The opinion of the court was delivered by: Gerard E. Lynch, District Judge
In this action for damages arising out of an alleged breach of contract, defendant Tyco International (US), Inc. ("Tyco") and plaintiff Richard D. Power cross-move for summary judgment. Both motions will be denied.
Plaintiff brought this action on August 14, 2002, claiming defendant breached an oral agreement relating to plaintiff's bonus compensation and severance package. Plaintiff now seeks to enforce only the part of the agreement that relates to severance. (D. Mem. at 5; P. Mem. at 2.*fn1 ) Plaintiff alleges that he and L. Dennis Kozlowski, then the Chief Executive Officer of Tyco, reached an oral agreement concerning Power's severance pay in June 1999, when Power agreed to return to employment with Tyco. (P. 56.1(a) Stmt. ¶ 30.*fn2 ) According to plaintiff, Kozlowski agreed that Power's severance pay, upon termination, would be the greater of $1.5 million or two times Power's salary and bonus in the year prior to termination.
I. Summary Judgment Standard
Summary judgment is proper when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A genuine issue of material fact is established if the evidence would allow a reasonable finder of fact to return a verdict for the nonmoving party. Id. at 248. The court must "resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion." Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
II. Defendant's Motion for Summary Judgment
Defendant argues that plaintiff's agreement cannot be enforced, even if it exists as described, because its material terms were too vague. In particular, defendant argues that the contract failed to adequately articulate "how Power's bonus was to be calculated for severance purposes and the conditions under which severance would become payable." (D. Mem. at 7.)
"A court cannot decree performance of an agreement unless it can discern with reasonable certainty and particularity what the terms of the arrangement are." Brookhaven Housing Coalition v. Solomon, 583 F.2d 584, 593 (2d Cir. 1978); see Holzer v. Kaplan, 1991 WL 230623, at *2 (S.D.N.Y. 1991) (holding that the court would "not impose [its] own conception of what the parties should or might have undertaken in order to resolve the ambiguity regarding material terms."). However, rejection on the ground of indefiniteness is "is at best a last resort," appropriate only at "the point where construction becomes futile." Heyman Cohen & Sons v. M. Lurie Woolen Co., 232 N.Y. 112, 114 (1921) (Cardozo, J.). Moreover, New York courts have "not applied the definiteness doctrine rigidly. . . . Imperfect expression does not necessarily indicate that the parties to an agreement did not intend to form a binding contract." 166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp., 78 N.Y.2d 88, 91 (1991).
Power seeks to enforce an alleged agreement that provided him with severance equal to the greater of $1.5 million or two times Power's salary and bonus in the year prior to termination. (P. 56.1(a) Stmt. ¶ 14.) Defendant concedes that $4.2 million is "the 2001 cash bonus Power actually received." (D. Mem. at 13 n.6.) This is all that is required to know the amount of severance under the alleged oral agreement; by the time of termination, the bonus in the year prior to termination would certainly be a known quantity.*fn3 See Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 110 (1981) ("Nor would the agreement have failed for indefiniteness because it invited recourse to an objective extrinsic event, condition or standard on which the amount was made to depend. All of these, inter alia, would have come within the embrace of the maxim that what can be made certain is certain").
Defendant also argues that there was no agreement with respect to whether Power would have been entitled to severance in circumstances that never actually arose, such as a change in control, demotion, termination for cause, or disability. (D. Mem. at 17.) As the New York Court of Appeals has noted, however, "at some point virtually every agreement can be said to have a degree of indefiniteness, and if the doctrine is applied with a heavy hand it may defeat the reasonable expectations of the parties in entering into the contract." Cobble Hill Nursing Home, Inc. v. Henry and Warren Corp., 74 N.Y.2d 475, 483 (1989).
None of the purported uncertainties in the agreement bear on the present controversy. "[T]he degree of certainty required may be affected by the dispute which arises and by the remedy sought. Courts decide the disputes before them, not other hypothetical disputes which might have arisen." Restatement (Second) of Contracts § 33 (1979). Because none of defendant's arguments suggest any material uncertainty concerning Power's entitlement to ...