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Thursday, August 03, 2017

Contracting with a former employee to assist in the training and transition his or her replacement


Contracting with a former employee to assist in the training and transition his or her replacement  
2017 NY Slip Op 02300, Appellate Division, Fourth Department

A retired Superintendent of Schools [Plaintiff] of the School District [District] commenced this breach of contract action seeking damages for the alleged breach of an agreement whereby the District agreed to pay Plaintiff $22,000 "as compensation for making himself available to assist the new Superintendent in the development of the school budget for the following fiscal year and such other duties as may be reasonably required to assist in the training and transition of the new Superintendent.'"

Prior to Plaintiff's retirement he had removed or destroyed a large number of documents that were kept in the Superintendent's office. The District wrote Plaintiff advising him that it had determined that the removal of these documents constituted a breach of the agreement and canceled the District's obligation under the agreement to issue payments to Plaintiff.

Supreme Court denied the District's motion for summary judgment dismissing Plaintiff's amended complaint and for judgment on the District's counterclaim, for conversion.* The Appellate Division concluded that the District "failed to meet their initial burden" and thus Supreme Court properly denied its motion.

The Appellate Division's decision notes that:

1. Plaintiff's "deposition testimony" stated that he was at all times "ready, willing and able" to assist the District and the new Superintendent but was never called upon to do so;

2. Plaintiff testified that "at least 50%" of the documents destroyed were personal documents accumulated over his 52-year career and, otherwise, they were documents that he considered to be his copies of documents that existed in other parts of the District, either as hard copies or in electronic format;"

3. The District had submitted the deposition testimony of the newly-hired superintendent who testified that he called Plaintiff with respect to the discarded documents and that he interpreted Plaintiff's responses to his inquiries regarding the discarded documents as a "threat," and he did not again contact Plaintiff; and

4. The District also submitted the deposition testimony of a District employee who testified that he observed a personnel file in the documents removed from Plaintiff's office.

The Appellate Division said that viewing District's submissions in the light most favorable to Plaintiff, "as we must," it concluded that the District failed "to demonstrate the absence of any material issues of fact whether Plaintiff's actions constituted a repudiation of the contract." The court cited Alvarez v Prospect Hospital, 68 NY2d 320, which addressed the question of whether a plaintiff's actions "constitute[d] an unequivocal and overt communication of [his or her] intention not to perform agreed-upon obligations."

In addition, the court ruled that the District had failed to establish its entitlement of judgment on its counterclaim alleging "conversion."

* Conversion is any unauthorized act that deprives an owner of personal property without his or her or its consent.

The decision is posted on the Internet at:


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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