What's an "absolute failure?"
That is the question Justin Mitchell recently found himself answering in the case of Mitchell v. Fidelity Borrowing LLC .
Mitchell was terminated by Fidelity Borrowing just four months after entering into an employment agreement which provided that he could only be terminated upon an "absolute failure to perform the contract's specification."
Mitchell started a case in the New York County Supreme Court alleging breach of contract. When Mitchell made a motion for summary judgment requesting relief in his favor, the court found there were triable issues of fact as to what was an "absolute" failure to perform.
On appeal, the Appellate Division, First Department, reversed. According to the AD1, there was no reasonable view of the evidence that would establish that Mitchell "absolutely failed" to perform under the contract's terms.
The AD1 was of the opinion that Mitchell was entitled to recoup the base salary he would have received under the contract, together with interest thereon. However, the case was remanded for a determination as to how much (if anything) should be deducted for Mitchell's failure to mitigate damages.
Sorry. But that's absolutely it.
For a copy of the following Appellate Division's decision, please use this link: Mitchell v. Fidelity Borrowing LLC