Opinion
13129-04.
Decided July 28, 2006.
Counsel for Plaintiff The Law Office of Steven Cohn, P.C. Carle Place, New York.
Counsel for Defendant Ryan, Brennan Donnelly, LLP Floral Park, New York.
ORDER
Plaintiff moves pursuant to CPLR 3212 for summary judgment on the first, second, third and fourth causes of action of the amended verified complaint.
BACKGROUND
Plaintiff previously moved for summary judgment on his third cause of action. By decision and order dated August 16, 2005, the motion was denied. At that time, Plaintiff had not yet been deposed. Accordingly, this Court gave Defendant the opportunity to conduct further discovery. This Court further determined that, in any event, Plaintiff could not recover on the theory of quantum meruit. In the interest of efficiency and completeness, this Court incorporates herein its order dated August 16, 2005.
In the amended verified complaint, Plaintiff alleges five causes of action. He now seeks summary judgment on four of them. In the first cause of action, Plaintiff seeks damages of $441,193 for accumulated vacation days, sick days, personal days and compensatory and bonus time. Such sum is sought in accordance with the Village of Hempstead and Defendant's policy upon termination of employment. In the second cause of action, Plaintiff seeks damages of $286,000 for unused vacation, sick, personal, birthday and accrued compensatory time pursuant to his Consulting Agreement. On this motion, Plaintiff has apparently recalculated his alleged accrued benefits. He now seeks damages of $437,902.29, on both the first and second causes of action. In the third and fourth causes of action, respectively, Plaintiff seeks $81,000 for services rendered, and reimbursement for attorneys fees and court costs, pursuant to the Consulting Agreement.
DISCUSSION
Summary judgment is the procedural equivalent of a trial. Capelin Assoc. Inc. v. Globe Mfg. Corp., 34 NY2d 338 (1974). It is a drastic remedy that will only be granted when the proponent establishes that there are no triable issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). On a motion for summary judgment the court should refrain from making credibility determinations. Capelin Assoc. Inc. v. Globe Mfg. Corp., supra.
A. First Cause of Action
Plaintiff has submitted Defendant's resolution dated December 18, 1990 which became effective November 5, 1990. Pursuant to that resolution, his permanent appointment as Commissioner of Community Development, and his entitlement to 20-paid vacation days per year, were authorized. Plaintiff has also submitted a Resolution Establishing Personnel Policies of Defendant dated April 1, 2003 ("2003 Resolution"). Pursuant to the 2003 Resolution, vacation days, sick days and personal days for Defendant's "Executive Staff" are established. Payment for accrued vacation time and sick leave upon termination is authorized thereunder.
Plaintiff has also submitted the minutes of Defendant's meetings in 1998, 1999, 2001, and 2002, authorizing Plaintiff to "carryover vacation days." In addition Plaintiff has submitted a summary of his hours as prepared by Defendant's comptroller, Gwen Willis. The summary shows alleged "accumulated earned days" and "used days." The legal basis for the first cause of action is "Village and CDA policy" (Amended complaint, ¶¶ 6, 7).
In general, a public employee whose employment has terminated may not recover the monetary value of unused vacation and sick time in the absence of statutory or contractual authority. Garrigan v. Incorporated Village of Malverne, 12 AD3d 400 (2nd Dept. 2004); Kerlikowske v. City of Buffalo, 305 AD2d 997 (4th Dept. 2003); and Grishman v. City of New York, 183 AD2d 464 (1st Dept.), lv. app. den. 80 NY2d 760 (1992). General Municipal Law § 92 authorizes the governing board of a municipality to grant, by local law, ordinance or resolution, vacation and sick leaves, as well as to provide for cash payment of the monetary value of accumulated and unused vacation time.
Here, the 2003 Resolution by Defendant's Board expressly provided, that upon termination of the Commissioner, as a member of the executive staff, Plaintiff was entitled to payment for accrued vacation, and sick leave up to 165 days. Under these circumstances, the Court deems the complaint to include the 2003 Resolution as the legal basis for Plaintiff's first cause of action. As a result, Plaintiff has presented a prima facie case of liability of Defendant on Plaintiff's first cause of action for accumulated vacation and sick leave days before his resignation.
In opposition, Defendant has failed to present any evidence whatsoever, by a person with knowledge of the facts (CPLR 3212[b]), on the specific issue of the authority, or lack thereof, for Plaintiff's claim for accumulated vacation and sick days. Under these circumstances, Plaintiff is entitled to summary judgment on the issue of liability on his first cause of action for some accumulated days before his resignation.
