Opinion
No. 2373 Index No. 652844/22 Case No. 2023-03377
05-28-2024
David Baxter, Plaintiff-Respondent, v. LPI, Inc., et al., Defendants-Appellants.
Fox Rothschild LLP, New York (Bryn Goodman of counsel), for appellants. Gross Shulman P.C., Buffalo (Kevin R. Lelonek of counsel), for respondent.
Fox Rothschild LLP, New York (Bryn Goodman of counsel), for appellants.
Gross Shulman P.C., Buffalo (Kevin R. Lelonek of counsel), for respondent.
Before: Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered May 16, 2023, which, insofar as appealed from, denied that portion of defendants' motion to dismiss plaintiff's first cause of action for breach of contract, unanimously affirmed, with costs.
Accepting as true the facts alleged in the complaint and affording plaintiff the benefit of every possible inference, as we must do on a motion to dismiss pursuant to CPLR 3211(a)(7) (see Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]), we find that plaintiff adequately pleaded a cause of action for breach of contract. Plaintiff, a citizen of Australia, worked for defendants in his home country and then in the United States. Plaintiff alleges that he received an updated employment agreement from defendants, that the employment agreement was in full force and effect, that he continued working for defendant, and that he was not paid according to the terms of that employment agreement. Plaintiff therefore sufficiently alleged (1) the existence of an employment contract, (2) plaintiff's performance under the contract, (3) that defendants breached the contract by not paying him, and (4) resulting damages (see Alloy Advisory, LLC v 503 W. 33rd St. Assoc., Inc., 195 A.D.3d 436, 436 [1st Dept 2021]).
The employment agreement submitted by plaintiff was not signed, but the terms of the agreement permit execution in counterpart, and we "may freely consider" plaintiff's affidavit stating that he believes defendants to possess such a counterpart (Leon, 84 N.Y.2d at 88). The terms of the submitted agreement do not "conclusively establish[] a defense to the asserted claims as a matter of law" (id.). Although that agreement permitted defendants to review plaintiff's salary, such annual reviews were to be based on "[plaintiff's] performance and [defendants'] other compensation policies." Thus, the face of the agreement alone does not show that defendants had the right to reduce plaintiff's salary (compare Arbeeny v Kennedy Exec. Search, Inc., 71 A.D.3d 177, 180 [1st Dept 2010]). The agreement also contained a clause that prohibited amendment or waiver of its terms except in writing (see Gootee v Global Credit Servs., LLC, 139 A.D.3d 551, 553-554 [1st Dept 2016], appeal dismissed 28 N.Y.3d 946 [2016]).
We have considered defendants' remaining arguments and find them unavailing.