173 A.D.2d 86 | N.Y. App. Div. | 1991
OPINION OF THE COURT
Until his retirement in 1986, defendant, a United States citizen, was employed as an engineer by plaintiff at various locations outside the United States. In 1981, Congress enacted the Economic Recovery Tax Act pursuant to which certain individuals employed overseas were not required to pay Federal income tax on all or a portion of their compensation (see, 26 USC § 911). Consequently, plaintiff enacted a tax equalization program (hereinafter TEP) effective January 1, 1983 to "insure that its employees working overseas are not subject to greater/lesser taxation on their company source compensation than they would be if they had earned their base salary and overtime in the United States”. Accordingly, plaintiff notified its employees that an "estimated tax norm” (see, General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781, 782) for those who qualified under 26 USC § 911 "[would] be deducted from the employee’s compensation package”. By letter dated August 25, 1986 plaintiff, after reviewing its records, informed defendant that he owed plaintiff a refund pursuant to the terms of TEP.
Defendant’s contention that he was not subject to plaintiff’s TEP since he was not told that the TEP was a condition of employment is without merit. Clearly, defendant’s employment was terminable at will as he testified at his examination before trial that there was no written contract setting forth his terms of employment. Significantly, defendant admitted receiving the TEP pamphlet in 1982 and knew the program was being implemented and would apply to all of plaintiff’s employees on January 1, 1983. Defendant also admitted that he qualified for the income exclusion, a condition of his employment. Case law dictates that when parties have an employment contract terminable at will, the contract can be modified and different compensation rates fixed without approval of the other party since the dissatisfied party has a right to leave his employment (see, Waldman v Englishtown Sportswear, 92 AD2d 833, 835; see also, Sabetay v Sterling Drug, 69 NY2d 329, 333). Accordingly, we conclude that Supreme Court properly determined that plaintiff could enforce the terms of a modification to the at-will employment contract between the parties.
We also hold that Supreme Court properly determined that neither Labor Law article 6 nor Personal Property Law § 46-e prevent plaintiff from recovery, thereby summarily rejecting defendant’s contention that since he continued to receive his salary during the time at issue, the alleged "refund” owed plaintiff should be labeled as either a deduction
Finally, we hold that defendant has not preserved for our review the issue of whether Supreme Court erred in requesting his tax returns. Since he did not contest the propriety of that request before Supreme Court, he is precluded from objecting on appeal (see, Gunzburg v Gunzburg, 152 AD2d 537, 538).
Casey, Weiss, Levine and Harvey, JJ., concur.
Ordered that the order is affirmed, with costs.