Opinion
6820-07.
Decided January 7, 2008.
Thomas G. Sherwood, LLC, Garden City, New York, Counsel for Plaintiff.
Elisabeth C. Yap, Esq., NBC UNIVERSAL, INC., New York, New York, Counsel for Defendant.
Defendant moves for summary judgment dismissing the complaint. Plaintiff cross-moves for summary judgment in her favor on her first, third, fourth, fifth and sixth causes of action.
INTRODUCTION
By letter dated March 30, 2007, and retroactive to March 16, 2007, Plaintiff, Kristen Cornett ("Cornett"), was fired from her position as a broadcast meteorologist for Defendant, NBC Weather Plus, LLC ("NBC"), a round-the-clock weather television network.
On March 15, 2007, NBC asked Cornett to cancel vacation plans which were approved months earlier in order to help cover an impending storm. Cornett refused to do so. NBC fired her.
The question presented here is whether Cornett's employment agreement with NBC entitled it to rescind its prior approval of her vacation plans due to the impending storm, or whether Cornett's employment was wrongfully terminated. BACKGROUND
The material facts are not in dispute. Cornett entered into an employment agreement with NBC on February 24, 2006 to commence work on March 6, 2006. By e-mail dated November 7, 2006, Cornett requested approval to take time off on Friday, March 16 and Monday, March 20, 2007 (her regular days off included Saturday and Sunday, March 17 and 18). By e-mail dated December 27, 2006, Cornett's supervisor approved her vacation request. As a result, Cornett made plans to travel outside of the state, leaving March 16 and returning March 20, 2007.
On March 15, 2007, a winter storm was forecast to hit the northeast the next day. Hours before Cornett's vacation was to commence, NBC decided that all on-air staff would be needed to cover the winter storm predicted to arrive on March 16, 2007. NBC asked Cornett to postpone her vacation. She declined.
At that time, there were five broadcast meteorologists on staff at NBC. According to NBC, "all the other on-air staff reported to cover the storm" (Thein aff., ¶ 13).
A. The Contract Documents
The parties' employment agreement consists of a three-page letter and a Standard Provisions contract (Exhibit 1 annexed to the moving papers). The three-page letter contains the following provisions:
(3) Artist's services shall be performed at such times and in such places during the term as Producer may designate.
(7) Artist shall be entitled to vacation to be administered in accordance with Producer's company policy. The scheduling of such vacation shall be mutually agreed upon between Producer and Artist, but in the event of a failure to agree, Producer shall designate the vacation period, and endeavor to accommodate Artist.
(8) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, all prior understandings being merged herein. In the event of any inconsistency between this letter agreement and the Standard Provisions, this letter agreement will prevail.
The Standard Provisions contract provides, in pertinent part:
(7) Failure to Perform
(c) If Artist fails or refuses to perform Artist's obligations under this agreement for any reason other than an injury, illness or condition covered by the Company's Short-Term Sickness or Injury and Medical Disability policies, Company shall have the right to suspend its obligation to pay Artist during the period of failure or refusal to perform and Company may, but shall not be obligated to, extend the term of this for a period equal to all or any part of the period or aggregate of periods of such suspension. Company may exercise any or all of such rights at any time during the continuance of such any refusal of Artist to perform services hereunder up until the scheduled end date of this agreement; and Company may also terminate this agreement, whether or not it has previously exercised any of the rights specific herein.
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(e) Company may terminate this agreement in the event of Artist's breach of any material representation, warranty, term or condition of this agreement; provided, however, that prior to any termination under this provision, Company will provide Artist with written notice setting forth the elements of the breach and give Artist the opportunity to cure the breach, if such cure is timely and possible, to the satisfaction of Company.
Cornett was also provided with a Staff Manual (Exhibit 2 annexed to the cross-motion papers), which provides, inter alia:
Time Off If you are planning to go out of the Tri-State area either on a vacation day or even your regular days off, please let Jeff, Christine or Larry know — so in the event of breaking weather or someone else calling in sick — we know who's available. Please leave a preferred contact number (even if it's your regular cellphone number) so we can reach you in event of an emergency.
