Opinion
No. 1889 Index No. 155149/22 Case No. 2023-04830
06-18-2024
Damian Noto, Appellant, v. Planck, LLC, Doing Business as Patch Media et al., 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.
Before: 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 as against defendant Planck, LLC d/b/a Patch Media, 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 [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 [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 [2d Dept 2009]; cf Tierney v Capricorn Investors, LP, 189 A.D.2d 629 [1st Dept 1993][no consideration for alleged promise to pay employee compensation greater than that set forth in the employment agreement as plaintiff already obliged to continue employment under written employment contract]).
The motion court should have denied defendants' motion to dismiss plaintiff's claim for 75 equity units in Planck, LLC d/b/a Patch Media (Patch) as against Patch. The complaint, supported by plaintiff's affidavit, alleges that plaintiff was promised 75 equity units in Patch by Patch's CEO, 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 [1994]), he has sufficiently pled a cause of action against Patch for breach of contract with respect to the 75 equity units in Patch.
However, the motion court properly dismissed plaintiff's claim for 75 equity units in Patch as against defendants Hawking LLC d/b/a Market News International (MNI) and DMEP Corporation d/b/a Hale Global (Hale Global) and his claim for 3% of MNI as against Patch and MNI. As an initial matter, plaintiff failed to raise any arguments on appeal with respect to the motion court's dismissal of these claims (see Shmuklyer v Feintuch Communications, Inc., 158 A.D.3d 469, 470 [1st Dept 2018]). In any event, the motion court correctly dismissed these claims, as plaintiff did not allege that MNI and Hale Global were parties to the oral agreement for 75 equity units in Patch, and did not allege that Patch and MNI were parties to the oral agreement for 3% of MNI (see Chestnut Holdings of N.Y., Inc., v LNR Partners, LLC, 106 A.D.3d 575 [1st Dept 2013], lv denied 21 N.Y.3d 866 [2013]).
The Decision and Order of this Court entered herein on March 19, 2024 is hereby recalled and vacated (see M-2024-01837 decided simultaneously herewith).