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finding no effective oral modification when the alleged oral modification "showed, at best, only an agreement to agree, and is otherwise too indefinite to be enforceable"
Summary of this case from Woo Jung Cho v. Cinereach Ltd.Opinion
5391
September 19, 2002.
Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered July 13, 2000, after a nonjury trial, in an action to enforce an agreement to pay an annual bonus, in favor of plaintiff and against defendants in the principal amount of $154,100, plus interest, costs and disbursements, unanimously modified, on the law and the facts, to reduce the principal amount to $64,246, and otherwise affirmed, without costs.
PETER P. KENNY, for plaintiff-respondent.
GARY S. JACOBSON, for defendants-appellants.
Before: Andrias, J.P., Buckley, Wallach, Lerner, Rubin, JJ.
Plaintiff was hired as BII's president pursuant to a letter of October 1993 which provided, inter alia, that plaintiff would get an annual bonus of 10% of the earnings after interest, before taxes, and which contained certain representations regarding BII's then-current and prospective profitability. In Spring 1994, when plaintiff's review of financial records demonstrated that BII had not been profitable in 1993, he discussed his bonus clause with one of BII's owners and claimed that a "new principle" had been agreed as the basis for calculating his bonus. The trial court used the new principle as a basis, in part, for calculating plaintiff's damages, even though plaintiff testified that this new basis for calculating his bonus "was not quantified." Plaintiff's description of the alleged oral modification of the parties' letter agreement providing for a bonus showed, at best, only an agreement to agree, and is otherwise too indefinite to be enforceable (see Gray v. Lurie, 3 A.D.2d 956). Plaintiff acknowledged that he was never paid a bonus on the basis of the alleged amendment and that he never sought to enforce the alleged amendment while still employed by defendant. Nor did plaintiff raise it in his post-resignation letter, which sought only an advance on the bonus for the last fiscal year of his employment. While we do not disturb the credibility findings of the trial court which are amply supported by the record, we are nonetheless constrained to modify the final judgment by removing those damages attributable to the alleged amended bonus formula. Under these circumstances, where plaintiff always accepted bonus payments calculated in accordance with the parties' writing, there is insufficient extrinsic evidence to support the different formula first urged by plaintiff in this action (cf. Rackson v. Sosin, 14 F.3d 23, 24-25, 2001 U.S. App. LEXIS 4155, *3-4 [2d Cir]), and the trial court's acceptance of that formula was error. Accordingly, the judgment should be reduced by the adjustment attributable to the alleged amendment, to wit, $89,854. However, further reduction is not warranted by defendants' challenges to the trial court's adjustments to their claimed income. While defendants are correct that the letter agreement did not in any way restrict their power to employ their standard accounting procedures, we decline to disturb the trial court's findings, based largely on credibility, that such procedures were not standard but rather utilized in bad faith to minimize plaintiff's bonus (cf. Heller v. Boylan, 29 N.Y.S.2d 653, 683, affd 263 A.D. 815). We have considered defendants' other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.