However there are large gaps in Plaintiff's evidence in terms of the number of days he actually accumulated. No proof has been submitted demonstrating that Plaintiff was authorized to carry over vacation days back from 1990 through 1997. No proof has been presented to demonstrate that the same number of sick leave and personal days approved in 2003 were in effect in 1990 and thereafter. The 2003 Resolution does not provide for the accrual of personal days. No explanation of the 20.5 days listed as "Bonus" on the summary is provided. Overall, numerous triable issues of fact are presented as to how Plaintiff accumulated the claimed 448 days for which he seeks payment. Therefore, summary judgment on the issue of damages on the first cause of action must be denied.
B. Second Cause of Action
The second cause of action is based upon the following provision of the Consulting Agreement:
5. Unused Vacation, Sick and Personal Days. Upon the execution of this Agreement CONSULTANT shall be paid for any and all prior unused vacation, sick, personal, birthday days and accrued compensatory time based upon his prior salary except for 30 days of vacation time which shall be paid to CONSULTANT upon termination of this Agreement.
The Consulting Agreement, dated January 20, 2004. The record contains a resolution of Defendant, dated January 6, 2004, wherein Defendant authorized its Chairman to execute an "employment agreement" the Consulting Agreement with Plaintiff. The Consulting Agreement provides that Defendant wanted "to engage the services of the CONSULTANT [Plaintiff] to perform consulting services for the CDA as a Project Manager for the North Main Street Urban Renewal, Hempstead, New York as an employee of the CDA."
Plaintiff alleges that he performed the required services as the Project Manager from February 1, 2004, until he resigned on September 20, 2004, and that he has received no payments under the Consulting Agreement. There is evidence in the record that funding for the North Main Street Urban Renewal Project came from a private source, namely RB Hempstead. Plaintiff has presented a prima facie case of Defendant's liability for breach of its obligation pursuant to the Consulting Agreement to pay for "unused vacation, sick, personal, birthday days and accrued compensatory time."
In opposition, Defendant raises a number of arguments. First, it claims that the Consulting Agreement is void ab initio because it is subject to competitive bidding requirements and HUD regulations as a result of federal funding. Defendant's present Commissioner, Claude Gooding, avers that payments required under the Consulting Agreement "would have to be made out of the grant moneys received from the United States Government."
Contracts for professional services requiring specialized skill and expertise are exempt from statutory competitive bidding requirements. Zack Assoc., Inc. v. Setauket Fire Dist., 12 AD3d 439 (2nd Dept. 2004); and Giustino v. County of Nassau, 306 AD2d 376 (2nd Dept. 2003). Plaintiff's responsibilities included review of and input into such diverse matters for the North Street Urban Renewal Project as a blight study, the site plan, appraisals of buildings in the site plan area and portions of the environmental statement. In addition, Plaintiff attended meetings of the Village of Hempstead Planning Board and Defendant's Board and helped prepare Defendant's budget for the fiscal year 2004/2005. Review of the deposition transcripts of Michael Abrahams, the former Deputy Commissioner, Richard Birdoff, a principal of the developer, Charles Robinson, the former Village Attorney, and Gwen Willis, Defendant's Comptroller, make it clear that the services performed by Plaintiff required such specialized knowledge and experience as to render the Consulting Agreement exempt from federal and local competitive bidding statutes.
Furthermore, although questions remain as to whether federal funds were the source of the funding for the Consulting Agreement, it appears that, in any event, HUD regulations would not be applicable. No evidence has been presented by Defendant that the services provided by Plaintiff were available from any other source 24 (CFR 85.36[d][4]). Indeed, the record, as a whole, establishes the uniqueness of Plaintiff's services based upon his experience and familiarity with the North Street Urban Renewal Project and Defendant's needs.
Defendant further challenges the calculation and use by Plaintiff of "comp time" to preserve his vacation and sick days. The documentary basis for the accumulation of "comp time" is the CSEA contract in effect from June 1, 1998 — May 31, 2003, asprovided in the 2003 Resolution. As the CSEA contract does not prohibit the use of "comp time" to preserve vacation days and sick days, this objection is rejected.
