Newmark & Co. Real Estate, Inc. v. Frischer , 145 A.D.3d 421 ( 2016 )

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 25, 2014, which granted plaintiffs motion to dismiss defendant Frischer’s counterclaims, affirmed, without costs.

The operative employee handbook stating, inter alia, that bonuses were paid at the sole discretion of plaintiff, and the acknowledgment of the handbook’s terms signed by defendant, conclusively refute the counterclaims based on the alleged oral promise to pay an annual nondiscretionary bonus (see Kaplan v Capital Co. of Am., 298 AD2d 110 [1st Dept 2002], lv denied 99 NY2d 510 [2003]).

Nor was the discretionary bonus policy modified by the alleged oral agreement. As defendant’s acknowledgment makes clear, “[N]o supervisor, manager or other representative of [plaintiff] has the authority to make any verbal promises, commitments, or statements of any kind regarding the Company’s policies, procedures, or any other issues that are legally binding on the Company.”

The quasi-contractual counterclaims based on the alleged agreement are likewise precluded by the discretionary bonus policy (see Kaplan, 298 AD2d at 111; De Madariaga v Union Bancaire Privée, 103 AD3d 591 [1st Dept 2013], lv denied 21 NY3d 854 [2013]).

The alleged oral promise to pay acquisition proceeds, however, was not established to be a “bonus” within the scope of the discretionary bonus policy. The complaint alleges that the promised payment was not performance-based, but was an inducement to keep defendant from quitting (see Gruber v J.W.E. Silk, Inc., 52 AD3d 339 [1st Dept 2008]). The breach of contract counterclaim based on this alleged promise is nonetheless barred because the promise was not in writing, as required by the broad language of the acknowledgment (see Jordan Panel Sys. Corp. v Turner Constr. Co., 45 AD3d 165, 179-180 [1st Dept 2007]).

The quasi-contractual counterclaims, to the extent predicated on an alleged agreement to pay acquisition proceeds, likewise fail. Such claims require an element of reasonable reliance on a promise, a reasonable expectation of compensation, or an inequity, all of which are negated where, as here, the plaintiff receives adequate compensation and signed a written acknowledgment confirming the fact that no representative of plaintiff had authority to make legally binding verbal promises (see Kaplan, 298 AD2d at 111; De Madariaga, 103 AD3d 591).

Concur—Sweeny, J.P., Manzanet-Daniels and Webber, JJ.