Plaintiff was also given a Benefits Handbook (Exhibit 3 annexed to the cross-motion papers). Regarding vacation, the Benefits Handbook provides, in pertinent part:
12.2 Key Things to Do
Before you take time off No matter what the reason for your time off (vacation, personal business or leave of absence) — be sure your request for time off has been approved in advance by your manager and that you have completed a leave request form, if applicable. If you do not have advance approval, you could lose pay, benefits, service credits and even your job.
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12.3.6 When can I take a vacation?
At any time during the current calendar year, you will be permitted to take the vacation that you will earn during the same calendar year, provided our manager approves the vacation in advance.
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It is best to schedule your vacation as early as possible each year. That way, you are more likely to be granted vacation time when you prefer it. You may be asked to alter your vacation request to ensure sufficient staffing.
B. The Pleadings
In her complaint, Cornett alleges seven causes of action. She seeks summary judgment on the first and third causes of action for breach of contract and the fourth, fifth, and sixth causes of action pursuant to Labor Law § 198(1-a). Cornett admits that NBC has made payment in satisfaction of her second cause of action for unused vacation days.
In its answer, NBC denies the validity of Plaintiff's causes of action, alleges eight affirmative defenses and, at this time, requests summary judgment dismissing the entire complaint.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is the procedural equivalent of a trial. Capelin Assoc. Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 (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). Summary judgment will not be defeated by mere conclusions or unsubstantiated allegations. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
B. Contract Interpretation
A contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement. Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 (2002). "The best evidence of what parties to a written agreement intend is what they say in their writing." Id. at 569, quoting Slamow v. Del Col, 79 NY2d 1016, 1018 (1992). A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. South Road Assoc., LLC v. International Business Machines Corp., 4 NY3d 272, 277 (2005); WWW Assoc., Inc. v Giacontieri, 77 NY2d 157, 162 (1990); and Norma Reynolds Realty Inc. v. Edelman , 29 AD3d 969 (2nd Dept. 2006).
The interpretation of an unambiguous contract provision is a matter for the court Greenfield v. Philles Records, Inc., supra at 569; WWW Assoc., Inc. v. Giacontieri, supra at 162. A contract is unambiguous if the language it uses has a "definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion." Greenfield v. Philles Records, Inc., supra at 569, quoting Breed v. Insurance Co. of North America, 46 NY2d 351, 355 (1978). In contrast, ambiguity exists where the terms of an agreement are susceptible to two or more reasonable interpretations. Essex Ins. Co. v. Pingley , 41 AD3d 774 (2nd Dept.), lv. app. den., 9 NY3d 811 (2007); and Geothermal Energy Corp. v. Caithness Corp. , 34 AD3d 420 , 423 (2nd Dept. 2006).
Parol evidence is inadmissible if a contract is clear on its face and sufficient alone to divine the intent of the parties. Namad v. Salomon Inc., 74 NY2d 751 (1989).
See, South Shore Road Assoc. LLC v. International Business Machines Corp., supra at 278.
A court may not insert terms or rewrite the contract under the guise of interpretation. Bailey v. Fish Neave , 8 NY3d 523 , 528 (2007); Vermont Teddy Bear Co., Inc v. 538 Madison Realty Co. , 1 NY3d 470 , 475 (2004); and Aivaliotis v. Continental Broker-Dealer Corp. , 30 AD3d 446 , 447 (2nd Dept. 2006). The court should not interpret an agreement to impliedly contain provisions that are not specifically stated Vermont Teddy Bear Co., Inc v. 538 Madison Realty Co., supra at 476.
It is a canon of contract construction that an agreement must be construed most strongly against the party who drafted it, and favorably to a party who had no voice in the selection of its language. Jacobson v. Sassower, 66 NY2d 991, 993 (1985); and Strauss Paper Co., Inc v. RSA Executive Search Inc., 260 AD2d 570 (2nd Dept. 1999).
C. Breach of Contract Claims
1. First and Third Causes of Action
An employee is bound to obey all reasonable orders of the employer not inconsistent with the parties' contract. Jerome v. Queen City Cycle Co., 163 NY 351 (1900). However, acts done by an employee in defense of his contract rights are not insubordinate. Rudman v. Cowles Communications Inc., 30 NY2d 1, 10 (1972).
Both parties insist that their agreement is unambiguous. This Court agrees, and for this reason, will now consider the correct interpretation of the parties' agreement.
