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Perella Weinberg Partners LLC v. Kramer
Supreme Court of New York, First Department
August 29, 2017
Perella Weinberg Partners LLC, et al., Plaintiffs-Respondents,
Michael A. Kramer, et al., Defendants-Appellants, Ducera Partners LLC, Defendant. Michael A. Kramer, et al., Counterclaim Plaintiffs-Appellants,
Perella Weinberg Partners LLC, et al., Counterclaim Defendants-Respondents. Michael A. Kramer, et al., Cross Claim Plaintiffs-Appellants,
Joseph R. Perella, et al., Third-Party Cross Claim Defendants-Respondents. Perella Weinberg Partners LLC, et al., Plaintiffs, Perella Weinberg Group LP, Plaintiff-Respondent,
Michael A. Kramer, et al., Defendants-Appellants, Joshua S. Scherer, et al., Defendants. Michael A. Kramer, et al., Counterclaim Plaintiffs-Appellants, Joshua S. Scherer, et al., Counterclaim Plaintiffs,
Perella Weinberg Partners LLC, et al., Counterclaim Defendants, Perella Weinberg Partners Group, Counterclaim Defendant-Respondent. Michael A. Kramer, et al., Cross Claim Plaintiffs-Appellants, Joshua S. Scherer, et al., Cross Claim Plaintiffs,
Joseph R. Perella, et al., Third-Party Cross Claim Defendants-Respondents.
Solbakken LLP, New York (Lisa C. Solbakken of counsel), for
Schiller Flexner LLP, NY (Jonathan D. Schiller of counsel),
and Weil, Gotshal & Manges LLP, New York (Jeffrey S.
Klein of counsel), for respondents.
Acosta, P.J., Sweeny, Renwick, Moskowitz, Kahn, JJ.
Supreme Court, New York County (Shirley W. Kornreich, J.),
entered July 19, 2016, which, insofar as appealed from as
limited by the briefs, denied defendants Michael A. Kramer
and Derron S. Slonecker's motion for summary judgment on
the issue of plaintiff Perella Weinberg Partners Group
LP's liability for unpaid deferred compensation, and
granted plaintiffs' and third-party cross claim
defendants' motion to dismiss defendants Kramer,
Slonecker, Joshua S. Scherer and Adam W. Verost's
counterclaims and cross claims for fraudulent inducement,
Labor Law, and breach of fiduciary duty, unanimously
modified, on the law, to deny plaintiffs' and third-party
cross claim defendants' motions as to the claim for
breach of fiduciary duty asserted by Kramer against Joseph R.
Perella, Peter A. Weinberg, and Perella Weinberg Partners
LLC, and otherwise affirmed, without costs.
that, for the reasons that follow, defendants Kramer and
Slonecker have failed to establish that the Deferred
Compensation Amount Election Forms dated May 31, 2011
(Election Forms) unambiguously modified the terms of the
Deferred Compensation Agreements dated May 30, 2007 (DCAs) to
require payment of the deferred compensation accounts upon
any separation from service, thereby entitling them to
immediate payment of their deferred compensation accounts.
separate DCAs executed by Kramer and Slonecker were virtually
identical, detailed, four-page documents, except with respect
to the amount of their respective compensation allocations.
Each DCA entitled defendants to annual interest payments, and
in paragraph 4 defined the "payment date" for the
deferred compensation as follows:
Compensation, plus any accrued but unpaid interest thereon...
shall be payable by the Company to the Partner in lump sum on
the earlier to occur of (a) the fifth anniversary of the
Effective Date [June 1, 2007], or (b) the date 15 business
days following the Partner's separation from service with
the Company without Cause or by reason of death or
Disability.... The Compensation shall be forfeited in full
upon a termination by the Company for Cause."
DCA further defined termination for "cause" to
include "violation... of any non-solicitation,
non-competition or similar restrictive covenant."
Additionally, in paragraph 5(b), each DCA included a merger
clause that contained the following language:
" Entire Agreement/Amendments. This Agreement
contains the entire understanding of the parties with respect
to the Compensation.... This Agreement may not be altered,
modified, or amended except by written instrument signed by
the parties hereto...."
subsequently executed Election Form was a single page
document, printed with the employee's name, a space for
signature and date, and a direction to "Please fill-in,
" and providing the employee with a choice to continue
the Payment Date as set forth in the DCA, or alternatively,
to defer receipt of payment, and the taxable consequences of
it, until a later date, by checking the appropriate box. The
substantive provisions of the Election Forms read, in their
entirety, as follows:
"I elect to defer payment of
% of my Deferred Compensation Amount of $
currently payable on June 1, 2012 (the "Payment
Date"), in accordance with the terms of the Deferred
Compensation Agreement, as amended, dated May 30, 2007, until
the earlier to occur of my ...