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QUESTION OF FACT WHETHER PLAINTIFF EMPLOYEE WAS TERMINATED (NOT A VIOLATION OF THE AT WILL CONTRACT) OR WHETHER DEFENDANT EMPLOYER VIOLATED THE NO ORAL MODIFICATION CLAUSE.

The First Department, over an extensive two-justice dissent, reversing (modifying) Supreme Court, determined plaintiff employee should not have been granted summary judgment against defendant employer in this action alleging breach of an employment contract.  Although the contract was deemed to have created an at will employment arrangement, Supreme Court held that the “no oral modification” clause was violated when defendant employer modified plaintiff's duties without a written agreement signed by the plaintiff. The First Department found that there was a question of fact whether plaintiff was terminated (not prohibited by the contract), or whether the contract was modified without a written agreement (prohibited by the contract):

“[A]bsent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” ,,, . The presumption can be rebutted by evidence of a limitation on the employer's right to discharge the employee at will … .

The inclusion of the no oral modification clause in the employment agreement does not, in and of itself, suffice to rebut the at-will presumption. While the clause precluded the modification of “any provision” of the agreement without a writing signed by the party against whom enforcement was sought, there is no express provision in the agreement that precluded defendant from terminating plaintiff without cause. However, as Supreme Court found, the no oral modification clause is an enforceable contract term even if the employment was at will  … . * * *

Nevertheless, while the court correctly found that the no oral modification clause was enforceable and barred defendant from unilaterally altering the terms of plaintiff's employment agreement without a writing, issues of fact exist that preclude the granting of summary judgment in plaintiff's favor. These include whether or not defendant terminated plaintiff's employment or merely modified it when it removed plaintiff as president … .  Gootee v Global Credit Servs., LLC, 2016 NY Slip Op 03984, 1st Dept 5-19-16

CONTRACT LAW (QUESTION OF FACT WHETHER PLAINTIFF EMPLOYEE WAS TERMINATED [NOT A VIOLATION OF THE AT WILL CONTRACT] OR WHETHER DEFENDANT EMPLOYER VIOLATED THE NO ORAL MODIFICATION CLAUSE)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER PLAINTIFF EMPLOYEE WAS TERMINATED [NOT A VIOLATION OF THE AT WILL CONTRACT] OR WHETHER DEFENDANT EMPLOYER VIOLATED THE NO ORAL MODIFICATION CLAUSE)/AT WILL EMPLOYMENT (QUESTION OF FACT WHETHER PLAINTIFF EMPLOYEE WAS TERMINATED [NOT A VIOLATION OF THE AT WILL CONTRACT] OR WHETHER DEFENDANT EMPLOYER VIOLATED THE NO ORAL MODIFICATION CLAUSE)

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