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SITCHENKO v. DIRESTA

April 6, 1981

Walter SITCHENKO, Plaintiff,
v.
James DiRESTA, Michael Koren, and Louis J. Corbetta, a Partnership known as Corbetta Koren-DiResta Constructors, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Plaintiff, a citizen of Florida, has brought this diversity action seeking to enforce rights allegedly arising out of an employment agreement he entered into with a partnership entitled Corbetta Koren-DiResta Constructors ("the Partnership"). He has joined as parties defendant three individuals in the belief that they were the members of the Partnership. Asserting that the true partners are other than these individuals, and that, in any event, the Partnership would not be liable, defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Rule 12(b)(6), F.R.Civ.P. Since on this motion "matters outside the pleading are presented to and not excluded by the court" because of their value in clarifying the identities and relationships of the parties involved in this matter, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Rule 12(b), F.R.Civ.P.

 Defendant Corbetta, a citizen of New York, is president of Sandpiper Beach Developments, Ltd. ("Sandpiper"), a Nassau, Bahamas, corporation. Defendants Koren and DiResta, also citizens of New York, are principals in Koren-DiResta Construction Co., Inc. ("Koren-DiResta"), a New York corporation. It appears that on October 28, 1977, Sandpiper and Koren-DiResta formed the Partnership at issue here under the laws of the Bahamas for the purpose of entering into an agreement with OGEM B.V. ("OGEM"), a Netherlands corporation, to recruit and supply supervisory personnel in connection with certain construction projects of OGEM in Saudi Arabia. In the partnership agreement, entered into in New York, defendant Corbetta was designated signatory for Sandpiper and defendant DiResta was designated signatory for Koren-DiResta. Also on October 28, 1977, the Partnership entered into a "construction services agreement" with OGEM.

 Pursuant to the construction services agreement, plaintiff was recruited to work on one of OGEM's projects, and on January 30, 1978, he entered into the employment agreement with the Partnership that is the subject of this lawsuit. The employment contract was signed by plaintiff and by defendants Corbetta and DiResta in the following manner:

 
"IN WITNESS WHEREOF, the Partnership has executed this Agreement by its duly authorized representative and the Employee has executed this Agreement, on the day and year first above written.
 
Corbetta/Koren-DiResta Constructors
 
By (/s> James DiResta
 
By (/s> Louis J. Corbetta
 
By (/s> Walter Sitchenko"

 Complaint, Exh. A, at 13.

 The employment agreement provided that plaintiff was to work for and be paid by OGEM and

 
"in all respects become an employee of OGEM and will be treated as such except as specifically enumerated herein. The Partnership guarantees to the Employee the performance by OGEM of its obligations to the Employee." Complaint, Exh. A, at 2, P 2.

 The agreement also specified that plaintiff was to work as a "resident supervisor" and provided that:

 
"A Resident Supervisor's employment may be terminated by OGEM without cause at any time during the term of this Agreement, in which event his salary shall continue to be paid by OGEM until the termination of this Employment Agreement." Complaint, Exh. A, at 6, P ...

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