The following numbered papers read on this motion by defendant to dismiss the complaint. PAPERS NUMBERED Notice of Motion-Affidavits-Exhibits EF 5-10 Answering-Affidavits-Exhibits EF 12-15 Replying EF 16 Upon the foregoing cited papers, and after Skype for Business (SfB) conference, it is ordered that defendant’s motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5) and (7), is decided as follows: Plaintiff was a former managing partner at defendant law firm from on or about January 1, 2003, until May 6, 2017. He alleges that between 2003 and 2011, his compensation included a base salary of $350,000.00, plus 25 percent of any originations brought in over $1,000,000.00 in a calendar year. In 2011, the agreement changed so that plaintiff’s compensation was comprised of a base salary of $300,000.00, plus 30 percent of any originations brought in over $800,000.00 in a calendar year (the “Agreement”). Plaintiff alleges that the Agreement was memorialized in several writing over the years. Plaintiff alleges that when he left defendant, it was agreed that defendant would pay plaintiff for his originations on the prorated year, seventeen (17) weeks, meaning he was to receive 30 percent of all monies which came in over $261,538.00. Plaintiff calculates his originations from January 1, 2017 through the present to be $325,603.52, which has not been paid. Plaintiff subsequently commenced the instant action asserting causes of action sounding in: (1) breach of contract; (2) failure to pay wages — NYLL; (3) conversion; (4) accounting; (5) quantum meruit; and (6) declaratory judgment. Defendant now seeks to dismiss the complaint pursuant to CPLR 3211(a)(1), (5) and (7). Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action against him if the cause of action may not be maintained because of the statute of frauds. Pursuant to General Obligations Law §5-701(a)(1), the statute of frauds voids any agreement that is not in writing that “[b]y its terms is not to be performed within one year from the making thereof.” On a CPLR 3211(a)(5) motion to dismiss a complaint based on the statute of frauds, the facts alleged in the complaint must be accepted as true, and the pleader is accorded the benefit of every possible favorable inference (see AAA Viza, Inc. v. Bus. Payment Sys., LLC, 38 AD3d 802, 803 [2007]). Here, plaintiff alleges that during the course of his employment with defendant, the Agreement was memorialized in several writings, and produces a copy of one such writing from 2014 (2014 Memorandum), where defendant’s Controller handwrote a document stating: “Deal — 30 percent of Fees Collected over $800,000,” and then contained a calculation of the amount owed to Plaintiff when accounting for fees collected, less $800,000, multiplied by thirty percent (30 percent). Although an oral agreement to pay commissions following the termination of an at-will employment relationship is unenforceable under the Statute of Frauds, here, plaintiff has produced a writing that through reasonable implication states the material terms of the agreement sufficient to satisfy the Statute of Frauds (see AAA at 803; Whitehorn Assocs., Inc. v. One Ten Brokerage, 264 AD2d 516, 517 [1999]). Additionally, a party’s partial performance of an oral agreement can take it out of the Statute of Frauds if the acts constituting partial performance are unequivocally referable to the contract (see Spodek v. Riskin, AD2d 358, 359 [1989]). Here, plaintiff alleges, and defendant does not dispute, that 1099 Forms issued by defendant to plaintiff evidences the Agreement as the amount reflected on the 1099 Forms exceeded plaintiff’s base salary. Furthermore, so long as an agreement can be “fairly and reasonably interpreted” as being capable of being performed within a year, the Statute of Frauds will not serve as a bar, no matter how unexpected, unlikely, or improbable it is that performance will occur in that time frame (Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366 [1998]). Here, defendant has not demonstrated that the Agreement was incapable of being performed in a year. Thus, plaintiff’s complaint is not barred by the statute of frauds. To the extent that defendant seeks to dismiss the complaint based upon documentary evidence, pursuant to CPLR 3211(a)(1), defendant “‘has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’” (Flushing Sav. Bank, FSB v. Siunykalimi, 94 AD3d 807, 808 [2012], quoting Mazur Bros. Realty, LLC v. State of New York, 59 AD3d 401, 402 [2009]; see Leon v. Martinez, 84 NY2d 83, 88 [1994]). “Where documentary evidence definitively contradicts the plaintiff’s factual allegations and conclusively disposes of the plaintiff’s claim, dismissal pursuant to CPLR 3211(a)(1) is warranted” (Berardino v. Ochlan, 2 AD3d 556, 557 [2003]). Here, defendant claims that documentary evidence conclusively establishes that the 30 percent commission provision was not triggered since attorneys’ fees collected from plaintiff’s originations were less than $800,000 in 2017. In support, however, defendant simply submits a 2017 Receipt Allocation Report. No evidence is provided as to how, or by whom this report is generated and it does not rise to the level of conclusively disposing of plaintiff’s claims. Defendant next contends that plaintiff’s second, third, fourth, and fifth causes of action should be dismissed for failure to state a cause of action pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 NY2d at 87-88; Grant v. LaTrace, 119 AD3d 646 [2014]). “[B]are legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Riback v. Margulis, 43 AD3d 1023, 1023 [2007]). As to plaintiff’s second cause of action for failure to pay wages in violation of the New York Labor Law, defendant has established its entitlement to dismissal. It is well-settled that the Labor Law remedies “shall not apply to any person in a bona fide executive, administrative, or professional capacity whose earnings are in excess of nine hundred dollars a week.” Labor Law §198-c. The Court of Appeals has explained that “employees serving in an executive, managerial or administrative capacity do not fall under section 191 of the Labor Law and, as a result, those individuals are not entitled to statutory attorney’s fees under section 198(1-a) if they assert a successful common-law claim for unpaid wages” (Pachter v. Bernard Hodes Grp., Inc., 10 NY3d 609, 616 [2008]). Here, plaintiff alleges in his complaint that he was “Managing Attorney of Defendant’s Long Island Office,” earning more than $300,000.00 a year in salary, and is thus not entitled to the additional remedies provided for by the Labor Law such as attorney’s fees, thus making this second cause of action duplicative of his breach of contract cause of action (see Id; Schuit v. Tree Line Mgmt. Corp., 46 AD3d 405, 405-06 [2007]; Zito v. Fischbein, Badillo, Wagner & Harding, 35 AD3d 306, 307 [2006]). Plaintiff’s third cause of action for conversion is dismissed since this claim is predicated on the breach of contract claim, and there is no breach of a duty independent of the breach of contract (see Connecticut New York Lighting Co. v. Manos Bus. Mgmt. Co., Inc., 171 AD3d 698, 699 [2019]; Fiarenti v. Cent. Emergency Physicians, PLLC., 305 AD2d 453, 455 [2003]). Likewise, plaintiff’s fourth cause of action for an accounting is dismissed. To be entitled to an accounting, there must be a “confidential or fiduciary relationship” between the parties and an employer-employee relationship, such as the one between plaintiff and defendant is insufficient (see Dee v. Rakower, 112 AD3d 204, 214 [2013]). Plaintiff’s fifth cause of action for quantum meruit, survives as it is well-established that a claim in equity to recover the reasonable value of services rendered may be pleaded in the alternative to a contract claim (see Mirchel v. RMJ Sec. Corp, 205 AD2d 388, 390 [1994]). Accordingly, the motion is granted solely to the extent that plaintiff’s second, third, and fourth causes of action are dismissed, and is otherwise denied. Any request for relief not expressly granted herein is denied. This constitutes the decision and order of the court. Dated: December 24, 2020
