Teacher Fired | Reducing Legal Expenses | Contract Interpretation

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Reversed the Reversal — Teacher Fired

Reversed the Reversal — Teacher Fired

“Here, it cannot be said that it was irrational, against public policy, or ultra vires for the arbitrator to determine that [a public school teacher’s] public possession of heroin warranted the penalty of dismissal.”

Although that holding by New York’s Appellate Division may seem like an obvious one, it was actually a decision which reversed the prior holding of the Supreme Court. In 2014, the Supreme Court sided with a New York City tenured school teacher, and held that the Department of Education’s (“DOE”) decision to terminate a teacher, after he was found with about 20 small bags of heroin in a cigarette box, in his backpack, when walking through security to serve as a juror for a murder trial, “shock[ed] this court’s sense of fairness.” The Supreme Court mandated the “less harsh” punishment of suspension without pay.

The DOE appealed that decision, and has won.

The Supreme Court, in coming to its erroneous decision, cited to other cases where teachers were arrested and charged with similar crimes and not terminated, including a case where a teacher was arrested and charged with multiple felony counts of sale and possession of controlled substances but only suspended without pay for two years. The teacher relied upon those cases, and made a legal argument against the DOE’s authority to discipline teachers for non-school related, off-campus incidents. The DOE basically argued that the crime speaks for itself, and that a teacher who “inadvertently” brings about 20 bags of heroin into a courthouse, where he knows he will be subject to search, speaks volumes about the teacher’s fitness to teach our youth, and to command the necessary respect in the classroom going forward.

The Appellate Division did not state exactly what arguments it found persuasive and which it did not; but rather, relied upon the well-settled law that great deference should be given to arbitration determination, particularly in employment context. The DOE’s original decision to terminate the teacher now stands, likely for good. As for the teacher, Will Rogers said it best: “Common sense ain’t common.”

Avoiding Large Legal Expenses With A Summary Judgment in Lieu of Complaint

Avoiding Large Legal Expenses With A Summary Judgment in Lieu of Complaint

The civil procedural rules in New York recognize that some claims have greater presumptive merit than others, and should have easier access to resolution than an ordinary action gets. New York singles out these claims and permits them to be brought on by an initial summary judgment motion. Instead of the usual complaint accompanying the summons, papers in support of a summary judgment motion are filed along with the summons. This is more commonly known as a “motion for summary judgment in lieu of complaint.” Instead of having the defendant answer the complaint in the normal course, the motion papers pick out a specific return date and require the defendant to answer the motion and argue why judgment should not be immediately granted. In addition to eliminating the requirement of answering a complaint, this procedure also sidesteps what is often a long, expensive, and somewhat tortuous discovery process.

The type of claims which may benefit from this expedited treatment are those based on “an instrument for the payment of money only” or based upon “any judgment.”

In Eastern Funding LLC v. 843 Second Ave. Symphony, Inc., the plaintiff moved, pursuant to CPLR 3213, for summary judgment in lieu of complaint against defendants 843 Second Ave. Symphony, Inc., Symphony 44 Cleaners Inc., and Symphony 37 Corp. to recover the unpaid balances on three loans made to defendants, each of which was memorialized by a promissory note governed by New York law. First, plaintiff loaned $200,000 to Symphony 37 pursuant to a Negotiable Promissory Note dated November 10, 2009. The First Note carries 9.56181 percent annual interest and is payable in 54 consecutive monthly installments beginning on December 15, 2009. Second, plaintiff loaned $75,000 to Symphony 44 pursuant to a Secured Promissory Note and Agreement dated July 14, 2012. The Second Note carries 10 percent annual interest and is payable in 72 consecutive monthly payments beginning on November 24, 2012. Third, plaintiff loaned $330,000 to Symphony 843 pursuant to a Secured Promissory Note and Agreement dated March 19, 2013, which carries a variable interest rate and is payable in 87 consecutive monthly installments beginning on April 19, 2013.

On March 18, 2013, all three defendants executed an Agreement of Cross Default, Guaranty and Collateral Security, whereby they each jointly and severally guaranteed all three of the Notes. By letter dated March 24, 2015, plaintiff informed defendants that they were in default and that the total amount outstanding on the Notes was in excess of $600,000.

In support of the motion for summary judgment in lieu of complaint, plaintiff submitted the affidavit of its Vice President of Collections who set forth the circumstances of the Notes, which were attached to his affidavit. On June 22, 2015, all three defendants were served via the Secretary of State. The defendants did not file opposition papers.

The Court stated that “pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is ‘based upon an instrument for the payment of money only or upon any judgment.’ It is well settled that a motion under CPLR 3213 is an appropriate means to collect on a note and a guaranty. *** To establish prima facie entitlement to summary judgment in lieu of complaint, a plaintiff must show the existence of a promissory note executed by the defendant containing an unequivocal and unconditional obligation to repay and the failure of the defendant to pay in accordance with the note’s terms. Once the plaintiff submits evidence establishing these elements, the burden shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense.”

