In re the Claim of Clum

May 8, 2008
Versions:51 A.D.3d 1171
857 N.Y.S.2d 791
Melbourne

The doctrine of promissory estoppel may be asserted in a variety of different contexts, and the measure of damages to be obtained may differ as well, depending on the factual underpinnings supporting the doctrine (see e.g. Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 824 [1994], cert denied 513 U.S. 1084 [1995] [contrasting the remedies available when the doctrine is invoked as a substitute for consideration and when invoked to avoid injustice where the statute of frauds bars enforcement of an oral agreement]; Restatement [Second] of Contracts § 90, Comment d [noting that in promissory estoppel cases “full-scale enforcement by normal remedies is often appropriate” but “relief may sometimes be limited to restitution or to damages or specific relief measured by the extent of the promisee‘s reliance rather than by the terms of the promise“]). Here, we are called upon to decide solely what type of damages are potentially available to plaintiff in this action, where it has been determined that no contract or meeting of the minds was ever formed, because the parties failed to agree to essential terms (see 31 AD3d at 985). Plaintiff is not asking Supreme Court to enforce a contract that would otherwise be enforceable but for lack of consideration (cf. Restatement [Second] of Contracts § 90, Comment a, Illustration 1]), but to provide a remedy where the underlying agreement fails for indefiniteness (see 4 Lord, Williston on Contracts § 8:6 [4th ed]). The doctrine is not being used “defensively in support of contract rights” but, instead, to create “a new right in the interests of justice” with relief designed to achieve equity (Geneva Pharms. Tech. Corp. v. Barr Labs., Inc., 2003 WL 1345136, *4 [SD NY 2003]). Under these circumstances, plaintiff “is not entitled to the benefit of the bargain because there was no bargain” (id.; see Restatement [Second] of Contracts § 90, Comment d, Illustrations 8, 12). Accordingly, we hold that Supreme Court correctly limited the proof to those expenses that plaintiff incurred in relying on defendant‘s alleged promise.

Cardona, P.J., Mercure, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, with costs.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 20, 2007, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a crane technician, began working for the employer in May 1999. In March 2006, he received a verbal warning after he requested product literature from a supplier for a customer. At the time, claimant was advised that he was not to engage in sales functions and that any sales-related requests were to be referred to the employer‘s sales manager or claimant‘s supervisor. Thereafter, in December 2006, claimant again contacted a supplier on behalf of a customer, this time inquiring as to whether a particular demonstration unit would be available for the customer‘s use. When the employer learned of this activity, it terminated claimant‘s employment and subsequently disputed claimant‘s application for unemployment insurance benefits. A hearing ensued, following which the Administrative Law Judge (hereinafter ALJ) determined that “[w]hile the claimant‘s conduct. . . was a technical violation of the employer rules, the claimant‘s intent was to further the employer‘s interest and not do anything detrimental to those interests.” Accordingly, the ALJ concluded that although claimant‘s actions justified his discharge, they did not rise to the level of misconduct that would disqualify him from receiving benefits. The Unemployment Insurance Appeal Board reversed the ALJ‘s decision and denied claimant benefits and, upon reconsideration, adhered to that ruling. Claimant appeals, and we reverse.

Conduct that is “detrimental to the employer‘s interest or in violation of a reasonable work condition” constitutes misconduct and will disqualify an employee from eligibility for unemployment insurance benefits (Matter of De Grego [Levine], 39 NY2d 180, 184 [1976]; see Matter of Maxwell [Nigro Cos.—Commissioner of Labor], 305 AD2d 954, 954-955 [2003], lv denied 100 NY2d 511 [2003]; Matter of Marten [Eden Park Nursing Home—Commissioner of Labor], 255 AD2d 638, 638 [1998]).* Importantly, absent misconduct, an employee “will be entitled to benefits despite the fact that the employer may have fired the employee for valid reasons” (Matter of De Grego [Levine], 39 NY2d at 184).