The answer to the parties' dispute must be found within the contract documents. For this reason, NBC's reliance on Reilly v Polychrome Corp., 872 F. Supp. 1265 SDNY), aff'd., 71 F.3d 405 (2nd Cir. 1995) is misplaced. In Reilly, an officer of defendant corporation was terminated when he refused his superior's direction to come to work when his refusal was not based upon the exercise of his contractual rights but rather in furtherance of his disagreement with the superior. Here, the reasonable instructions of NBC to Cornett to come to work during her approved vacation time must be analyzed in the context of the contractual rights of the parties. This is not a simple case of an insubordinate employee ignoring the direction of her employee without any right or justification. See, e.g., Rudman v. Cowles Communications, Inc., supra at 10.
The contract provides for the parties to agree upon the employee's vacation. The parties did agree. NBC's claim that it did not agree is belied by the e-mail dated December 27, 2006 (Exhibit 4 annexed to the cross-moving papers), wherein Cornett's supervisor wrote: "Approved . . . it's in the book" as a reply to her e-mail dated November 7, 2006, seeking such approval.
The Court has scrutinized all of the documents provided by the parties. Not one of them contains a provision giving NBC the right to rescind its approval and agreement with respect to time off. No mention of the right to rescind or cancel or override vacation approval is contained in any of the documents provided except in the Benefits Handbook ¶ 12.3.6 which states, "You may be asked to alter your vacation request to ensure sufficient staffing." No consequences are discussed if the employee refuses the request.
It is noted that NBC's request for Cornett to alter her vacation plans was most reasonable. It included an offer to cover Cornett's costs for altering her schedule by one day.
NBC seems to agree by explaining this omission by its reference to "company policy" in the first sentence of paragraph 7 of the 3-page letter agreement. It is on this basis that NBC argues that "company policy" requires flexibility, namely, that due to the unpredictable nature of weather, "employees need to be willing, if necessary, to adjust their schedules, including vacation schedules" (Thein aff., ¶ 4). That paragraph states that the producer (NBC) shall endeavor to accommodate Artist (Cornett). There is no reciprocal provision vis-a-vis the employee toward the employer.
Cornett disputes NBC's explanation and focuses on the entire sentence which links "company policy" to the administration of vacation days. She argues that this language incorporates the provisions of the Staff Manual and the Benefits Handbook, which describe the manner in which employees would accrue and then use vacation days. Cornett further argues that parol evidence is not admissible to supplement an agreement that is plain on its face.
Cornett has the better argument. Reading the three-page letter, the Standard Provisions Contract, the Staff Manual and the Benefits Handbook together, it is clear that vacation use is qualified by NBC's explicit policies on vacation accrual and scheduling. To hold otherwise, and find that NBC had a right to rescind previously granted vacation approvals, would be inconsistent with the parties' written agreement, wherein the rules for time off are clearly set forth. Vacation days must be approved in advance and those taking vacation outside of the tri-state area must leave phone numbers where they can be reached in case of emergency. If "company policy" can override company approval, then at the very least, the rest of paragraph 7 of the three-page letter is meaningless which is impermissible. 150 Broadway NY Assoc., LLP v. Bodner , 14 AD3d 1 , 4 (1st Dept. 2004). See, Hudson Iron Works Inc. v. Beys Specialty Contracting Inc., 262 AD2d 360 (2nd Dept. 1999) (a contract must be interpreted so as to give full effect to all its provisions). See also, Poughkeepsie Savings Bank, FSB v. G.M.S.Y. Assoc., 238 AD2d 327 (2nd Dept. 1997)
NBC could have negotiated and included in the contract documents such terms as rescission of vacation approval and the need, during emergencies, for employees to be on call 24/7 regardless of prior vacation approval, but it did not do so. See, Vermont Teddy Bear Co., Inc. v 538 Madison Realty Co., supra at 476. This Court must construe the parties' agreement most strongly against the party that drafted it and chose its language. Jacobson v. Sassower, supra. Further, the Court may not add terms to the contract in the guise of interpreting it. Petracca v. Petracca, 302 AD2d 576 (2nd Dept. 2003); and Tikotzky v. New York City Transit Auth., 286 AD2d 493 (2nd Dept. 2001).
