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Tadeusz Witkowski v. Adept Management Systems

May 6, 2011


The opinion of the court was delivered by: Gary L. Sharpe District Court Judge


I. Introduction

Plaintiff Tadeusz Witkowski commenced this action against Adept Management Systems, LLC, for breach of contract, breach of implied contract, unjust enrichment, negligent misrepresentation, and promissory estoppel. (See Am. Compl., Dkt. No. 31.) Pending are Adept's motion and Witkowski's cross-motion for summary judgment. (Dkt. Nos. 38, 40.) For the reasons that follow, Adept's motion is granted in part and denied in part, and Witkowski's motion is denied.

II. Background

A. Factual History

On May 18, 2007, plaintiff Tadeusz Witkowski began his employment as a frontline sales representative with defendant Adept Management Services, LLC. (See Def. SMF ¶ 12, Dkt. No. 38:26.) As outlined in a confirmation letter sent to Witkowski from James Cotton, a principal of Adept, the terms of Witkowski's employment included a starting annual salary of $52,000, full eligibility to participate in Adept's employee benefits, "a sales commission of 10% of the gross amount of all analysis closed with a go-ahead," and reimbursement of all approved expenses upon the submission of legitimate receipts for airfare, hotel stays, personal automobile expenses, and business-related telephone expenses. (See Orris Aff., Ex. A, May 18, 2007 Letter, Dkt. No. 38:2.) According to Witkowski, the phrase "all analysis closed with go-ahead" encompassed all written and unwritten contracts or agreements regarding services that Adept received payment for. (See Pl. Resp. SMF ¶ 14, Dkt. No. 40:32.) As a frontline sales representative, Witkowski was responsible for scheduling and attending meetings; communicating with prospective clients via telephone, email, and written correspondence; arranging meetings between Adept representatives and prospective clients; and conducting follow-up visits and communications with clients. (See id. at ¶ 16.) In making contact and arranging initial meetings with prospective clients, Witkowski relied on both his own leads, contact information, and sources of business, and leads and contact information provided by Adept personnel and management. (See id. at ¶ 17; see also Orris Aff. ¶ 12, Dkt. No. 38:1.)

Sometime between October and December 2007, upon receiving lead information from Adept personnel, Witkowski contacted Claymont Steel Holdings, Inc. to set up an initial meeting. (See Def. SMF ¶ 31, Dkt. No. 38:26; Pl. Resp. SMF ¶ 31, Dkt. No. 40:32.) Witkowski and Claymont representatives thereafter participated in a series of meetings, some of which were attended by Adept's President, Mark Orris. (See Pl. Resp. SMF ¶ 32, Dkt. No. 40:32.) As a result of these meetings, Adept entered into a services agreement, or "closed with a go-ahead," with Claymont.

In February 2008, Orris informed Witkowski by email that his compensation package was being altered and that he had three options to choose from. (See id. at ¶ 25; see also Witkowski Aff., Ex. D, Orris Feb. 21, 2008 Email, Dkt. No. 40:5.) The first option was to be paid 10% commission without any salary or reimbursement for business expenses. (See Pl. Resp. SMF ¶ 26, Dkt. No. 40:32.) The second option was to be paid 8% commission with reimbursement for business expenses, but without a salary. (See id. at ¶ 27.) The third option was to be paid 6% commission with reimbursement for business expenses and the $52,000 annual salary. (See id. at ¶ 28.) On March 5, Witkowski and Orris agreed that Witkowski would receive 10% commission for new business, an additional 1.5% commission for new business generated by him without leads provided by Adept, and 7.5% commission for renewal and repeat business with the same client.*fn1 (See id. at ¶¶ 29-30; see also Witkowski Aff., Ex. D, Orris-Witkowski Mar. 5, 2008 Emails, Dkt. No. 40:5.) Orris also agreed that Witkowski would be entitled to continue receiving commission payments if and when his employment with Adept ended. (See Pl. Resp. SMF ¶ 62, Dkt. No. 40:32; see also Witkowski Aff., Ex. D, Orris Mar. 4, 2008 Email, Dkt. No. 40:5.)

From December 17, 2007, to September 1, 2008, Adept paid Witkowski approximately $139,000.00 as 10% of Adept's gross revenue from Claymont in accordance with the May 17, 2007 and March 5, 2008 compensation terms. (See Pl. Resp. SMF ¶¶ 33-36, Dkt. No. 40:32.) And pursuant to the new terms, from September 1, 2008, to April 25, 2009, Witkowski received $41,780.00, or 7.5% of Adept's gross revenue, for the renewal of the Claymont account. (See id. at ¶¶ 33-37.)