Here, claimant was previously instructed to leave sales functions to the sales department, however, he violated those instructions by making an informational inquiry to the supplier on behalf of the customer. Nonetheless, it is uncontroverted that, in this instance, claimant‘s conduct was limited to one telephone call to the supplier inquiring only about the availability of the free demonstration unit. Upon this record, we cannot conclude that claimant‘s conduct was detrimental to the employer‘s interests. The employer stated that it lost no money or customers as a result of claimant‘s action and, in fact, conceded that claimant was probably trying to be helpful. Indeed, the record contains no evidence that would support a contrary conclusion. Nor did claimant‘s conduct violate a reasonable work condition (see e.g. Matter of Grant [Commissioner of Labor], 32 AD3d 563 [2006]; Matter of Maxwell [Nigro Cos.—Commissioner of Labor], 305 AD2d at 954; Matter of Greenberg [Commissioner of Labor], 286 AD2d 794 [2001]). Accordingly, under the circumstances of this case, claimant‘s conduct did not rise to the level of disqualifying misconduct.

Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court‘s decision.

Cardona, P.J.

Mercure, Spain, Malone Jr. and Kavanagh, JJ.

thin instructions states to convert the *main* opinion, defined as the one with a complete case caption and full opinion body. The first document on page 1171 is an end of an opinion. The second case starting at the bottom of 1171 and ending on 1173 (Clum v. All-Lifts) is a full opinion. The third case (Kha‘Sun Creator Allah v. Leclaire) starts at the bottom of 1173 but is cut off. Therefore, the “Clum” case is the one to convert. However, the first text on 1171 is the conclusion of an unnamed case which I should skip per instructions. I will output the Clum case. Wait, looking at the instruction “Multi-Opinion Documents: If the document contains multiple opinions... convert only the MAIN opinion... Skip partial content from a previous case that appears at the beginning of the document.” The Clum case starts with a caption: “In the Matter of the Claim of DAVID J. CLUM...” so it is the “Main” opinion to be formatted. I will proceed with the Clum case. RE-EVALUATING: The screenshot for page 1 starts with the end of a previous case (about promissory estoppel). Then it has a case caption for Clum. I will skip the promissory estoppel text and start with the Clum case caption information. Case Info for Clum: Name: In the Matter of the Claim of DAVID J. CLUM, Appellant. ALL-LIFTS, INC., Respondent; COMMISSIONER OF LABOR, Respondent. Short Name: Clum v. All-Lifts, Inc. Citation: 857 NYS2d 791 (which actually looks like a reporter cite for Clum). Court: Supreme Court, Appellate Division, Third Department, New York Date: The text says the Appeal Board decision was filed July 20, 2007. The header on the page is missing but the pagination is 1171-1173. Standard N.Y. App. Div. reports. Checking external context or identifying court/date from text: The concurring judges are Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ. which matches N.Y. App. Div. 3rd Dept around 2008. Let‘s double check if I should include the first part. “Skip partial content from a previous case that appears at the beginning of the document.” Yes, skip the promissory estoppel part. Wait, the prompt asks for “THE provided legal document“. Usually, if there is a case caption in the middle, that‘s the one. Page 1 bottom: “In the Matter of the Claim of DAVID J. CLUM...” This case continues to page 1173. I will convert the Clum opinion. One detail: The footnote on page 1172 is numbered with an asterisk (*). Final check on Case Metadata for Clum: Case Name: In the Matter of the Claim of DAVID J. CLUM, Appellant. ALL-LIFTS, INC., Respondent; COMMISSIONER OF LABOR, Respondent. Short Name: Clum v. All-Lifts, Inc. Docket: Not provided in text. Court: N.Y. App. Div. (derived from judges and format) Date: 2008-05-15 (Standard date for this citation 51 AD3d 1171 / 857 NYS2d 791). Since date isn‘t in the provided text, I will use the date found in external lookup or the closest available (the appeal board date is 2007). Actually, per instructions: “Preserve formatting exactly (dates, case name capitalization)... Omit elements without data“. If the date isn‘t on the page, I shouldn‘t hallucinate it. But often dates are in the header. The header is blacked out. I‘ll omit if not found. Wait, the instructions say “Omit elements without data“. I will check if any date is present. July 20, 2007 is the date of the decision being appealed. I will look at the provided OCR/Screenshot. I don‘t see the decision date. I will omit it. Wait, I will look at the citation: [857 NYS2d 791]. I‘ll use that as the citation. The shortName attribute for “In the Matter of the Claim of David J. Clum, Appellant. All-Lifts, Inc., Respondent; Commissioner of Labor, Respondent” would be “Clum v. All-Lifts, Inc.” (Omit “In the Matter of the Claim of“, “Appellant“, “Respondent“). One more thing: The footnote is at the bottom of page 1172. It contains an asterisk. Let‘s start. (Self-correction: The prompt says “If input is not a legal opinion, return only: null“. This is a legal opinion.) I will skip the first paragraph on page 1171 as it is the end of another case. I will skip the last paragraph on page 1173 as it is the beginning of another case. Wait, looking at the Clum case again. It starts on p. 1171 and ends on 1173. The Judges are Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ. Citation normalization: (Matter of De Grego [Levine], 39 NY2d 180, 184 [1976]) -> Matter of De Grego [Levine], 39 NY2d 180, 184 [1976] (see Matter of Maxwell [Nigro Cos.—Commissioner of Labor], 305 AD2d 954, 954-955 [2003], lv denied 100 NY2d 511 [2003]) -> see Matter of Maxwell [Nigro Cos.—Commissioner of Labor], 305 AD2d 954, 954-955 [2003], lv denied 100 NY2d 511 [2003] (Matter of Marten [Eden Park Nursing Home—Commissioner of Labor], 255 AD2d 638, 638 [1998]) -> Matter of Marten [Eden Park Nursing Home—Commissioner of Labor], 255 AD2d 638, 638 [1998] (Matter of De Grego [Levine], 39 NY2d at 184) -> Matter of De Grego [Levine], 39 NY2d at 184 (see e.g. Matter of Grant [Commissioner of Labor], 32 AD3d 563 [2006]) -> see e.g. Matter of Grant [Commissioner of Labor], 32 AD3d 563 [2006] Note: Page numbers in OCR often have hyphenated line breaks like “disquali- fied“. I must rejoin them. Let‘s begin. Case name: IN THE MATTER OF THE CLAIM OF DAVID J. CLUM, Appellant. ALL-LIFTS, INC., Respondent; COMMISSIONER OF LABOR, Respondent. Short name: Clum v. All-Lifts, Inc. Citation: 857 NYS2d 791 Wait, looking at p. 1171, the citation 857 NYS2d 791 is in brackets after the caption. I‘ll include it in class=“midpage-citation“. Court: NY App. Div., 3rd Dept. The judges are Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ. Structure:
...

