SCAN
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
COUNTY OF NASSAU
PRESENT:
HON. IRA B. W ARSHA WSKY
Justice.
TRIALIIAS PART 16
LAURA CANDELA
Plaintiff
INDEX NO. : 000328/2004
MOTION DATE: 08/19/2005
MOTION SEQUENCE: 009
-against-
BYRON CHEMICAL COMPANY , INC., ESTATE
OF CHRISTO BYRON PAPPAS and GEORGE LISS,
Defendants.
The following papers read on this motion:
Annexed.................................................................................
Affirmation in Support of Motion to Sever of Edward M. Ross , Esq. .....................................................
Affrmation in Support of Motion to Sever of John H. Bamosky, Esq. ...................................................
Affrmation of Donald B. MacDougall in Support of Plaintiff Laura Candela s Opposition to
Defendant Byron Chemical Company, Inc.'s Motion to Sever & Exhibits Annexed................................
Memorandum of Law in Opposition to Byron Chemical Company, Inc.'s Motion to Sever
Plaintiff Laura Candela s Constructive Discharge Claim from the Candela Action and have the
Issue Tried in the Byron Action................................................................................................................
Notice of Motion, Affidavit & Exhibits
This motion by defendant Byron Chemical Company, Inc. for an order pursuant to
CPLR
603 severing for trial the fourth cause of action in the amended complaint for a
constructive discharge, and directing that it be tried with another action pending in this
court between Byron Chemical Company, Inc , as plaintiff, and Laura Candela, as
defendant , under Index No. 000744/2005 is denied.
The gravamen of plaintiff s complaint is that she did not receive proper mandatory
bonuses from 1993 to 2003 on Byron s " gross profits. "
She
alleges she learned ()fthe
deficiencies after Pappas ' death when she saw two sets of financial books for the
company. All other claims derive from this principle theory of under payment and
deception.
Plaintiff delayed closing on the purchase of her half of Pappas ' shares in Byron on
December 22 ,
2004. She suspected that the improprieties and frauds perpetrated by
Pappas , including filing fraudulent tax returns , would distort the book value of Byron and
the price asked for the shares. On December 29 2004 she resigned " involuntarily" due to
a hostile work environment.
A severance of certain claims for trial is appropriate to avoid prejudice to a party.
CPLR
603.
Addressed seriatum , Byron seeks severance of the trial of plaintiff s claim for
constructive discharge to save defendants Liss and Estate of Pappas from having to
paricipate in a second trial on issues which don t concern them. The argument is not
helpful. Liss is no longer a
defendant in this action , see decision on motion sequence
#006 , and the Estate of Pappas is integral to the proof. It was the alleged financial
subterfuge of Pappas while fostering a relationship with Candela and Byron that gave rise
to all claims , right or wrong, in this action.
Second , the factual allegations underlying plaintiffs
claim for constructive
discharge are claimed to be " separate and remote " from the factual allegations underlying
her claim of breach of the Employment Agreement, the Shareholder s Agreement and
fraud. This is wrong. Movant has not shown that Candela would not have resigned, nor
would not have felt the need to resign , absent any of the factual underpinnings of her
amended complaint. It is not realistic to propose that plaintiff s feeling that she was
cheated of her bonus for ten years had nothing to do with ending her employment
relationship at Byron. Although introduced late into this law suit (Candela claimed a
constructive discharge for the first time in the Byron Action , a year after bringing suit), it
may be explained by the circumstances. She is now enjoined from competing in certain
respects with Byron in the regulatory field but no date has been set for trial of the Byron
action. .
It is necessary to review and consider this action as a whole. It is about fraud as
much as it is about breach of contract and for this reason plaintiff's resignation from
employment cannot be viewed as an isolated event. She herself states that it is " the direct
result of Byron s repeated. . . breaches of my Executive Employment Agreement. . .
Candela letter dated December 29, 2004.
As a final matter , the court , on its own motion , strikes plaintiff's claim for punitive
damages in relation to the fourth cause of action. First , this is a private dispute between
individuals , and it is the law in this State that punitive damages are not available in a private
dispute over money where the dispute does not warrant punishment or deterrence of further
malicious acts beyond the concerns of the individuals.
Rupert v Sellers, 48 A.D. 2d 265 (4 Dept
1975). Second, the parties themselves have agreed to a certain leveling of the playing
field by the provision in the Shareholder s Agreement for damages against the one who
fails to uphold his or her obligation in this small corporation in the form of a shift of legal
fees to the losing party.
Dated: September
7, 2005
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