Opinion
CA 03-02393.
Decided April 30, 2004.
Appeal from an order of the Supreme Court, Onondaga County (Charles T. Major, J.), entered January 27, 2003. The order denied plaintiff's motion for summary judgment in a breach of contract action.
HANCOCK ESTABROOK, LLP, SYRACUSE (MARK J. SCHULTE OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GREEN SEIFTER, ATTORNEYS, PLLC, SYRACUSE (LAWRENCE M. ORDWAY, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: PINE, J.P., HURLBUTT, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Plaintiff commenced this action against defendant, its former employee, alleging breach of an employment contract. In his answer, defendant denied any breach of contract on his part and counterclaimed for damages for plaintiff's alleged breach of contract in wrongfully terminating him. Plaintiff appeals from an order denying its motion for summary judgment on its complaint and for dismissal of defendant's counterclaims.
Supreme Court properly denied plaintiff's motion. There are triable issues of fact concerning whether defendant misrepresented that he was not employed elsewhere and whether he violated his contractual covenants of honesty, loyalty and best efforts, as well as his covenant not to compete ( see Stalis v. Sugar Creek Stores, 295 A.D.2d 939, 941-942; Dec v. Auburn Enlarged School Dist., 249 A.D.2d 907, 909; Tri-Delta Aggregates v. Chautauqua County, 237 A.D.2d 880, 881; Velardi v. Lerman, 203 A.D.2d 929). It is for the trier of fact to determine whether plaintiff's termination of defendant's employment was for a reason other than plaintiff's genuine dissatisfaction with defendant's performance under the contract ( see LoCascio v. James W. Aquavella, M.D., P.C., 206 A.D.2d 96, 101, citing Golden v. Worldvision Enters., 133 A.D.2d 50, lv denied 71 N.Y.2d 804; Hortis v. Madison Golf Club, 92 A.D.2d 713, 714; Fursmidt v. Hotel Abbey Holding Corp., 10 A.D.2d 447).