Case caption (if not in metadata)

Opinion body

... ...
...
Wait, the caption block “In the Matter of the Claim of...” is at the bottom of 1171. The text of the opinion for this case starts on p. 1172. Wait, I should check if the first part (promissory estoppel) is actually a separate case. Yes, the signature for that case is “Cardona, P.J., Mercure, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, with costs.” This confirms it‘s the end of a prior case. I will skip it. I will start with the caption of Clum on p. 1171. Wait, if I skip the caption because it‘s in Case Information, the body starts on p. 1172. Actually, the instructions say: “Include ALL content before the main opinion text... syllabus... headnotes... attorney listings... amicus curiae... any other prefatory material.” The caption “In the Matter of the Claim of David J. Clum...” followed by [857 NYS2d 791] is prefatory material. The text on p. 1172 “Appeal from a decision...” is the start of the opinion. Let‘s refine. Case Info: ShortName: Clum v. All-Lifts, Inc. Citation: 857 NYS2d 791 Court: N.Y. App. Div. (Third Dept) Document conversion: 1. Caption/Prefatory info on p. 1171. 2. Body on p. 1172. 3. Body on p. 1173. 4. Signature on p. 1173. Rejoin hyphens: “unemploy- ment” -> “unemployment” “miscon- duct” -> “misconduct” “disquali- fied” -> “disqualified” “supervi- sor” -> “supervisor” “detri- mental” -> “detrimental” “dis- charge” -> “discharge” “disquali- fying” -> “disqualifying” “miscon- duct” -> “misconduct” (again) “unemploy- ment” -> “unemployment” (again) “func- tions” -> “functions” “avail- ability” -> “availability” “rea- sonable” -> “reasonable” “de- cision” -> “decision” Let‘s code. One detail: “Matter ofMarten” in OCR is “Matter of Marten“. “NYS2d492” in OCR on p 1173 is for the *next* case. “NYS2d 791” on p 1171 is for Clum. The date is not found. I‘ll omit the attribute or use known year if identifiable. Since I cannot see a date in the text, and it‘s blacked out in the header, I will omit it to be safe, or if I can clearly see 2008 in the 857 NYS2d reporter, I might, but instructions say “Preserve formatting exactly... Extract metadata here, don‘t repeat in body“. Actually, the OCR for p1 shows “29 F3d 821, 824 [1994]“. Clum‘s cite is [857 NYS2d 791]. Looking at the date of the decision being appealed (July 20, 2007), the decision is likely 2008. But I‘ll stick to what‘s on the page. One problem: the citation [857 NYS2d 791] on page 1171 has a dash/marker “—” after it. Page 1173 has the beginning of another case. I skip it. Final check on page breaks: Page 1171 ends with the bracketed citation. Page 1172 starts with “Appeal from a decision...” Page 1172 ends with “fired the“. Page 1173 starts with “employee for valid reasons“. Wait, p 1172 ends with “fired the“. p 1173 starts with “employee for valid reasons“. The mid-sentence break: “...fired the employee...” Wait, looking at Screenshot for page 2, the last line is “...employer may have fired the“. Screenshot for page 3 starts with “employee for valid reasons“. Yes. Let‘s do this. ```html

