Opinion
October 10, 1973
Appeal from the Civil Court of the City of New York, County of New York, JEROME W. MARKS, J.
Daniel M. Shientag for appellant.
Irving Moldauer and Irwin M. Berg for respondent.
Plaintiff has been granted summary judgment for severance pay. Where an employee is justifiably discharged for a material breach of his employment agreement, he is not entitled to severance pay ( Vogel v. Pathe Exch., 234 App. Div. 313, 318). The conflicting affidavits and documentation submitted below present a triable issue as to whether plaintiff's discharge for misconduct, disobedience and insubordination was, in fact, justified. By retaining the plaintiff in its employ after obtaining knowledge of the latter's claimed breaches of duty, the defendant did not condone the offenses as a matter of law, since the offenses are claimed to have been committed from time to time up until plaintiff's actual discharge ( Gray v. Shepard, 147 N.Y. 177, 183, 184).
The order and judgment should be modified by reversing so much thereof as granted plaintiff partial summary judgment in the amount of $6,250, with interest and costs, and, as modified, affirmed with $10 costs.
Concur — MARKOWITZ, P.J., FINE and FRANK, JJ.
Order and judgment modified, etc.