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Errico v. Concepts In Time LLC

Supreme Court, New York County

April 18, 2013

JAMIE ERRICO, Plaintiff,
v.
CONCEPTS IN TIME LLC and SAUL JEMAL, Individually, Defendants Index No. 116098/10

Unpublished Opinion

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:__

Papers Numbered
Notice of Motion and Affidavits Annexed.................................... 1
Affirmations in Opposition.......................................................... 2, 3
Notice of Cross-Motion and Affidavits Annexed........................ 4
Replying Affidavits...................................................................... 5, 6
Exhibits...................................................................................... 7

Plaintiff commenced the instant action against defendants Concepts in Time LLC ("Concepts") and Saul Jemal ("Mr. Jemal") alleging, among other things, employment discrimination, hostile work environment, retaliation, breach of contract and unpaid wages. Defendants now move for an Order pursuant to CPLR § 3212 for summary judgment dismissing the complaint. Plaintiff cross-moves for partial summary judgment on her sixth cause of action for unpaid wages. For the reasons set forth below, defendants' motion is granted in part and denied in part and plaintiffs cross-motion is denied.

The relevant facts are as follows. Concepts is a small, privately-owned company, engaged in the wholesale distribution of watches and home decor items. Plaintiff, a Catholic woman, was hired by Concepts in 2002 as the Vice President of Sales pursuant to an employment agreement dated June 10, 2002. During her employment, plaintiff s job duties included, among other things, running Concepts' watch division, opening new accounts, generating sales and overseeing ordering and shipping. In or around 2005, Mr. Jemal had a falling out with his partner and thus, bought out the partner's interest in the company. Defendants allege that at that time, plaintiffs employment contract was renegotiated (the "2005 employment agreement"). The 2005 employment agreement provided that it could be terminated by either party for any reason with 90-days' notice and that if plaintiff resigned, she would be prohibited from selling watches for 90 days.

In or around 2005, Concepts' watch division had revenues representing approximately 40% of Concepts' business. By 2008, however, the watch business allegedly took a severe downturn and the sale of watches represented less than 15% of Concepts' business. Thus, in January 2009, Concepts sold the watch division to a company known as Concept Watch Company, LLC ("CWC"). CWC was owned and operated by Morris and Jack Beyda and Nathan Levy, who had been a sales representative at Concepts in the watch division. Pursuant to the agreement by which CWC acquired the watch division, CWC assumed certain of Concepts' contractual obligations, including plaintiffs 2005 employment agreement.

In September 2009, the Beydas were allegedly struggling and lacked the resources to continue with the watch business and pay their obligations to Concepts. The Beydas requested that Mr. Jemal acquire CWC's assets and while Mr. Jemal agreed, he did not assume all of CWC's debts or liabilities. In particular, defendants allege that Concepts did not assume plaintiffs existing 2005 employment agreement. Following conversations with plaintiff, the Beydas agreed that CWC would be responsible for any salary owed to plaintiff. Plaintiff later filed suit against the Beydas and CWC for breach of the 2005 employment agreement but ultimately settled her claims.

On September 24, 2009, Mr. Jemal sent plaintiff a new job offer and engaged in discussions regarding the terms of a new contract (the "2009 employment agreement"). Defendants allege that the 2009 employment agreement was freely negotiated but plaintiff contends that she signed the agreement under duress and without consideration. However, it is undisputed that plaintiff signed the 2009 employment agreement with the help of an attorney on October 13, 2009. The 2009 employment agreement did not contain a 90-day notice before termination clause but it included a non-solicitation of business clause and the condition that plaintiff would not solicit any of Concepts' customers for a period of 180 days if she was fired or if she resigned. Additionally, the 2009 employment agreement stated "This agreement is the only employment agreement in effect between [Concepts] and [plaintiff]." Further, ...


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