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 20, 2007, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a crane technician, began working for the employer in May 1999. In March 2006, he received a verbal warning after he requested product literature from a supplier for a customer. At the time, claimant was advised that he was not to engage in sales functions and that any sales-related requests were to be referred to the employer‘s sales manager or claimant‘s supervisor. Thereafter, in December 2006, claimant again contacted a supplier on behalf of a customer, this time inquiring as to whether a particular demonstration unit would be available for the customer‘s use. When the employer learned of this activity, it terminated claimant‘s employment and subsequently disputed claimant‘s application for unemployment insurance benefits. A hearing ensued, following which the Administrative Law Judge (hereinafter ALJ) determined that “[w]hile the claimant‘s conduct. . . was a technical violation of the employer rules, the claimant‘s intent was to further the employer‘s interest and not do anything detrimental to those interests.” Accordingly, the ALJ concluded that although claimant‘s actions justified his discharge, they did not rise to the level of misconduct that would disqualify him from receiving benefits. The Unemployment Insurance Appeal Board reversed the ALJ‘s decision and denied claimant benefits and, upon reconsideration, adhered to that ruling. Claimant appeals, and we reverse.

Conduct that is “detrimental to the employer‘s interest or in violation of a reasonable work condition” constitutes misconduct and will disqualify an employee from eligibility for unemployment insurance benefits (Matter of De Grego [Levine], 39 NY2d 180, 184 [1976]; see Matter of Maxwell [Nigro Cos.—Commissioner of Labor], 305 AD2d 954, 954-955 [2003], lv denied 100 NY2d 511 [2003]; Matter of Marten [Eden Park Nursing Home—Commissioner of Labor], 255 AD2d 638, 638 [1998]).* Importantly, absent misconduct, an employee “will be entitled to benefits despite the fact that the employer may have fired the employee for valid reasons” (Matter of De Grego [Levine], 39 NY2d at 184).

Here, claimant was previously instructed to leave sales functions to the sales department, however, he violated those instructions by making an informational inquiry to the supplier on behalf of the customer. Nonetheless, it is uncontroverted that, in this instance, claimant‘s conduct was limited to one telephone call to the supplier inquiring only about the availability of the free demonstration unit. Upon this record, we cannot conclude that claimant‘s conduct was detrimental to the employer‘s interests. The employer stated that it lost no money or customers as a result of claimant‘s action and, in fact, conceded that claimant was probably trying to be helpful. Indeed, the record contains no evidence that would support a contrary conclusion. Nor did claimant‘s conduct violate a reasonable work condition (see e.g. Matter of Grant [Commissioner of Labor], 32 AD3d 563 [2006]; Matter of Maxwell [Nigro Cos.—Commissioner of Labor], 305 AD2d at 954; Matter of Greenberg [Commissioner of Labor], 286 AD2d 794 [2001]). Accordingly, under the circumstances of this case, claimant‘s conduct did not rise to the level of disqualifying misconduct.

Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ., concur.

