| Schutty v Speiser Krause P.C. |
| 2011 NY Slip Op 06077 [86 AD3d 484] |
| July 28, 2011 |
| Appellate Division, First Department |
| John F. Schutty, Appellant-Respondent, v Speiser KrauseP.C. et al., Respondents-Appellants. |
—[*1] Leitner & Getz LLP, New York (Gregory J. Getz of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 28,2009, which, insofar as appealed from as limited by the briefs, granted defendants' motion todismiss the second and third branches of the first cause of action (unpaid salary and 10% feesplit) and the third, fourth, fifth, sixth and seventh causes of action, unanimously modified, onthe law, the motion denied insofar as it is addressed to the second branch of the first cause ofaction (unpaid salary), and otherwise affirmed, without costs. Defendants' cross appeal from thesame order, unanimously dismissed, without costs, as academic.
Plaintiff, an attorney, was formerly employed by defendant law firm (collectively with theother defendants, Speiser) pursuant to a written agreement executed in 2003. Plaintiff allegesthat, in March 2005, Speiser orally promised him that, if he remained with the firm, he would bepaid, in addition to his salary, 10% of fees earned on certain work. Plaintiff remained with thefirm, but the parties' subsequent efforts to agree on the terms of a new employment contract wereunsuccessful. Ultimately, plaintiff resigned from Speiser in July 2007 and subsequentlycommenced this action for breach of contract and other causes of action. On plaintiff's appealfrom the order granting Speiser's pre-answer motion to dismiss pursuant to CPLR 3211 (a) (1),(5) and (7) with respect to most portions of the complaint, we modify to reinstate the cause ofaction for breach of contract insofar as it seeks to recover unpaid salary, and otherwise affirm.
Plaintiff's first cause of action, for breach of contract, has three branches, the second andthird of which are at issue on this appeal. The second branch seeks to recover plaintiff's unpaidsalary for the first six months of 2007; at the time, Speiser allegedly told plaintiff that it neededto suspend his salary due to cash flow problems. The motion court erred in dismissing this claimbased on documentary evidence that plaintiff issued an invoice in his own name in February2007, apparently in violation of a term of his employment agreement. The invoice and otherdocuments in the record do not establish whether plaintiff began this work with the intent tobenefit only himself before Speiser told him that the payment of his salary would be suspended,and thus we cannot determine as a matter of law that plaintiff was in material breach of thecontract. However, the third branch of the first cause of action, which seeks to enforce thealleged oral agreement to pay plaintiff 10% of the fees Speiser received for certain work, was[*2]correctly dismissed. The documentary evidence of the parties'unsuccessful negotiations on the terms of a contemplated new employment agreement (includingmultiple drafts of same, the parties' correspondence, and plaintiff's written letter of resignation)establish that the parties did not intend to be bound until there was a signed written contract andthat there was never a meeting of the minds on all material terms of the new agreement of whichthe proposed 10% fee split was intended to be a part (see e.g. Langer v Dadabhoy, 44 AD3d 425 [2007], lvdenied 10 NY3d 712 [2008]; Spierv Southgate Owners Corp., 39 AD3d 277 [2007]; Galesi v Galesi, 37 AD3d 249 [2007]; Yenom Corp. v 155 Wooster St. Inc.,23 AD3d 259 [2005], lv denied 6 NY3d 708 [2006]).
The remaining causes of action at issue were correctly dismissed. The third cause of action(entitled "promissory misrepresentation") and fourth cause of action (entitled "promissory fraud")seek recovery for Speiser's failure to honor the alleged oral promise to pay plaintiff 10% of feesfor certain work, on which promise plaintiff allegedly relied by declining another offer ofemployment. To the extent these causes of action seek recovery under a theory of promissoryestoppel, the documentary evidence of the parties' lengthy and fruitless negotiations establishesas a matter of law that there was no clear and unambiguous promise on which plaintiffreasonably could have relied (seeAzimut-Benetti S.p.A. v Magnum Mar. Corp., 55 AD3d 483, 484 [2008]; Steele vDelverde S.R.L., 242 AD2d 414, 415 [1997]). Similarly, the third and fourth causes of actionare legally insufficient to the extent they seek recovery under a theory of fraud ormisrepresentation inasmuch as the documentary evidence of the parties' negotiations negates as amatter of law the element of justifiable reliance on the alleged false promise (see Mandarin Trading Ltd. vWildenstein, 16 NY3d 173, 178 [2011]). The fifth cause of action, for quantum meruit,was correctly dismissed because, in the absence of an agreement on new terms, plaintiff'semployment continued to be governed by the 2003 agreement, and recovery under the theory ofquantum meruit is unavailable where an express contract covers the same subject matter (see Parker Realty Group, Inc. vPetigny, 14 NY3d 864 [2010]). The sixth cause of action, alleging breach of fiduciaryduty, was correctly dismissed on the ground that plaintiff's allegations do not support theexistence of a higher level of trust between the parties than in the normal employmentrelationship (see Rather v CBSCorp., 68 AD3d 49, 55 [2009], lv denied 13 NY3d 715 [2010]). Finally, theseventh cause of action, alleging tortious interference with contract against defendant Halloran,was correctly dismissed on the ground that Halloran, as a member of the Speiser firm, acted toprotect his own financial interest (seeWhite Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]).Concur—Andrias, J.P., Friedman, Acosta and DeGrasse, JJ.