Opinion
570581/05.
Decided December 14, 2005.
Defendants appeal from an order of the Civil Court, New York County (Joan M. Kenney, J.), dated June 14, 2005, which (1) denied their motion for summary judgment dismissing the complaint; (2) denied their motion for partial summary judgment as to liability on their first and second counterclaims; and (3) granted plaintiff's cross motion to the extent of compelling defendants to produce specified documents. Plaintiff cross appeals from that portion of the aforesaid order which denied his cross motion for summary judgment on his first and second causes of action, and for summary judgment dismissing defendant's first and second counterclaims.
Order (Joan M. Kenney, J.), dated June 14, 2005, modified to (1) dismiss the complaint as against defendant Debra Rothberg, and the third and fourth causes of action as against the remaining defendant; and (2) grant plaintiff's cross motion to the extent of dismissing defendant's first counterclaim; as modified, order affirmed, with $10 costs.
PRESENT: McCooe, J.P., Davis, Gangel-Jacob, JJ.
In this action for breach of a severance agreement, unpaid wages under Labor Law § 198, and recovery of a bonus based upon breach of contract and quantum meruit, the employment agreement contained a provision stating that the "determination of whether and the amount of a bonus is . . . in the sole discretion of the firm." Since the agreement unambiguously provided that payment of a bonus by defendant law firm was purely discretionary ( see Kaplan v. Capital Co. of Am., 298 AD2d 110, lv denied 99 NY2d 510), it should have been enforced according to the plain meaning of its terms ( see Greenfield v. Philles Records, 98 NY2d 562, 569; Modugu v. Continuum Health Partners, 3 AD3d 422). Moreover, plaintiff was barred from recovering such bonus under the clear and unambiguous terms of the release dated December 12, 2002, executed by him. Under that release, plaintiff relinquished "any and all claims . . . relating to the employment relationship and/or the termination of the employment relationship based upon any contract, whether express or implied, oral or written." At the time of the release, plaintiff, an attorney, knew of the potential bonus claim for which he now seeks compensation, but failed to include a reservation of rights expressly excluding this claim from the release.
Given that payment of the bonus was expressly stated to be discretionary in the employment agreement and plaintiff failed to demonstrate any grounds to invalidate the release such as fraud, duress, illegality or mutual mistake ( see Mangini v. McClurg, 24 NY2d 556, 563), summary judgment dismissing plaintiff's third cause of action should have been granted. For parallel reasons, plaintiff's fourth cause of action to recover bonus compensation in quantum meruit is without legal merit and should have been precluded as a matter of law (see Kaplan v. Capital Co. of Am., supra, 298 AD2d at 111).
The complaint is dismissed in its entirety as against the individual defendant, who did not assume any personal liability under the employment agreement. The ambiguous e-mail relied upon by plaintiff was insufficient to raise an issue of fact as to whether there was an assumption of personal liability since it did not constitute "clear and explicit evidence" of the individual defendant's intention to superadd her personal liability to that of her principal ( see News America Marketing, Inc. v. Lepage Bakeries, Inc., 16 AD3d 146, 147).
Defendant law firm's first counterclaim sounding in fraud in the inducement of the severance agreement fails as it "merely is an improper attempt to recast the breach of contract claim in terms of fraud" ( Canstar v. Jones Constr. Co., 212 AD2d 452, 453).
Finally, to the extent that the court-ordered discovery relates to the parties' remaining claims, the court below properly determined that an attorney's fees arrangement between the law firm and its clients is not privileged ( see Matter of Priest v. Hennessey, 51 NY2d 62, 69) and that the law firm's time records/billing statements are discoverable so long as no confidential communication is disclosed.
This constitutes the decision and order of the court.