Moritt, Hock & Hamroff, LLP, New York (David A. Schrader
of counsel), for appellant.
Sherman Wells Sylvester & Stamelman LLP, New York (Jordan
D. Weinreich of counsel), for respondent.
J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.
Supreme Court, New York County (Saliann Scarpulla, J.),
entered on or about August 18, 2016, which, to the extent
appealed from as limited by the briefs, granted
defendant's motion to dismiss the breach of contract,
breach of the covenant of good faith and fair dealing,
promissory estoppel, and negligent misrepresentation claims,
unanimously modified, on the law, to deny the motion as to
the breach of contract claim with respect to severance pay
and the breach of implied covenant and fair dealing claim,
and otherwise affirmed, without costs.
alleges that he was hired by defendant in January 2013
pursuant to terms set forth in a written offer of employment
and other written agreements, which specified that his
employment would be at-will and subject to three months'
notice of termination and that his compensation would include
an annual bonus of at least $50, 000 and the opportunity to
earn up to $250, 000 of stock in defendant's holding
company if defendant acquired plaintiff's former employer
and plaintiff met performance goals to be set by defendant.
Plaintiff's employment was terminated in July 2014,
without prior notice.
allegations of breach of contract with respect to a 2014
bonus are based on promises by defendant that are "too
indefinite to permit enforcement" (see De Madariaga
v Union Bancaire Privee, 103 A.D.3d 591, 591 [1st Dept
2013], lv denied 21 N.Y.3d 854');">21 N.Y.3d 854 , quoting
Glanzer v Keilin & Bloom, 281 A.D.2d 371, 372
[1st Dept 2001]). Plaintiff's entitlement to the bonus
was "based on execution of relevant [key performance
indicators] determined annually in accordance with the
current Company policies, " and the complaint does not
allege that those goals were determined and
allegations of breach of contract with respect to severance
pay state a cause of action and are not conclusively refuted
by the documentary evidence. The complaint alleges that
defendant's CEO, acting with authority, offered plaintiff
three months' notice prior to termination, that plaintiff
accepted that term, and that he was then terminated without
proper notice. The complaint properly seeks three months'
salary as severance pay or damages for the failure to comply
with a notice of termination provision (see De
Graffenreidt v Neighborhood Health Ctr. of Provident Clinical
Socy., 42 A.D.2d 773');">42 A.D.2d 773 [2d Dept 1973]; David Birnbaum
LLC/Rare 1 v Park, 2013 NY Slip Op 33372[U], *17-18 [Sup
Ct, NY County Jan. 24, 2013]).
complaint states a cause of action for breach of the implied
covenant of good faith and fair dealing (see 511 W. 232nd
Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 153
). It alleges that defendant's representative,
acting with authority, sent plaintiff a letter offering him
employment, with an email saying that plaintiff would have
the ability to earn up to $250, 000 worth of defendant's
restricted stock, pending defendant's acquisition of
plaintiff's former employer and provided that plaintiff
met certain goals; it further alleges that defendant failed
to set goals. Based upon the language of the email, a
reasonable person in plaintiff's position would be
justified in understanding that defendant was obligated to
set goals for plaintiff to enable him to receive the
"fruits" of the offer (see 511 W. 232nd Owners
Corp., 98 N.Y.2d at 153 [internal quotation marks
omitted]). Defendant's alleged failure to set goals
"ha[d] the effect of destroying or injuring
[plaintiff's] right" to earn the stock (see
id. [internal quotation marks omitted]; see e.g.
Pleiades Publ., Inc. V Springer Science Bus. Media
LLC, 117 A.D.3d 636');">117 A.D.3d 636 [1st Dept 2014]; Merzon v
Lefkowitz, 289 A.D.2d 142');">289 A.D.2d 142 [1st Dept 2001]).
promissory estoppel and negligent misrepresentation claims
were correctly dismissed since plaintiff does not allege a
duty independent of the employment agreement (see Vista
Food Exch., Inc. v BenefitMall, 138 A.D.3d 535, 537 [1st
Dept 2016] ...