“Highest Paid Employee”, Vacation Pay Claims Dismissed

In Price v. TuneCore, Inc., 2020 NY Slip Op 02284 (App. Div. 1st Dept. April 16, 2020), the court affirmed the dismissal of plaintiff’s (defendant’s former CEO) employment-based claims.

As to plaintiff’s claim regarding his status as the “highest paid employee”, the court explained:

The employment agreement did not give plaintiff the unfettered right to be the highest paid employee, this was only the case unless he “otherwise agreed”. As CEO, plaintiff was responsible for hiring other employees, and he actively encouraged the Board to hire employees at salaries that he knew were higher than his own. By his admitted inaction, knowing these facts, plaintiff waived his right to insist that he be the highest-paid employee.

As to plaintiff’s vacation pay claim, the court held:

Plaintiff’s seventh cause of action seeking compensation for accrued vacation time was also properly dismissed. Plaintiff does not contest that TuneCore remitted payment to him for the unused vacation days that had accrued during the year of his termination in 2012. Plaintiff’s assertion that the check for the vacation time was sent to his late attorney’s office after he had died, and that he never received it, is contrary to his deposition testimony, and was properly rejected (Tse Chin Cheung v G & M Hardware & Elec., 249 AD2d 28, 29 [1st Dept 1998]). The IAS court also properly dismissed the remainder of plaintiff’s claim for unused vacation time, as the evidence reflects that TuneCore’s vacation policy did not permit employees to carry over vacation days from one year to the next. While plaintiff submits affidavits in an effort to show that there was a special vacation policy applicable to TuneCore’s founders, the assertions in those affidavits are belied by the fact that when one of the founders was terminated, plaintiff sent him a [*2]letter informing him that he would receive payment for the unused vacation days from that year only.

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