John Mezzalingua Associates., Inc. v. Walker

Appeal from an order of the Supreme Court, Onondaga County (Charles T. Major, J.), entered January 27, 2003. The order denied plaintiffs motion for summary judgment in a breach of contract action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. [1159] Memorandum: Plaintiff commenced this action against defendant, its former employee, alleging breach of an employment contract. In his answer, defendant denied any breach of contract on his part and counterclaimed for damages for plaintiffs alleged breach of contract in wrongfully terminating him. Plaintiff appeals from an order denying its motion for summary judgment on its complaint and for dismissal of defendant’s counterclaims. Supreme Court properly denied plaintiffs motion. There are triable issues of fact concerning whether defendant misrepresented that he was not employed elsewhere and whether he violated his contractual covenants of honesty, loyalty and best efforts, as well as his covenant not to compete (see Stalis v Sugar Cr. Stores, 295 AD2d 939, 941-942 [2002]; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 909 [1998]; Tri-Delta Aggregates v Chautauqua County, 237 AD2d 880, 881 [1997]; Velardi v Lerman, 203 AD2d 929 [1994]). It is for the trier of fact to determine whether plaintiffs termination of defendant’s employment was for a reason other than plaintiffs genuine dissatisfaction with defendant’s performance under the contract (see Lo Cascio v James V. Aquavella, M.D., P.C., 206 AD2d 96, 101 [1994], citing Golden v Worldvision Enters., 133 AD2d 50 [1987], lv denied 71 NY2d 804 [1988]; Hortis v Madison Golf Club, 92 AD2d 713, 714 [1983]; Fursmidt v Hotel Abbey Holding Corp., 10 AD2d 447 [1960]). Present—Pine, J.P., Hurlbutt, Kehoe, Lawton and Hayes, JJ.