The following e-filed documents, listed by NYSCEF document number (Motion 001) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION Upon the foregoing documents, it is This is a dispute involving an alleged oral profit-sharing agreement in which the plaintiff, Eric Goldstein, claims the defendant, Gary Glass, breached. The alleged agreement concerns the operation and management of the additional named defendant, a temporary employment agency, known as: TalentHub Worldwide Inc. (“Worldwide”). Plaintiff is seeking to recover the profit-driven compensation he is allegedly owed due to his efforts, undertaken over the course of eight years, while serving as the full-time manager of Worldwide. FACTUAL BACKGROUND: Goldstein claims that since 1980, he worked in the temporary employment industry and had previous experience managing and/or developing temporary staffing businesses. Goldstein claims that in November of 2013, he approached Glass-who at the time was Goldstein’s personal accountant-and asked if Glass would be interested in procuring funding for a new business that would provide temporary employment solutions to business-clients in the New York area. According to the complaint, Goldstein offered Glass and his potential investors full, or 100 percent, ownership of the company and in exchange for Goldstein managing and growing the business full-time, Glass offered him 50 percent of all the company’s profits once the initial investors’ capital investments were paid back. Goldstein claims that on the same day he pitched the idea to Glass, he accepted the 50-50 profit split in exchange for managing the company full-time. Goldstein alleges that this agreement, his entitlement to 50 percent of the company’s profits, was communicated to prospective employees of said to-be-formed company and was reflected in the business plan Glass used to pitch the company to potential investors. The plaintiff has attached to the complaint, various e-mails sent by Glass to these various investors and prospective employees. Plaintiff claims that these e-mails demonstrate Glass’s intent to be bound by the terms of the alleged oral profit-sharing agreement. For example, in one such email dated November 25, 2013, Glass announced that Goldstein would “be entitled to 50 percent of the profits” for his “introduction and management of the group” (NYSCEF Doc. No. 3 4). Additionally, in another email to potential investors, dated November 29, 2013, Glass stated, “I am in the process [of] forming an investment group to raise approximately 500 K. I want 4 investors in addition to myself to contribute 100 K each. The business is an employment agency. Without getting into too many specifics unless you wish, I expect the business to be profitable by the 3rd quarter of year 1. Optimum sales are estimated at 9 million and will not be realized until quarter 10 of formation. Estimated income is 5 percent of sales. Whenever the cash flow is positive the investors will have their capital returned. When the investors have all their capital returned there will be a 50-50 split of the profit between the investment group and the person who is bringing in the talent and assisting in the development of the business. Upon sale of the business in at least 4 years, the investors will receive 60 percent of the proceeds. There will be an investment meeting at 1 PM this Wednesday. I will be preparing a spread sheet by this Sunday for all who wish to view it. NYSCEF Doc. No. 4 (emphasis added). Plaintiff contends that on December 1, 2013, Glass allegedly circulated this spreadsheet to the investors that outlined his business plan and again reiterated that Goldstein would be entitled to 50 percent of the profits pursuant to his role as manager of the business (NYSCEF Doc. No. 5). The spreadsheet includes that, identified under “Weekly Salary Cost” as “E”, and identified under the “Investment infrastructure” column as “B”, B was entitled to 50 percent of profits (NYSCEF Doc. No. 5 at 4-6). Goldstein alleges that the agreement also indicated that he would be paid what was termed to be an “advance draw” of $10,000 per month until the company became profitable. Additionally, assuming the company did well and the value of Goldstein’s profit share exceeded his monthly draw, the spreadsheet includes he would be given additional catch-up payments (NYSCEF Doc. No. 5 at 6). However, the complaint is silent as to what agreement that parties reached, if any, as to what would happen to the “draw” if the company suffered losses instead of becoming profitable. On December 2, 2013, the Articles of Incorporation for Worldwide were filed with the New York Department of State and the company became operational and began pursuing clients. Beginning from the time of the company’s formation, Goldstein claims he was employed at Worldwide as a full-time, at-will employee and served in the role of Worldwide’s lead manager for eight years. Plaintiff claims that the company became profitable beginning sometime in the fall of 2014 and continued to be profitable through January of 2022. In the complaint, Goldstein claims that from the time he began in December 2013 until early 2022, he was paid $10,000 per month as an advance draw against his profit share and also received approximately $10,000 per year in catch-up payments. Plaintiff claims that on multiple occasions, including in late 2021, he approached Glass regarding the company’s profits and alleged profit-sharing agreement. Then, at some point in 2021 and as outlined in further detail in the complaint, the parties’ relationship began to substantially deteriorate. Goldstein allegedly stopped working for and being paid by Worldwide on January 19, 2022. Goldstein alleges that after his employment at Worldwide ceased, he never received payments from Glass or Worldwide regarding his profit share or otherwise. Additionally, Goldstein claims that during a November 2021 conference call, Oren Glass, the defendant’s son and a shareholder/owner of Worldwide, when referencing Goldstein’s profit-share allegedly acknowledged that, “conservatively speaking, [Goldstein] was owed north of $1,000,000″ (complaint at 61). Goldstein claims that during this period, Glass and his son transferred nearly $ 3 million from Worldwide bank accounts into their personal accounts or to third parties on Glass’s behalf. Goldstein claims that while making these withdrawals and while admitting Goldstein was entitled to a share, the defendant and his son did not conduct any formal reconciliation, and/or refused to calculate or provide any accounting regarding the amount of profits due to Goldstein under the agreement. Based on these factual allegations, plaintiff, in September 2023, commenced this action against both Glass and Worldwide with the complaint asserting four causes of action. The first cause of action is for breach of contract. The second cause of action is for breach of the implied covenant of good faith and fair dealing. The third cause of action is for unjust enrichment. The fourth cause of action is for promissory estoppel. In Motion Sequence 001, defendants move for an order, pursuant to CPLR §§3211(a)(5) and (a)(7), dismissing the complaint in its entirety on the grounds that the claims are time-barred and/or the complaint fails to state a cause of action. MOTION TO DISMISS STANDARD: On a motion to dismiss pursuant to CPLR §3211(a)(7), the pleadings are to be afforded a liberal construction, the facts alleged in the complaint accepted as true, accord plaintiffs the benefit of every favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87 [1994]). