defendant previously did so when informing plaintiff that the contractual severance payment was not applicable (see Merriam–Webster Online Dictionary, role [https://www.merriam-webster.com/dictionary/role]; cf. Bianco v. Bianco, 36 A.D.3d 490, 491, 830 N.Y.S.2d 21 [1st Dept. 2007] [reference to dictionary is common to determine "plain meaning"]). As such, the provision is "subject to more than one or conflicting reasonable interpretations, ... requiring a trial on the parties’ intent" ( Berkeley Research Group, LLC v. FTI Consulting, Inc., 157 A.D.3d 486, 489, 69 N.Y.S.3d 26 [1st Dept. 2018] ).
Summary judgment to plaintiff is also not warranted, as there are triable issues of fact concerning whether his position was completely eliminated. Even though defendant delayed in seeking a replacement and assigned plaintiff's responsibilities to other executives for more than 18 months, the job search was nonetheless ongoing (compare Fifth Ave. Exec. Staffing v. Virtual Communities, Inc., 2002 N.Y. Slip Op. 50082[U], *3, 2002 WL 398512 [App. Term, 1st Dept. 2002] [finding consolidation of responsibilities, when workers laid off, to be elimination of positions]).