Opinion
SC 2071–17
01-25-2018
William O. WAGSTAFF, III, Plaintiff, v. MOUNT VERNON URBAN RENEWAL AGENCY and The City of Mount Vernon, Defendant.
William O. Wagstaff III, Office of the Corporation Counsel, Mount Vernon City Hall, One Roosevelt Square, Mount Vernon, New York 10550, for Plaintiff pro se.
William O. Wagstaff III, Office of the Corporation Counsel, Mount Vernon City Hall, One Roosevelt Square, Mount Vernon, New York 10550, for Plaintiff pro se.
A trial was held in this small claims action where the plaintiff seeks to recover damages in the amount of $4,500.00 resulting from defendants' alleged breach of a consulting agreement.
Ms. Shawyn Patterson Howard testified on behalf of plaintiff. Ms. Howard was the Executive Director of the City of Mount Vernon Urban Renewal Agency from March 2016 until January 2017. As such, she was an employee of the City of Mount Vernon. Ms. Howard testified that defendant Mount Vernon Urban Renewal Agency and plaintiff entered into a consulting agreement on September 29, 2016, with an effective starting date of September 15, 2016, whereby plaintiff was to act as the compliance officer for defendant to ensure that it was complying with all applicable federal, state and local regulations. A copy of the consulting agreement was marked as plaintiff's Exhibit "B". The term of the consulting agreement was to begin on September 15, 2016 and was to terminate on December 15, 2016, unless terminated prior in the manner prescribed for in the agreement. Ms. Howard testified that prior to renewing plaintiff's position as a consultant the Mount Vernon Urban Renewal Agency Board, of which she was a member, would have a board meeting and then vote on a resolution regarding whether to enter into a new consulting contract with the plaintiff. Ms. Howard also testified that to her knowledge the renewal of plaintiff's consulting agreements had always been executed retroactively. She further testified that defendant was considered an independent contractor and not an employee. Accordingly, the City of Mount Vernon did not deduct taxes from its payments to plaintiff.
In or about November 2016, the Mount Vernon Urban Renewal Agency received a subpoena from the United States Attorney's Office of the Southern District seeking certain documents. Ms. Howard testified that she sent a copy of the subpoena to Mr. Lawrence Porcari, the City of Mount Vernon Corporation Counsel and that she had conversations with Mr. Porcari and other officials of the City of Mount Vernon regarding the subpoena. In addition, Ms. Howard consulted with the plaintiff regarding the subpoena response that was submitted and directed plaintiff to prepare the response to the subpoena, which he did.
On December 14, 2016, plaintiff and Ms. Howard were called into a meeting with Mr. Richard Thomas, Mayor of the City of Mount Vernon, Mr. Porcari and Ms. Milissa Ralph, Deputy Human Resources Commissioner. The meeting was held to discuss plaintiff and Ms. Howard's response to the subpoena. At the conclusion of the meeting both plaintiff and Ms. Howard received a letter dated December 14, 2016 stating, in pertinent part, "[p]lease be advised that you are being suspended with pay, pending investigation, regarding the subject matter of the meeting held today, December 14, 2016 at 5:00 PM." A copy of the December 14, 2016 letter (hereinafter "December 14, 2016 suspension letter") was marked as plaintiff's Exhibit "A". Ms. Howard testified that it was her understanding that they would both be paid until the end of the investigation.
Subsequently, on or about December 20, 2016 plaintiff received a letter from defendants, with a two page stipulation attached, notifying him of the status of the pending investigation. The December 20, 2016 letter states in pertinent part "Subject to your agreement to the terms of and your signing of the attached stipulation, the City of Mount Vernon is prepared to immediately reinstate you to your position as the Compliance Officer for the Mount Vernon Urban Renewal Agency. Please review the attached stipulation and return a signed copy ..." A copy of the December 20, 2016 letter (hereinafter "December 20, 2016 reinstatement letter"), with an unexecuted two page stipulation attached, was marked as plaintiff's Exhibit "D". Ms. Howard stated that she had received a similar correspondence from defendants.
Ms. Howard testified that thereafter on January 5, 2017 a meeting was held with Mr. Thomas, Mr. Porcari and Ms. Ralph to discuss her and plaintiff's suspensions. Ms. Howard indicated that it was her understanding from the meeting that her and plaintiff's paid suspensions would end unless they signed the aforementioned stipulations. Ms. Howard stated that she was paid through January 20, 2017.
On cross-examination, Ms. Howard testified that prior to December 14, 2016 she had a conversation with Mr. Thomas about renewing plaintiff's consulting agreement but that no further similar conversations were had regarding renewing plaintiff's consulting agreement after December 14, 2016. Ms. Howard further testified that it was her impression from that prior conversation that plaintiff's contract would be renewed.