On September 4, 2008, Ed Fletcher of Atlas Holdings telephoned Adept principal David Crouse, explaining that Atlas was in the market for a consulting firm. (See Def. SMF ¶ 38, Dkt. No. 38:26.) In response, Crouse set up a call between Orris and Fletcher. (See id. at ¶¶ 38-39.) Later in the day on September 4, Fletcher called Orris to discuss Atlas's interest in hiring a consultant to improve the management and business operations of Finch Paper, an Atlas holding located in Glen Falls, New York. (See id. at ¶ 41.) Fletcher also informed Orris that Atlas's Chairman, Andy Bursky, would be in contact. (See id.) Accordingly, the following day, September 5, Bursky called Orris to discuss Atlas's consultant needs and to arrange for a meeting with Orris and Crouse.*fn2 (See id. at ¶ 43.) Orris subsequently informed Witkowski of his conversation with Fletcher and directed him to help secure Atlas's business by, among other things, acting as a liaison with regards to scheduling matters and providing additional information to Atlas, including references for Adept. (See id. at ¶ 42; see also Am. Compl. ¶¶ 104-06, Dkt. No. 31.) The meeting was scheduled for September 16, and Orris asked Witkowski to attend the meeting. (See Def. SMF ¶ 47, Dkt. No. 38:26; see also Orris Aff. ¶ 29, Dkt. No. 38:1 (alleging that Witkowski was asked to attend the meeting "to create the impression for Atlas that Adept was actually larger than it is" and because Witkowski "could benefit from watching [Orris] conduct a sales presentation").)

On September 8, Jeffrey Nathan, an Atlas representative, contacted Witkowski via email to request that he schedule a conference call for September 11 at 10:30 a.m. (See Def. SMF ¶ 44, Dkt. No. 38:26.) Nathan also asked Witkowski to forward a copy of Adept's proposal presentation prior to the conference call. (See id.) Witkowski then contacted Orris, who asked Witkowski to review the presentation and provide any opinions and suggestions. (See Am. Compl. ¶ 108, Dkt. No. 31.) After receiving Witkowski's input and revising the presentation, Orris provided a copy of the presentation to Witkowski, who forwarded it to Nathan on September 9. (See id. at ¶¶ 108-09; Def. SMF ¶ 45, Dkt. No. 38:26.) The conference call was held on September 11. (See Orris Aff. ¶ 28, Dkt. No. 38:1.) Shortly after the conference call, Atlas representatives emailed Witkowski with a list of questions they wanted Adept to respond to at the upcoming meeting. (See Am. Compl. ¶ 110, Dkt. No. 31.) Witkowski responded with an email explaining how the questions would be addressed at the meeting. (See Def. SMF ¶ 46, Dkt. No. 38:26.)

On September 16, 2008, the meeting was held in Glens Falls with Crouse, Orris, Witkowski, Fletcher, Nathan, and other Atlas and Finch representatives in attendance. (See id. at ¶ 48.) At the meeting, which was the first face-to-face meeting between Adept and Atlas-Finch representatives, Orris made Adept's presentation. (See id. at ¶¶ 49-50.) Following the meeting, Fletcher submitted additional questions to Orris by email, to which Witkowski and Nathan were copied. (See id. at ¶ 51.) After soliciting and receiving input from, among others, Witkowski regarding both Fletcher's questions and the Atlas-Finch proposal, Orris provided Fletcher with the final version of the proposal. (See id. at ¶ 52; see also Am. Compl. ¶¶ 119-21, Dkt. No. 31.)

In late September 2008, over the course of two weeks, Adept conducted an analysis of Atlas-Finch at the Glens Falls location. (See Def. SMF ¶ 53, Dkt. No. 38:26.) Witkowski admittedly played no role in the analysis, since-consistent with his prior actions with other clients, including Claymont-his duties related to sales and not analysis. (See Pl. Resp. SMF ¶ 53, Dkt. No. 40:32; see also Am. Compl. ¶ 125, Dkt. No. 31.) Upon completion of the analysis, Atlas requested that Orris attend a meeting of its board on October 28, 2008, to present Adept's analysis and recommendations. (See Def. SMF ¶ 54, Dkt. No. 38:26.) On October 28, Orris and David Lang, an Adept representative, attended Atlas's board meeting and presented the analysis. (See id. at ¶ 55.) The next morning, Atlas gave Adebt a verbal "go-ahead," with the terms of the project to be worked out in the future. (See id.) On the same morning of October 29, Orris terminated Witkowski's employment with Adept. (See Pl. Resp. SMF ¶ 56, Dkt. No. 40:32; see also Orris Aff. ¶ 36, Dkt. No. 38:1 (averring that Witkowski "terminated his services ... after he claimed an entitlement to a commission for the Atlas sale").)

On November 2, 2008, Adept personnel arrived at the Finch site in Glens Falls to begin performing their services. (See Def. SMF ¶ 57, Dkt. No. 38:26.) Over the next eight days, Adept made a written proposal to Atlas-Finch to provide services; Atlas-Finch countered with an amendment for different payment terms; Adept accepted Atlas-Finch's proposed amendment; and Adept and Atlas-Finch entered into a formal, finalized written agreement pursuant to which Adept was to provide services to Atlas-Finch. (See id. at ¶¶ 58-60.) The agreement was backdated to October ...

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