it Partenope, Cherry Creek, or MGS Lex, he remained a member of the same Plan. (Tr. at 41).
24. Although MGS Lex paid the premiums on behalf of all of the defendant companies, Aingorn wrote the premium check to Blue Cross from MGS Lex and would then break the bill down in order to allocate the expense to the various companies proportionate to that company's portion of the total bill. The companies would then reimburse MGS Lex for their share. (Tr. at 143; Plaintiff's Ex. 10).
25. In 1991 while plaintiff was still working for one of the Maraolo stores, plaintiff was diagnosed with diverticulitis, an inflammation of the large intestines. (Tr. at 80, 217). As a participant in defendants' Plan, Carner filed claims with Blue Cross and received reimbursements. (Tr. at 54, 81).
26. Defendants contend that in or about mid-February 1992, Ruggiero, Carner's superior at MGS Lex, met with Aingorn and voiced his desire to dismiss Carner or to offer him a different position in the company due to Carner's poor job performance. (Tr. at 130). In the event that Carner was terminated, Ruggiero and Aingorn agreed that Carner would be given six weeks of severance pay, three weeks of vacation time, and coverage of his health insurance until the end of May. (Tr. at 30).
27. The parties stipulated that Carner was terminated in 1992. (Tr. at 30). However, the parties disagreed on the month and date when plaintiff was actually terminated. After his termination, plaintiff was given severance pay, accrued vacation pay and received reimbursement for moving expenses. (Tr. at 76). There was also a dispute over whether plaintiff received all of the severance pay he was promised. (Tr. at 44-45, 76, 133-134). Carner was promised and received coverage under the Plan until May 31, 1992. (Tr. at 30).
28. The parties agree that the meeting where Carner was terminated was held at defendants' Fifth Avenue office and that Aingorn, Ruggiero, and Esther Gabrielides ("Gabrielides"), an employee of defendant MGS Lex, were present at the meeting. (Tr. at 41, 72, 131).
29. Parties also agree that Carner was told that the company was not happy with his job performance and that he was being fired. (Tr. at 42). There was testimony that prior thereto Carner was seriously considering resigning (Tr. at 42-43, 74) had given notice to his landlord and was planning to move to California at the end of March, 1992. (Tr. at 73). Carner testified that he was reimbursed for his moving expenses to California by defendants' payment of the bill. (Tr. at 46).
30. As noted above, plaintiff and defendants disagree as to exactly when Carner's discharge occurred. They also disagree as to what was said at the discharge meeting. Plaintiff claims that he was discharged on March 3, 1992. (Tr. at 41). Defendants claim that the discharge meeting occurred in mid-February but do not specify a date. (Tr. at 131, 155, 176).
31. Defendants claim that at the meeting, Carner was advised by Aingorn of his right to continue to participate in the Plan for 18 months provided that he pay the monthly premium of $ 252.30 to the company. (Tr. at 133, 156, 176-177). Defendants' witnesses also testified that when plaintiff was orally advised of his right to continue coverage, Carner declined to participate in the Plan and said that he did not want anything from the company because his wife's family would take care of him. (Tr. at 157). Carner, however, testified that he was not told that he could continue to participate in the Plan at the meeting. (Tr. at 44).
32. Ruggiero testified that he spoke to Carner on February 20, 1992, several days after the discharge, wished him well and again reminded him that he could continue to participate in the Plan. Ruggiero testified that he wrote him a note that day to confirm the discussion which was typed, dated and mailed by Gabrielides to Carner's last known address in New Jersey.
(Tr. at 158, 180-181). Defendants contend that they never received a response to the letter from Carner. (Tr. at 160). Defendants testified that the records and files maintained in the corporate offices of MGS Lex reveal that Carner neither wrote the company regarding continuation of his health insurance nor sent any money for payment. (Tr. at 134, 160).
33. As a result, Aingorn testified that he crossed Carner's name off the premium statement for the Blue Cross bill dated May 12, 1992, which covered the premium for the period June 1, 1992 to July 1, 1992. On the back of the premium statement, next to Carner's crossed off name, were the words, written by Aingorn, "Left Group" under the column "Explanation or Changes." (Joint Ex. 9). Carner's premium in the amount of $ 252.31 for the month of June was deducted from the total cost and the adjusted amount less $ 756.93 was paid to Blue Cross. The names and social security numbers of two other employees who left the group at the same time were taken off the Plan in the same manner as Carner's. The reason for their deletion from the policy was given and a deduction of their share of premiums listed on the back of the premium statement with Carner's. Aingorn testified that this was MGS Lex's regular policy with Blue Cross each time an employee left the company. (Tr. at 138-141).
34. Blue Cross acknowledged in a letter, dated November 10, 1993, and through Siemone O'Brien, its witness at trial, that Blue Cross records indicated that Carner was terminated from the Plan on June 1, 1992. (Joint Ex. 12, Infra n. 6; Tr. at 112-15).
35. In regards to the letter from Ruggiero, dated February 20, 1996, Carner testified that he never received the letter and that he never received any other written (or oral) communication about the Plan or his right to continuation coverage. (Tr. at 44).
34. Based on all the evidence, the court finds that the validity of the February 20, 1992 letter is questionable as well as defendants' claim that plaintiff was fired on an unspecified date in mid-February. For the following reasons, the court finds that Carner was discharged on March 3, 1992 as he claimed.
A. Carner testified that he and his wife moved about one week after he was discharged. (Tr. at 76). Defendants did not dispute this fact. Actually, defendants' counsel conceded that plaintiff moved one week after his discharge in both her opening statement and cross-examination of Carner. (Tr. at 11, 77).
B. After his termination, Carner called the company, spoke with Gabrielides, and again informed her that he was moving to California. (Tr. at 177). Gabrielides testified that Carner made this call within a week of his discharge and that she then handed the phone to Ruggiero who allegedly reminded Carner of his right to continuation coverage. (Tr. at 181). Carner, however, testified that the sole topic of the phone conversation with Ruggiero was the arrangements for the payment of the moving expenses. (Tr. at 188). Carner explained that Ruggiero told him to have the moving company bill defendants directly and testified that at no point in the conversation did Ruggiero mention plaintiff's right to continuation coverage. (Tr. at 188).