Plaintiff sets forth several arguments in support of his claim that the defendants owe him $4,500 for his unpaid voucher for the period of time from December 15, 2016 to January 6, 2017. First, plaintiff contends that the December 14, 2016 suspension letter was a promise to pay made by the defendants and, as such, no consideration on his part was required for such a promise to be enforceable. Second, plaintiff alternatively contends that the December 14, 2016 suspension letter stayed the termination of his consulting agreement, which by its terms was to end on December 15, 2016. Plaintiff, however, cites no case law to support his position. Plaintiff further contends that the December 20, 2016 reinstatement letter extended and/or renewed his consulting agreement with the Mount Vernon Urban Renewal Agency which was then terminated on January 5, 2017. In support of the latter argument plaintiff contends that based upon the defendants prior course of conduct in renewing his consulting agreements retroactively, the letter clearly indicates that his contract was renewed or alternatively, extended. Finally, plaintiff contends that since he and Ms. Howard were similarly situated, since they were suspended together pending the investigation, he should get paid for the period of time during which they were suspended together.
The Court finds that plaintiff has failed to establish by a preponderance of the evidence that he is entitled to the $4,500.00 sought under any of the theories of recovery proposed by him. First, the December 14, 2016 suspension letter was not an unfettered promise to pay. The letter states, in pertinent part, "[p]lease be advised that you are being suspended with pay, pending investigation, regarding the subject matter of the meeting held today, December 14, 2016 at 5:00 PM." The letter merely states that plaintiff was being suspended from his work duties with pay. There is no indication in the language of the letter that defendants were promising to pay him for a sum certain as required for a promise to pay (see UCC § 3–104(1)(a)-(d). Moreover, even assuming that the language of the letter could be construed as a promise to pay, a promise to pay without consideration is not enforceable (see Beitner v. Becker , 34 AD3d 406 [2nd Dept. 2006] ).
Similarly, the language of the December 14, 2016 letter also does not stay the termination of his consulting agreement. The letter only states that plaintiff will be paid for his work duties even though suspended from performing them and contains no reference at all to plaintiff's consulting contract. By operation of the consulting agreement's own terms, which are part of a fully agreed upon and integrated contract, plaintiff's duties as a consultant for the Mount Vernon Renewal Agency ended on December 15, 2016. It is axiomatic that when an employment contract contains a fixed term, the employment terminates on the date specified in the contract. Yule v. New York Chiropractic College , 43 AD3d 540 [3rd Dept. 2007] ; Rosen v. Vassar Coll. , 135 AD2d 248, lv denied 72 NY2d 805 [1988]. As such, by the terms of the letter plaintiff was to be paid for the one day that his duties were suspended, that being December 15, 2016. Defendant's exhibit dated November 17, 2017, signed by Darren Morton, Commissioner of the Mount Vernon Department of Recreation indicates that plaintiff was, in fact, paid for his work through December 15, 2016. Notably, an extensive review of case law by the Court revealed no legal authority to support plaintiff's specious contention that the termination of his consulting contract was stayed by the December 14, 2016 letter suspending his duties under the contract.
Plaintiff's contention that the December 20, 2017 reinstatement letter extended and/or renewed his consulting agreement is also without merit. First, the letter clearly states that plaintiff's reinstatement to his position as the compliance officer for the Mount Vernon Urban Renewal Agency was contingent upon the plaintiff signing the stipulation attached to the letter. There is no evidence in the record to establish that said stipulation was signed by the plaintiff. As such, by the terms of the letter there was no reinstatement of the plaintiff to his position as a consultant. Moreover, assuming arguendo that plaintiff did sign said stipulation, the evidence established that the normal protocol before plaintiff and defendant entered into a consulting agreement was for the Mount Vernon Renewal Agency Board to have a meeting and then vote on a resolution that it would enter into a new consulting agreement with plaintiff. As such, at best, the language of the December 20, 2017 letter indicating that the defendants were prepared to reinstate plaintiff to his position as the compliance officer for the Mount Vernon Urban Renewal Agency could only have been construed as an indication that the Mount Vernon Renewal Agency Board was prepared to vote a resolution for a new consulting agreement between the parties. There was no evidence that the Mount Vernon Renewal Agency Board voted on such a resolution.
Lastly, plaintiff's contention that he and Ms. Howard were similarly situated and as such, he should be entitled to collect payment for the period of time from December 15, 2016 to January 6, 2017 is also without merit. Ms. Howard was an employee of the defendant whereas plaintiff was merely an independent contractor pursuant to a consulting agreement. As discussed above, the scope of plaintiff's employment with the defendants was governed by the terms of the contract, which set forth a specific period of time for which he would act as a consultant and specifically, that his services as a consultant were to end on December 15, 2016. The fact that plaintiff only sought payment up through January 6, 2017 whereas Ms. Howard was paid until January 20, 2017 belies plaintiff's illogical contention that he and Ms. Howard were similarly situated and should be compensated as such.
Accordingly, plaintiff has failed to demonstrate by a preponderance of the evidence that he is entitled to the $4,500.00 sought under any viable theory of recovery.
Judgment for defendants.