Kramer v. Greene

• Decision Date: 11 August 2016
• Citation: 142 A.D.3d 438,36 N.Y.S.3d 448,2016 N.Y. Slip Op. 05776
• Parties: Jay D. KRAMER, Plaintiff–Appellant, v. Arthur B. GREENE, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 438

36 N.Y.S.3d 448

2016 N.Y. Slip Op. 05776

Jay D. KRAMER, Plaintiff–Appellant,

v.Arthur B. GREENE, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Aug. 11, 2016.

Barack Ferrazzano Kirschbaum & Nagelberg, LLP, Chicago, IL (Robert E. Shapiro of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellant.

Cohen Tauber Spievack & Wagner, P.C., New York (Sari E. Kolatch of counsel), for respondents.

TOM, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, WEBBER, JJ.

Orders, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about December 12, 2014, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's motion for summary judgment, unanimously modified, on the law, to deny defendant's motion, and otherwise affirmed, without costs.

Plaintiff, an attorney, assisted defendant Arthur B. Greene, an accountant and financial manager, in various matters that Greene handled as a literary agent for Stephen King. While plaintiff was initially compensated on an hourly basis, in or about 1988, Greene began paying him a percentage of the commissions that he received from King on completed deals, with the percentage increasing over time to compensate plaintiff for work he was doing on projects that were not generating any revenue.

On March 30, 2012, plaintiff was terminated after King stated that he did not want him working on his business. At first, defendants continued to pay plaintiff a share of Greene's commissions on completed work, but they soon stopped paying him. As a result, plaintiff commenced this action in which, in the now remaining causes of action, he seeks to recover, under theories breach of an oral contract, or alternatively, quantum meruit or unjust enrichment, a share of Greene's commissions on revenue-generating projects on which plaintiff completed his work before he was terminated. Defendants contend that once plaintiff stopped providing services for Greene, he was not entitled to any further compensation, even on completed deals that were still generating commissions.

An oral agreement may be enforceable as long as the terms are clear and definite and the conduct of the parties evinces mutual assent “sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050 [1999] ; Carlsen v. Rockefeller Ctr. N., Inc., 74 A.D.3d 608, 903 N.Y.S.2d 52 [1st Dept.2010] ). However, not all terms of a contract need be fixed with absolute certainty, and courts will not apply the doctrine of indefiniteness to “defeat the reasonable expectations of the parties in entering into the contract” (Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 483, 548 N.Y.S.2d 920, 548 N.E.2d 203 [1989], cert. denied 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 [1990] ).

Where “ there may exist an objective method for supplying the missing terms needed to calculate the alleged compensation owed plaintiff,” a claimed oral agreement is “not as a matter of law unenforceable for indefiniteness” (Basu v. Alphabet Mgt. LLC, 127 A.D.3d 450, 450, 8 N.Y.S.3d 273 [1st Dept.2015] ; Abrams Realty Corp. v. Elo, 279 A.D.2d 261, 717 N.Y.S.2d 603 [1st Dept.2001], lv. denied 96 N.Y.2d 715, 730 N.Y.S.2d 31, 754 N.E.2d 1114 [2001] ).

Defendants argue that the motion court correctly dismissed the breach of contract claim because plaintiff did not establish that there was a meeting of the minds between himself and Greene that commission payments would continue even after he was no longer providing any services for defendants. However, although the party seeking to enforce the contract bears the burden at trial to establish that a binding agreement was made and to prove its terms (see Sardis v. Frankel, 113 A.D.3d 135, 144, 978 N.Y.S.2d 135 [1st Dept.2014] ), each party bears the burden of demonstrating that its motion for summary judgment should be granted due to the absence of any genuine issue of material fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). It is not until that burden is met that the burden shifts to the opposing party to demonstrate the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Furthermore, where questions of fact and credibility exist with respect to the existence of a binding oral agreement, and the terms thereof, summary judgment in favor of either side is inappropriate (see Sabre Intl. Sec., Ltd. v. Vulcan Capital Mgt., Inc.,

95 A.D.3d 434, 436, 944 N.Y.S.2d 36 [1st Dept.2012] ).

Here, defendants did not present evidence establishing the terms of Greene's commission agreement with plaintiff. Rather, they relied primarily on plaintiff's deposition testimony, which allegedly demonstrated that he and Greene never discussed, let alone came to any formal agreement on, whether the payment of commissions related to successful projects on which plaintiff had already completed his work would continue after his employment with defendants had ended.

At his deposition, when asked if there was any agreement between himself and Greene under which “[he] would receive a percentage of commissions ... regardless of whether or not [he][was] ... continuing to do any work for Arthur Greene,” plaintiff responded, “We both understood what a commission is. We were both experienced in the industry and we understood that a commission was payable from a percentage of a client's earnings for so long as the client was receiving income from deals that we worked on on a contingent basis.” Plaintiff also testified, “[I]t was my complete expectation that in accordance with the industry custom I would be paid my commissions[,] and we had these conversations repeatedly.”

While plaintiff acknowledged that Greene never expressly stated that this was his understanding or that plaintiff would continue to be paid commissions if he no longer worked on King matters, defendant presented no competent proof of Greene's understanding. Plaintiff negotiated his agreement with Greene alone, and Greene was not deposed and did not submit an affidavit in support of defendants' position that plaintiff's entitlement to a share of commissions ended when his employment was terminated, even on completed projects...