Bornstein v. Neuman

— In an action to recover damages for breach of an employment contract, defendant Carl H. Neuman appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Balletta, J.), dated June 22, 1981, as is in favor of plaintiff on the issue of liability and plaintiff cross-appeals, as limited by his brief, from so much of the same order and judgment as awarded damages in the principal sum of only $12,000, together with costs, disbursements, and interest as allowed by law. Order and judgment reversed, on the law, with costs to plaintiff, and new trial granted on the issue of damages only. The findings of fact on the issue of liability are affirmed. The record amply supports the trial court’s determination that defendants breached plaintiff’s enforceable employment contract. In determining the proper measure of damages, however, the trial court improperly shifted the burden of proof with regard to the question of mitigation of damages from defendants to plaintiff (see McClelland v Climax Hosiery Mills, 252 NY 347 ). At the new trial, which will be solely to determine the amount of damage sustained by plaintiff, defendants will carry the burden of establishing the amount that plaintiff actually did earn or reasonably could have earned during the remaining term of the breached contract. Damiani, J. P., Mangano, Thompson and Boyers, JJ., concur.