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). DISCUSSION: BREACH OF CONTRACT CLAIM: Plaintiff is asserting a breach of contract claim arising out of the parties’ oral profit-sharing agreement in which Glass allegedly agreed that in exchange for Goldstein working as a full-time manager of Worldwide, Goldstein would receive 50 percent of the profits. To adequately allege a breach of contract claim, a plaintiff must plead the following elements: (1) a contract exists; (2) the plaintiff’s performance in accordance with the terms; (3) the defendants’ breach thereof; and (4) resulting damages (34-06 73, LLC v. Seneca Ins. Co., 39 NY3d 44, 52 [2022]; see also Harris v. Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). Defendants first argue that the plaintiff’s breach of contract claim should be dismissed because the plaintiff has not alleged the existence of an enforceable contract, as required to adequately plead a cause of action. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract (Edelman v. Poster, 72 AD3d 182, 184 [1st Dept 2010]). According to the defendants, the complaint fails to plead any sufficiently definitive terms of the alleged agreement so as to demonstrate the existence of a binding and enforceable contract. Specifically, plaintiff failed to provide the essential terms and conditions that the parties would have needed to agree to in order to have mutually assented as to such. In an attempt to highlight this, for example, the defendants claim that the complaint is silent as to what, if anything, Goldstein would receive or have to pay if the company suffered losses instead of becoming profitable. As compensation for his work, Goldstein alleges he was entitled to be paid $10,000 per month as an “advance draw” on anticipated profits (complaint
23; 26; 66). Thereafter, Goldstein alleges he was entitled to a payment of money which, in combination with the “advance draw” of $10,000 of profits, would then equal “50 percent of profits” of Worldwide (Id.). However, defendants assert that the complaint is silent as to what the parties allegedly agreed would happen to the money Goldstein had received as an advance in the event the expected profits did not materialize. Defendants believe that this is an essential term, which the absence of, renders the purported oral agreement unenforceable as a whole. They point to the fact that the company only became profitable, according to the complaint, sometime in the fall of 2014 and thus, by implication, was not profitable before then. Defendants maintain that the lack of any details in the complaint concerning the effect of these purported losses on Goldstein’s right to keep his advance draw payments and/or his rights to future profits renders the alleged oral agreement indefinite and unenforceable. Defendants also argue that the complaint does not provide any specifics as to what constituted profits, how and by who these profits were to be calculated, and as stated above, who would be held responsible for any losses. In short, the defendants argue that a profit-sharing agreement, in order to be definite and enforceable, must account for not only profits but must also account for how losses should be allocated or shared as well. Defendants insist that these omissions mean any purported oral profit-sharing agreement between the parties is too vague and/or indefinite to be enforceable. The problem for the defendants is that the pleading standards for breach of contract in New York are not so strict or onerous so as to preclude claims like those alleged under the circumstances herein. “To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound” (Kolchins v. Evolution Mtks., Inc., 128 AD3d 47, 59 [1st Dept 2015]). That meeting of the minds must include agreement on all essential terms (Id., relying on Kowalchuk v. Stroup, 61 AD3d 118, 121 [1st Dept 2009]). To create an enforceable contract under New York law, there must be “a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Express Indus, and Terminal Corp. v. N.Y. State Dep’t. of Transp., 93 NY2d 584, 589 [1999]; Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 NY2d 105, 109 [1981]). The doctrine of definiteness is well established in contract law and, in short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to (Korff v. Corbett, 18 AD3d 248, 250 [1st Dept 2005]). Nevertheless, New York courts have acknowledged that “the concept of definiteness cannot be reduced to a precise, universal measurement” (Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 74 NY2d 475, 482 [1989]). The Court of Appeals has instructed lower courts to apply the “definiteness doctrine” sparingly, because “at some point virtually every agreement can be said to have a degree of indefiniteness, and if the doctrine is applied with a heavy hand it may defeat the reasonable expectations of the parties in entering into the contract” (Id. at 483). Only as a last resort should a court determine that a party’s promise is so vague or indefinite as to be unenforceable as a matter of law (Id.) At least for the purposes of having sufficiently stated a breach of contract claim so as to withstand a motion to dismiss, the plaintiff need not have alleged the exact end date to the profit-sharing agreement, the effect of losses on the plaintiff’s ability to receive advance draws, the allocution of responsibility for losses, or a mechanism for determining the exact amount of the plaintiff’s rightful share of the profits. To require all these terms and conditions to be laid out in the complaint in such specific detail would run afoul of the clear instructions of the Court of Appeals not to apply a heavy hand when determining whether a party’s alleged promise is sufficiently definite to be enforceable. It would also run afoul of the liberal pleading standards cited above. Therefore, applying these principles, the Court finds that plaintiff has adequately alleged definiteness of the material terms of the alleged agreement to support the existence of an enforceable contract. Here, the complaint alleges that “Goldstein would receive 50 percent of all Company profits…in exchange for managing the Company full-time” (complaint