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court‘s decision.

``` Wait, “Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ., concur.” and “Ordered that...” are usually part of the signature/disposition block in NY reports. Also, I need to make sure I rejoin words like “can-not” which appears on p 1173 line 1. Actually it is “can- not” with a space in OCR. I‘ll make it “cannot“. Wait, p 1173 line 1 “not conclude...” Wait, p 1172 ends with “not conclude that claimant‘s conduct was detrimental to the“. No, p 1172 ends with “fired the“. P 1173 starts with “employee for valid reasons“. Wait, the OCR says “can- not” on p 1173? No, let me look at the screenshot for p 3. “not rise to the level of disqualifying misconduct.” (bottom of first paragraph). Let‘s re-read carefully. Page 1172 bottom: “...the employer may have fired the” Page 1173 top: “employee for valid reasons” Yes. Wait, I missed the footnote marker on page 1172. It is an asterisk (*). I will use `n=“*“`. No, the instructions say `X`. I‘ll use `n=“*“` if that‘s what‘s there. Usually they are integers, but New York cases often use asterisks. I will use `n=“*“`. Wait, p 1173: “Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ., concur.” “Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court‘s decision.” This is the end of the Clum case. One correction: `39 NY2d at 184` -> cite=“39 N.Y.2d 180” (the start page). Wait, cite for `305 AD2d at 954` should be “305 A.D.2d 954“. Cite for `286 AD2d 794` -> “286 A.D.2d 794“. Citations to Law: None observed in Clum (except references to Restatements and Treatises which are not ``). Oh wait, “CPLR article 78” is in the *next* case. Wait, Clum doesn‘t have any ``? Wait, “Unemployment Insurance Appeal Board” is an agency, not a law. Okay. Wait, I should check the OCR for “of” on line 16 of p 1173. “...Matter of Greenberg [Commissioner of Labor], 286 AD2d 794 [2001]). Accordingly, of under...” The OCR says “Accordingly, of under“. Let‘s look at the screenshot for p 3. “...286 AD2d 794 [2001]). Accordingly, under...” The “of” is a hallucination in the OCR from the line above. I must follow the screenshot. Wait, line 15: “...[Commissioner of Labor], 286 AD2d 794 [2001]). Accordingly,” Line 16: “under the circumstances...” The OCR says “...2001]). Accordingly, of under...” The “of” appears at the end of line 15 in the OCR: “[Commissioner Labor], 286 AD2d 794 [2001]). Accordingly, of“. Actually, in the screenshot, the “of” is from the line above (“Commissioner of Labor“). I‘ll follow the screenshot. Screenshot p 3: “...Matter of Greenberg [Commissioner of Labor], 286 AD2d 794 [2001]). Accordingly, under the circumstances of this case, claimant‘s conduct did not rise to the level of disqualifying misconduct.” Yes. Wait, what about the first part of 1171? It is a snippet of another case. I skip it. Caption for Clum starts on 1171. One more thing: the citation for Clum on 1171 is “[857 NYS2d 791]—” The dash is likely a separator. I‘ll omit it from the cite attribute but maybe keep in text? The instructions say “Extract metadata here, don‘t repeat in body“. So the caption block doesn‘t appear in the body. One detail: the ALJ quote has an ellipsis: `“[w]hile the claimant‘s conduct. . . was a technical violation...“` OCR: `“...conduct. . . was...“` I will preserve the spaces if they are in the screenshot. They are. The footnote on p 1172: `* To the extent that our prior cases have articulated a different standard or` ... `followed.` Rejoin “fol- lowed” -> “followed“. One more check on cite pinpoint: `39 NY2d at 184` -> `pinpoint=“184“` `305 AD2d at 954` -> `pinpoint=“954“` `286 AD2d 794 [2001]` -> No pinpoint, just volume and page. Wait, the prompt says: “Single Opinion: For multi-opinion documents, convert only the first opinion.” Wait, “convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” Clum is the first full opinion. One thing: The citation `[857 NYS2d 791]` is in brackets in the caption. Case Information:

[857 NYS2d 791]

Let‘s do this.

Notes

*
To the extent that our prior cases have articulated a different standard or indicated that an employee‘s conduct must be willful and wanton in order to rise to the level of disqualifying misconduct, those cases should not be followed. To the extent that our prior cases have articulated a different standard or indicated that an employee‘s conduct must be willful and wanton in order to rise to the level of disqualifying misconduct, those cases should not be followed.