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Critelli v. Fidelity National Title Insurance Co. of New York

March 7, 2007


The opinion of the court was delivered by: Garaufis, District Judge


Plaintiff Steven Critelli ("Critelli"or "Plaintiff") brings this action under Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et. seq. ("ERISA"), against his former employer, Fidelity National Title Insurance Company of New York ("Fidelity" or "Defendant"), to collect a bonus that Plaintiff claims Fidelity owes him in recognition of his service during the final year of his employment. Fidelity moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the ground that Critelli was not a participant in any employee benefit plan governed by ERISA. For the reasons set forth below, Defendant's motion is GRANTED.


Fidelity, a title insurance company, employed Critelli from May 1986 until his termination in October 2004. (Defendant's Local Civil Rule 56.1 Statement ("Def. 56.1 Stat.") ¶ 1.*fn1 ) In or about June 2000, Fidelity promoted Critelli to the position of Vice President, New York State Agency Manager ("Agency Manager"). (Id. ¶ 2.) As Agency Manager, Critelli was eligible for an annual bonus that was computed as a percentage of New York State Agency's pretax profits. ( Id. ¶ 5.) The bonus was awarded to all similarly-situated Fidelity employees and disbursed in March of each year. (Plaintiff's Declaration ("Pl. Decl.") ¶ 3.)

Fidelity maintained a Deferred Compensation Plan ("the Plan") for its managerial and other highly-compensated employees. (Exhibit 1 to Pl. Decl. at 1.) As a participant in the Plan, Critelli had the option of deferring payment of portions of his salary, and up to 100% of his annual bonus, until a future date. (Id.)

The bonus was an incentive payment designed to compensate Critelli for leading his staff in achieving the company's sales goals. (Def. 56.1 Stat. ¶¶ 7-8.) There was no written agreement between Fidelity and Critelli setting forth the terms and conditions for the bonus payment. (Id. ¶ 4.) Following his termination in October 2004, Critelli requested that Fidelity award him a bonus for his work during the 2004 year.*fn2 (Id. ¶ 15.) Fidelity refused to grant Critelli the 2004 bonus, stating that Critelli would no longer be employed by Fidelity when the bonus was to be paid out in March of 2005. (Id. ¶ 16.) Critelli then commenced this action on January 24, 2005, alleging that the bonus constitutes an "employee benefit" that is protected by ERISA and that Fidelity is unjustifiably withholding. (Complaint ¶ 1.) For its part, Fidelity contends that the payment of this bonus is not covered by any employee benefit plan that ERISA governs and seeks summary judgment denying Plaintiff's claim. (Defendant's Memorandum in Support of Motion for Summary Judgment at 7-8.)

In addition, Fidelity asserts a counterclaim for conversion on the grounds that Plaintiff failed to remit the refund he received from the New York Islanders for the season tickets purchased by Fidelity for Critelli's business use.*fn3 (Answer ¶¶ 5-10.) Two weeks after the counterclaim was lodged, Plaintiff repaid the entire refunded amount with the exception of the interest returned to him in the amount of $66.59. Fidelity seeks the return of the $66.59 with interest and punitive damages for the alleged conversion.


A. Summary Judgment Standard

Summary judgment is appropriate when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law, i.e., where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Fed. R. Civ. P. 56(c) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "A fact is material for these purposes if it might affect the outcome of the suit under the governing law. An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party bears the burden of establishing the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party has met this burden, the non-moving party has the burden of "set[ting] forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

"The evidence of the party opposing summary judgment is 'to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Anderson, 477 U.S. at 255). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotations and citations omitted); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the opponent can create a genuine issue of material fact only by citing competent, admissible evidence. Glasso v. Eisman, Zucker, Klein & Ruttenberg, 310 F. Supp. 2d 569, 574 (S.D.N.Y. 2004) (citing Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155, 160 (2d Cir. 1999)).

B. Standard Governing ERISA Claims

To bring a claim under ERISA, a plaintiff must establish the existence of an employee benefit plan that is governed by ERISA. See 29 U.S.C. § 1003(a). ERISA applies only when a dispute stems from the terms of an "employee welfare benefit plan"*fn4 or an "employee pension benefit plan." Id. ERISA defines the latter as any plan "established or maintained by an employer. . . [which] by its express terms or as a result of surrounding circumstances . . . (1) provides retirement income to employees, or (2) results in a deferral of income to employees for periods extending beyond the termination of covered employment or beyond." 29 U.S.C. §1002(2)(A). However, benefit plans that involve payments made to employees "as bonuses for work performed" are specifically excluded from ERISA coverage by Department of Labor regulations. See 29 C.F.R. § 2510.3-2(c). Such payments may ...

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