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RILEY v. N.F.S. SERVS.

July 17, 1995

WILLIAM D. RILEY, Plaintiff, against N.F.S. SERVICES, INC., Defendant.


The opinion of the court was delivered by: JOHN G. KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff William Riley ("Riley") has brought this action to recover bonus compensation from his former employer NFS Services, Inc. ("NFS"). Specifically, he seeks to recover a portion of net profits earned by NFS as a result of a contract between NFS and The Equitable Life Assurance Society of the United States ("Equitable"). The profits were earned subsequent to Riley's leaving NFS. The plaintiff has brought claims for breach of contract, breach of an implied covenant of good faith and fair dealing, unjust enrichment (and quantum meruit) and willful violation of the New York Labor law.

 NFS has moved for summary judgment, asserting that all of the plaintiff's claims are barred by the Statute of Frauds. Because issues of material fact exist with respect to whether the contract at issue is covered by the Statute of Frauds, the defendant's motion is denied.

 I.

 Riley was hired as a Senior Vice President by NFS shortly after April 11, 1991 pursuant to a letter agreement dated April 11, 1991 ("Employment Agreement") that outlined the terms of his employment. (See Exh. A to Def.'s 3(g) Statement.) NFS is in the business of, among other things, asset recovery work.

 Riley's employment status changed over the course of his tenure with NFS. On December 6, 1991, he resigned from his officer position and continued to perform the same functions for NFS in the capacity of a consultant. Riley became an employee of NFS again in March, 1992. He then resigned from NFS on July 2, 1992 and continued to render some services as a consultant.

 While he was still employed by NFS, Riley worked to secure a contract between NFS and Equitable. This contract was not finalized at the time Riley resigned. In September of 1992, following his resignation, Riley attended a meeting between NFS and Equitable. NFS and Equitable ultimately entered into a contract that was dated November 4, 1992 ("NFS-Equitable contract") and was signed on November 5, 1992. Riley claims that he was instrumental in securing the NFS-Equitable contract because he had a relationship with Equitable and he was able to convince Equitable that the contract would be advantageous to it. (Compl. P 15.)

 Riley claims that he has a contractual right to a percentage of the profits earned by NFS subsequent to the termination of his employment as a result of the NFS-Equitable contract ("Riley-NFS contract"). He bases his claim both upon the provision in the Employment Agreement entitling him to "bonus money to be earned in your division at 20% on net profits after certain expenses are covered . . . .", (Exh. A to Def.'s 3(g) Statement), and upon oral extensions of and modifications to the Employment Agreement. *fn1" NFS has moved for summary judgment.

 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue resolution." Gallo, 22 F.3d at 1224.

 The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); see also Gallo, 22 F.3d at 1223.

 If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, ...


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