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LEVINE v. ZERFUSS OFFSET PLATE SERV. CO.

June 30, 1980

KENNETH LEVINE, Plaintiff, against ZERFUSS OFFSET PLATE SERVICE COMPANY, Defendant.


The opinion of the court was delivered by: DUFFY

This diversity action was instituted by Kenneth Levine, a New Jersey resident, against the defendant, Zerfuss Offset Plate Company, a New York corporation, seeking to recover for breach of a written contract of employment. A two-day trial was held before me in May of this year. Based upon the testimony elicited at trial as well as the exhibits received in evidence, the following shall constitute my findings of fact and conclusions of law.

Kenneth Levine is a stripper who at one time worked for Creative Lithographics, Inc. At about the same time, William Zerfuss was also employed by Creative as a stripper-foreman. In late 1973, Creative decided to spin off its offset plate work. To this end, Creative offered to sell its offset business to William Zerfuss. After some negotiations, Mr. Zerfuss agreed to purchase the business and set up the defendant company. Although Zerfuss Offset was a separate legal entity, its main customer remained Creative. For the convenience of Creative, Zerfuss Offset was located in the same building as Creative and, in fact, sublet its space from Creative.

 Sometime during early 1978, the President of Creative, Arthur Meyers, suggested that Zerfuss hire Kenneth Levine as stripper-foreman. Apparently, Zerfuss was in dire need of a stripper-foreman to handle all of Creative's work. As a result of Meyer's suggestion, Levine was hired by Zerfuss in May of 1978 and commenced working immediately. Thereafter, Zerfuss negotiated a contract with Kenneth Levine which was later reduced to writing in August, 1978. A portion of the contract set Levine's salary, his bonuses and established his working hours as 8:00 a.m. to 4:00 p.m. The contract also provided for a stock option whereby Levine could obtain ownership of 50 percent of the defendant corporation. Interestingly, the contract merely provides that Levine will be "engaged to work in the capacity of stripper and stripper foreman."

 Apparently within two weeks after Levine started to work for the defendant in May of 1978, both Arthur Meyers and Salvatore Margarone started to complain to Zerfuss about Levine's performance. Their complaints were to the effect that work was not being completed on time; that work had to be returned for corrections; that Levine did not know the status of work in progress at the Zerfuss plant; and, that Levine was not authoritative with the Zerfuss employees. Both Meyers and Margarone testified as to making these complaints to William Zerfuss. And yet, 8 to 10 weeks after receiving these complaints, William Zerfuss executed the written contract which was prepared for him by his counsel and which is at the heart of the instant suit.

 The evidence showed that during the entire term of his employment, there were complaints about Levine's performance lodged by the officials of Creative as well as by William Zerfuss. There is no doubt that during this period of time, Levine worked as a stripper. The testimony established that stripping entails detailed personal work which, by its nature is difficult to oversee. In addition, when not working as a stripper, Levine functioned as a stripper-foreman. In this capacity, he distributed work to other strippers at Zerfuss and did some checking of their work. His ability to function as a foreman, however, was limited for two reasons.

 First, it was apparent from all the credible testimony that Creative kept the Zerfuss plant very busy. And, at times, the Zerfuss plant did not have the manpower to handle the work. Thus, Kenneth Levine, concededly a top-rate stripper, was often forced to spend much of his day as a stripper to handle the daily stripping work which Creative demanded be completed quickly and competently.

 Moreover, it was also clear from the testimony that when William Zerfuss was at the plant, he would take over as the shop foreman leaving plaintiff to assist with the stripping. Thus, Levine was left to function solely as a stripper when Zerfuss was at the plant.

 In any event, it became increasingly apparent that for whatever reason Levine was not performing to the complete satisfaction of Creative. Finally, in December of 1978, William Zerfuss attempted to shift Levine to the night shift in order to placate Creative. When Levine refused to work at night, he was discharged.

 Generally, an employee who does not work under an agreement for a definite term of employment may be discharged at any time, with or without cause. See, e.g., Buian v. J. L. Jacobs & Co., 428 F.2d 531, 533 (7th Cir. 1970). However, where, as in the case at bar, the employment is for a definite term, an employee may not be discharged by the employer "without a "cause sufficient in law which would justify an employer in discharging an employee.' " Crane v. Perfect Film & Chemical Corp., 38 A.D.2d 288, 329 N.Y.S.2d 32 (1st Dep't 1972) citing, Vogel v. Pathe Exchange, Inc., 234 A.D. 313, 318, 254 N.Y.S. 881, 886 (2d Dep't 1932).

 The contract in issue does not condition the plaintiff's continued employment upon the performance of his duties to the personal satisfaction of William Zerfuss. Nor does the contract impose any express conditions upon plaintiff with respect to the performance of his duties. Indeed, the contract is silent in this regard. It states only that plaintiff's employment shall continue for a term of five years.

 Under these circumstances, plaintiff was required to perform his work satisfactorily. Based upon the totality of credible evidence, I am convinced that Kenneth Levine performed satisfactorily as a stripper and as a stripper foreman insofar as he was permitted to do so by Zerfuss. This is particularly true in view of the fact that the employment contract was entered into after Zerfuss had complete knowledge of Levine's on-the-job performance.

 Furthermore, the incident which apparently triggered Levine's dismissal was his refusal to accept a transfer to the night shift. However, under the express terms of the employment contract, plaintiff was to work only from 8:00 a.m. to 4:00 p.m. He simply could not be compelled to work the night shift and his refusal to do so was clearly justified.

 Finally, it was evident to me from the testimony elicited at trial that it was not William Zerfuss' dissatisfaction with the plaintiff's performance which was at the heart of Levine's discharge, but rather, the dissatisfaction of Arthur Meyers, the President of Creative. It was abundantly clear that although Zerfuss was a separate corporate entity, Creative enjoyed a very influential position with respect to the Zerfuss operation and Meyers was not reluctant to exercise this influence. Not only did Creative act as Zerfuss' landlord, but it also supplied the vast majority of Zerfuss' work. Indeed, without Creative, there would be no Zerfuss. In fact, William Zerfuss testified that if Creative moves out of the building it presently occupies and Zerfuss does not tag along with Creative to a new location, Zerfuss will surely go out of business.

 Thus, I find that Levine's discharge was an unjustified breach of the employment contract and damages must be assessed against Zerfuss.

 Turning now to the question of damages, the contract provides in ...


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