Defendant's argument that Plaintiff was not an employee, but a "consultant" is also unfounded. A written agreement that is complete, clear and unuambiguous on its face must be enforced according to the plain meaning of its terms. Norma Reynolds Realty Inc. v. Edelman, 29 AD3d 969 (2nd Dept. 2006). See also, Matter of Matco-Norca Inc. v. Matz, 22 AD3d 495 (2nd Dept. 2005). The Consulting Agreement plainly states in the "Whereas" paragraph that Plaintiff was to be engaged as "an employee of the CDA," and the resolution authorizing Defendant to execute the Consulting Agreement referred to it as an "employment agreement."
Defendant has failed to raise a triable issue of fact as to its liability for breach of the Consulting Agreement. Accordingly, summary judgment on the issue of Defendant's liability on the second cause of action must be granted.
However, many of the same questions of fact regarding the accumulation of vacation days, sick days, and personal days, that exist concerning the first cause of action, are present with respect to the second cause of action. In addition, the Court notes that there is no evidence to support the accumulation or use of "comp time" prior to June 1, 1998, which would exclude approximately 11 of the days noted on Plaintiff's summary of accrued time. Based on the foregoing, summary judgment on the issue of damages on the second cause of action must be denied.
C. Third Cause of Action
In his third cause of action, Plaintiff alleges that he is due $81,193.75 for services performed pursuant to the Consulting Agreement. His evidence consists of typewritten pages, with brief descriptions the work performed and a notation of minutes or hours spent on such work. The Consulting Agreement provides for Plaintiff to be compensated at the rate of $275 per hour, with a 20-hour bi-weekly maximum. Plaintiff was required to submit bi-weekly time sheets "setting forth the amount of hours worked and the extent of the work performed."
Defendant insists that Plaintiff failed to comply with the Consulting Agreement in that his time sheets were not submitted on a bi-weekly basis and they were not properly itemized. Defendant further insists that there are "serious factual issues as to the accuracy and reasonableness of Spiritis' time sheets and that Plaintiff's alleged "time sheets" reflect unreasonable amounts of time with extremely vague descriptions of the work allegedly performed.
A contractual duty ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition. Uniguard Security Ins. Co. Inc. v. North River Ins. Co., 79 NY2d 576, 581 (1992); and Roan/Meyers Assoc. L.P. v. CT Holdings Inc., 26 AD3d 295 (1st Dept. 2006). No such clear language is present in this case. The Consulting Agreement does not expressly condition payment upon the submission of the bi-weekly time sheets. There is no clear language showing an intent to make the required submission of time sheets a condition precedent to payment. Accordingly, to the extent that Defendant argues the failure to comply with a condition precedent, the argument must be rejected.
In contrast, the accuracy of the time sheets is a triable issue of fact. As Robert Francis, the Commissioner during the term of the Consulting Agreement, points out, Plaintiff did not report to him or anyone else at Defendant (Francis affidavit, par. 5). As much of the information regarding Plaintiff's time sheets is peculiarly within Plaintiff's knowledge, Defendant should be allowed to cross-examine Plaintiff as to those time sheets; especially Plaintiff's notation of 8 and 10 hour days on a number of occasions. See gen'lly, Jered Contracting Corp v. New York City Transit Auth., 22 NY2d 187 (1968); and Procter Gamble Distributing Co. v. Lawrence American Field Warehousing Corp., 16 NY2d 344, 362 (1965). Although there is no issue of fraud involved, Defendant certainly suggests that there are errors in Plaintiff's calculations.
Thus, Plaintiff is entitled to summary judgment on the issue of liability on his third cause of action, with the issue of damages referred to trial.
D. Fourth Cause of Action
Finally, the Consulting Agreement expressly provides that in the event of litigation arising out of performance thereunder, "the parties agree to reimburse the prevailing party's reasonable attorney's fees court, court costs, and all other expenses." As Plaintiff has established Defendant's liability on the first three causes of action, Plaintiff is the prevailing party. Consequently, Plaintiff is entitled to summary judgment on the issue of liability on the fourth cause of action for attorney's fees, court costs, and other expenses. The amount and reasonableness of such fees and costs remain to be established at trial. Arent, Fox, Kinter Plotkin Kahn PLLC v. Lurzer GmbH, 297 AD2d 590 (1st Dept., 2002).
Accordingly, it is,
ORDERED, that Plaintiff's motion for summary judgment on its first, second, third, and fourth causes of action in the amended verified complaint is granted on the issue of liability only; and it is further,
ORDERED, that the trial of this matter, as previously scheduled shall proceed on the assessment of damages consistent herewith.
This constitutes the decision and Order of the Court.