Opinion
570516/05.
Decided December 13, 2005.
Defendant Manej purports to appeal from a decision of the Civil Court, New York County (Saliann Scarpulla, J.), dated August 13, 2004, which, after a nonjury trial, awarded plaintiff a recovery of damages in the principal sum of $11,000.
Judgment (Saliann Scarpulla, J.), entered March 24, 2005, affirmed, with $25 costs. Appeal from decision (Saliann Scarpulla, J.), dated August 13, 2004, dismissed, without costs, as nonappealable.
PRESENT: Suarez, P.J., Davis, Schoenfeld, JJ.
Even though no appeal was noticed from the judgment, CPLR 5520(c) authorizes us to deem an appeal to be taken from a subsequent judgment whose relief is identical to that granted in the paper from which the appeal has been noticed ( see Gutman v. Savas, 17 AD3d 278).
Plaintiff was hired by defendant, a legal recruitment firm, as a recruiter. Under the terms of the parties' employment agreement, which was drafted by defendant, plaintiff would earn commissions "upon placements during [her] employment." In April 2001, plaintiff introduced an attorney to a law firm that was scheduled to open a new office in September 2001. It is undisputed that the law firm hired that attorney, and that he continued in that employment for at least 90 days. On August 20, 2001, defendant billed the law firm for its fee, which was paid, but plaintiff, who had left her employment in June, never received her commission.
The ambiguous language of plaintiff's employment agreement was a matter for resolution by the trier of facts ( see Yudell v. Israel Assoc., 248 AD2d 189). The trial court's resolution of the issue in plaintiff's favor, against the drafting party, was supported by a fair interpretation of the evidence, which included defendant's acknowledgment of plaintiff's role in this placement by identifying her on the invoice as the "Recruiter," and should not be disturbed on appeal ( see generally Rasmussen v. Yellow River, 298 AD2d 322, 323). Had the parties intended, as defendant now maintains, that a placement fee would be earned only upon the actual employment of an individual referred by plaintiff, they had only to say so unambiguously ( compare Affinity Exec. Search v. Lecroy Corp., 278 AD2d 187). The burden was on the defendant, as the drafter of the employment agreement, to so specify, and its failure to do so must not operate to the plaintiff's detriment.
This constitutes the decision and order of the Court.