On this record, Cornett is entitled to summary judgment as a matter of law as to NBC's liability on her first and third causes of action for contract damages. The issue of Plaintiff's damages on the first and third causes of action shall be set down for trial.
2. Second Cause of Action
Cornett admits that NBC has made payment in satisfaction of her second cause of action for unused vacation days. Under these circumstances, NBC is entitled to summary judgment dismissing the second cause of action.
D. Labor Law Claims
1. Fourth Cause of Action
In her fourth cause of action, Cornett alleges that by failing to pay the balance of the salary due her under their agreement, NBC has violated Labor Law § 193. In her Memorandum of Law, Cornett elaborates that NBC's withholding of her salary for the period from March 17, 2007 through March 1, 2009 violates Labor Law § 193 (Memorandum of Law, pp. 20-21). This section of the Labor Law, entitled Deductions from Wages, prohibits deductions from wages of an employee except where made in accordance with law, rule or regulation, or where expressly authorized in writing by the employee and are for the benefit of the employee. "Wages" are defined in Labor Law § 190 (1) as "the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis." "Employee" is defined as "any person employed for hire by an employer in any employment." Labor Law 1 § 90(2).
The monies Cornett seeks in this action are not wages inasmuch as they are not earnings for services already rendered. See, Gennes v. Yellow Book of New York, Inc. , 23 AD3d 520 , 521-522 (2nd Dept. 2005) (no recovery for vacation time which had not vested at time of termination.) Even her claim for the "Final Salary Payment" does not suffice, because NBC's termination letter made the termination retroactive to March 16, 2007. Plaintiff has no claim for wages that fall within the parameters of Labor Law § 193. For this reason, NBC is entitled to summary judgment dismissing the fourth cause of action.
2. Fifth Cause of Action
Cornett's fifth cause of action, also pursuant to Labor Law § 193, is for unused vacation days improperly withheld from her when her employment was terminated. Again, as Cornett admits, NBC has made payment in satisfaction of her second cause of action for unused vacation days. Thus, she can have no extant Labor Law claim for improper withholding of payment of unused vacation days. Consequently, NBC is entitled to summary judgment dismissing the fifth cause of action.
3. Sixth Cause of Action
Plaintiff's sixth cause of action is for relief "under one or more provisions of Article 6 of the New York Labor Law (Complaint, ¶ 67), which would trigger an award of attorneys fees pursuant to Labor Law § 198 (1).
It is well established that relief pursuant to Labor Law 198(1) authorizing attorneys fees is limited to wage claims based upon violations of one or more of the substantive provisions of Labor Law Article 6. Gottlieb v. Kenneth D. Laub Co., Inc., 82 NY2d 457 (1993). As Cornett has demonstrated no substantive violation of Labor Law Article 6, she has no claim for attorneys' fees thereunder. Accordingly, NBC is entitled to summary judgment dismissing the sixth cause of action.
F. Prima Facie Tort
Recovery cannot be had in an action for prima facie tort unless the pleader alleges facts indicating that malevolence is the sole motive for the defendant's otherwise lawful act. Burns Jackson Miller Summit Spitzer v. Lindner, 59 NY2d 314, 333 (1983); Simaee v. Levi, 22 AD3d 559, 563 (2nd Dept. 2005); and Morrell v. Gorenkoff, 278 AD2d 210 (2nd Dept. 2000). In its answer, NBC asserts that its letter of termination speaks for itself. Review of the letter of termination, wherein NBC provides its reasoning, including Cornett's alleged disregard for instructions and alleged indifference to the effect of her actions on NBC's operation, demonstrate that malevolence was not the sole motive for NBC's decision to terminate her. Under these circumstances, NBC is entitled to summary judgment dismissing the seventh cause of action for prima facie tort.
Accordingly, it is,
ORDERED, that Defendant's motion for summary judgment dismissing the complaint is granted as to the second, fourth, fifth, sixth and seventh causes of action, and denied as to the first and third causes of action; and it is further,
ORDERED, that Plaintiff's cross-motion for summary judgment is granted as to liability on the first and third causes of action which shall be set down for a trial on the issue of damages, and is otherwise denied; and it is further,
ORDERED, that counsel for the parties shall appear for a preliminary conference to schedule discovery and a trial of this matter on February 8, 2008 at 9:30 p.m.
This constitutes the decision and Order of the Court.