Frank v. Toymax International, Inc.

In an action to recover damages for breach of an employment contract, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated September 25, 2003, as denied that branch of its motion pursuant to CPLR 3211 (a) (7) which was to dismiss the fifth and seventh causes of action in the plaintiffs second amended complaint and the plaintiff cross-appeals from the same order. Ordered that the cross appeal is dismissed as abandoned; and it is further, Ordered that the order is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the plaintiff. The employment contract at issue was a “general retainer” and thus the plaintiff can enforce the severance package provision in the agreement (see Martin v Camp, 219 NY 170, 176 [1916]; Greenberg v Remick & Co., 230 NY 70 [1920]; Ehrlich v Rebco Ins. Exch., Ltd, 198 AD2d 58 [1993]). However, contrary to the Supreme Court’s finding, there may have been “good cause” for the termination of the plaintiffs employment (see 22 NYCRR 1200.24), and that issue must be determined by the trier of fact. Schmidt, J.P., S. Miller, Santucci and Mastro, JJ., concur.