Opinion
03-19-2024
Damian NOTO, Plaintiff–Appellant, v. PLANCK, LLC doing business as Patch Media, et al., Defendants–Respondents.
Kaiser Saurborn & Mair, P.C., New York (Daniel J. Kaiser of counsel), for appellant. Judd Burstein, P.C., New York (Judd Burstein of counsel), for respondents.
Kaiser Saurborn & Mair, P.C., New York (Daniel J. Kaiser of counsel), for appellant.
Judd Burstein, P.C., New York (Judd Burstein of counsel), for respondents.
Kern, J.P., Moulton, Gesmer, Mendez, Michael, JJ.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about March 21, 2023, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss plaintiff's claims for breach of contract for failing to provide him 75 equity units in defendant Planck, LLC d/b/a Patch Media and 3% of defendant Hawking LLC d/b/a Market News International, unanimously modified, on the law, to deny dismissal of his claim for 75 equity units, and otherwise affirmed, without costs.
The elements of a cause of action for breach of contract are "the existence of a contract, the plaintiff’s performance thereunder, the defendant’s breach thereof, and resulting damages" (Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426, 913 N.Y.S.2d 161 [1st Dept. 2010]). The agreement must be supported by consideration, which consists of either a benefit to the promisor or a detriment to the promisee (see Lebedev v. Blavatnik, 193 A.D.3d 175, 183, 142 N.Y.S.3d 511 [1st Dept. 2021]). Consideration may consist of an at-will employee’s decision to continue his employment, or to refrain from doing an act that the employee has a legal right to do (see Halliwell v. Gordon, 61 A.D.3d 932, 933–934, 878 N.Y.S.2d 137 [2d Dept. 2009]; cf. Tierney v. Capricorn Invs., 189 A.D.2d 629, 592 N.Y.S.2d 700 [1st Dept. 1993], lv denied 81 N.Y.2d 710, 599 N.Y.S.2d 804, 616 N.E.2d 159 [no consideration for alleged promise to pay employee compensation greater than that set forth in the employment agreement as the plaintiff already obliged to continue employment under written employment contract]).
The complaint, supported by plaintiff’s affidavit, alleges that he was promised 75 equity units in Planck, LLC d/b/a Patch Media (Patch), in part, as consideration to refrain from leaving his employment with the company. Accepting these allegations as true and according plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]), he has sufficiently pled a cause of action for breach of contract with respect to the 75 equity units in Patch.
Plaintiff, however, failed to raise any arguments on appeal with respect to the motion court’s denial of his claim for 3% of MNI as against defendants Patch and MNI (see Shmuklyer v. Feintuch Communications, Inc., 158 A.D.3d 469, 470, 70 N.Y.S.3d 490 [1st Dept. 2018]). In any event, the motion court correctly dismissed this claim against Patch and MNI, who were not alleged to be parties to this oral agreement (see Chestnut Holdings of N.Y., Inc., v. LNR Partners, LLC, 106 A.D.3d 575, 965 N.Y.S.2d 470 [1st Dept. 2013], lv denied 21 N.Y.3d 866, 2013 WL 5180072 [2013]).