The Court concluded that “plaintiff is entitled to summary judgment on liability. Plaintiff has submitted three promissory notes evidencing loans made to defendants and evidence of their default. Pursuant to the Guaranty, each of the defendants are jointly and severally liable on the Notes. Summary judgment on damages, however, cannot be granted since the record on this motion does not clearly establish the amount owed.” The Court ordered an inquest on damages “to be held before a Special Referee, who shall account for the outstanding principal, interest, and fees and all amounts paid on the Notes to date.”

Had the amount of damages been clearer, a hearing would not have been necessary. In any event, this procedure saved the plaintiff a lot of time and money usually associated with litigation.

Dictionary Used to Interpret Contract

Dictionary Used to Interpret Contract

In Cristo v. The Incorporated Village of Lawrence, a Court granted the plaintiffs summary judgment on the issue of liability against the Village of Lawrence, concluding that the Village breached a license agreement by wrongfully terminating it, and refusing to return plaintiffs’ security deposit.

The parties had entered into an agreement granting plaintiffs an exclusive license to maintain a restaurant and food concession on the grounds of the Lawrence Yacht & Country Club. Superstorm Sandy severely damaged the property and the Village notified plaintiffs that as a result of the damage it would rebuild the clubhouse, and was electing to terminate the agreement pursuant to provisions of the license. That provision also referred to as the “fire clause” and “termination clause,” provided:

If the Park House Building containing the main dining room and bar and other areas of the Club shall be partially damaged by fire or other insured casualty, such damages shall be repaired by and at the expense of Village from and to the extent of the proceedings of fire insurance received. If the Village, in its sole discretion, shall determine not to restore and/or rebuild the same, or that the said building shall be so damaged or destroyed by fire or other insured casualty that the Village shall determine to demolish it and/or to rebuild it, then or in any such events the Village may, within ninety (90) days after such damages occur, give Licensee written notice of such decision and thereupon the term of this Agreement shall expire at the end of the third day after such notice is given. In such event, the Licensee shall vacate the licensed premises and surrender the same to the Village upon the expiration of term. If the Licensee shall not be in default under the terms of this Agreement, then upon such termination Licensee’s liability for any further license fee or additional license fee not then due and owing shall cease as of the day of such termination, but Licensee shall remain responsible for any license fee or additional license fees due and owing as of the date of such termination. If the Village shall determine that the licensed premises have sustained damage or partial destruction to the point where the same cannot be fully or sufficiently utilized by licensee, but that this Agreement should not terminate, an abatement of the license fee and additional license fee will be made as determined by the Village.

Plaintiffs argued there was no rebuild. Rather, the Village merely made repairs and restorations. A principal of plaintiffs submitted an affidavit stating that “he owns his own construction company, has been in the construction business for over thirty years, is a licensed contractor with the City of New York Consumer Affairs, and is a licensed general contractor in Nassau County, State of New York.” He stated that there was no “rebuild” of the structure and referred to documentation “including proposals for work for flood damage restoration, and invoices detailing the description of materials and services, and submits that repairs to moldings, paint jobs, replacement of appliances, carpeting, fixtures, electrical wiring, and the installation of new wooden dance floor” that do not constitute a “rebuild,” but rather merely constitute “renovations, restorations and repairs.” Additionally, while the Village replaced drywall up to four feet in height, and plaintiffs argued that “the removal and replacement of sheetrock walls did not affect the stability of the structure of the Main Clubhouse as drywall or sheetrock is never used as a structural component nor are the metal studs which were removed and replaced used for securing the sheetrock in limited areas related to the structural integrity of the building.”

The case turned on whether there was a “rebuild” within the meaning of the license. The Court stated that when interpreting an agreement, “contractual terms will be given their plain meaning where the intention of the parties is clearly and unambiguously set forth. In cases of contract interpretation, it is well settled that ‘when parties set down their agreement in a clear complete document, their writing should…be enforced according to its terms.’ The ‘[i]nterpretation of an unambiguous contract is a matter for the court.’ Unambiguous provisions of a contract must be given their plain and ordinary meaning, and the interpretation of such provision is a question of law for the court. Words and phrases used in an agreement must be given their plain meaning and it is common practice for courts to refer to the dictionary in determining plain meaning.”

Turning to The American Heritage Dictionary, 5th edition, 2011, the Court found that “Repair” is defined as “To restore to sound condition after damage or injury.” And that “Rebuild” is defined as “to build again” or “to make extensive structural repairs on.” “Restore” is defined as “To bring back into existence or use” or “To bring back into an original or normal condition.”

The Court concluded that the terms of the license agreement, specifically the fire clause, were clear and unambiguous and that plaintiffs made a prima facie showing of entitlement to summary judgment on the contract breach claim as the village wrongfully terminated the license agreement. “The plaintiffs have demonstrated that the Village performed in construction work on the structure, which did not constitute a ‘rebuild or extensive structural repairs.’”

Plaintiffs were granted summary judgment on the issue of liability against the Village on their claim for contract breach.

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