Osberg v Rajaratnam

Osberg v Rajaratnam 2012 NY Slip Op 03885 Decided on May 17, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 17, 2012
Saxe, J.P., Sweeny, Acosta, Freedman, Román, JJ.
7692 651125/10

[*1]Erik Osberg, Plaintiff-Appellant,

v

Raj Rajaratnam, etc., et al., Defendants-Respondents.




Sack & Sack, New York (Eric R. Stern of counsel), for
appellant.
Akin Gump Strauss Hauer & Feld LLP, New York (Samidh
Guha of counsel), for Raj Rajaratnam, respondent.
Shearman & Sterling LLP, New York (Casey O'Neill of
counsel), for Galleon Group, LLC, respondent.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered March 28, 2011, which, in this action alleging a breach of an employment agreement, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The record shows that pursuant to the express terms of the subject employment agreement, which plaintiff executed while represented by counsel, plaintiff was an at-will employee subject to termination "at any time, for any reason, with or without cause." Moreover, the bonus that he seeks to recover was expressly and unambiguously conditioned upon his working through the end of the relevant calendar year. Because plaintiff's employment was terminated prior to the end of the year when defendant Galleon Group, LLC folded following an investigation for insider trading and the subsequent arrest of defendant Rajaratnam, plaintiff never became eligible to receive the bonus (see Hooper Assoc. v AGS Computers, Inc., 74 NY2d 487, 493 [1989]; Kolmar Ams., Inc. v Bioversal Inc., 89 AD3d 493, 494 [2011]; D'Amato v Morgan Stanley Dean Witter Discover & Co., 268 AD2d 392 [2000]).

The record further demonstrates that plaintiff's claims for breach of an implied contract and for fraud are not viable. "[A] contract cannot be implied where there is an express contract covering the same subject matter" (Azimut-Benetti S.p.A. v Magnum Mar. Corp., 55 AD3d 483, [*2]484 [2008]), and plaintiff failed to provide factual support for the allegations that the statements made by Rajaratnam were fraudulent.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2012

CLERK