Baker v Continental Indus. Group, Inc.

[*1] Baker v Continental Indus. Group, Inc. 2015 NY Slip Op 51532(U) Decided on October 22, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
15-310/312

Wesley D. Baker, Plaintiff-Respondent,

against

Continental Industries Group, Inc., Defendant-Appellant.

Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered February 4, 2014, which granted plaintiff's motion for summary judgment on his breach of contract cause of action, (2) a judgment (same court and Judge), entered April 4, 2014, in favor of plaintiff and awarding him damages in the principal sum of $25,000, and (3) so much of an order (same court and Judge), entered October 1, 2014, as dismissed the counterclaims.

Per Curiam.

Judgment (James E. d'Auguste, J.), entered April 4, 2014 and order (James E. d'Auguste, J.), entered October 1, 2014, affirmed, with one bill of $25 costs. Appeal from order (James E. d'Auguste, J.), entered February 4, 2014, dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff established a prima facie entitlement to summary judgment on his breach of contract cause of action, to recover the unpaid portion of a sign-on bonus from his former employer. The governing employment agreement unambiguously provided for payment of a "one-time guaranteed minimum bonus of $50,000, payable in March 2011." Inasmuch as this bonus was guaranteed and non-discretionary, defendant's failure to pay it when due constituted a breach of the contract of employment (see Simpson v Lakeside Eng'g, P.C., 26 AD3d 882, 882-883 [2006], lv denied 7 NY3d 704 [2006]). In opposition, defendant failed to raise a triable issue that the bonus was conditioned on plaintiff's performance. "Because the bonus clause is reasonably susceptible of only one interpretation, which may be gleaned from the face of the contract," extrinsic evidence is inadmissible to vary the terms of the written agreement (Namad v Salomon Inc., 74 NY2d 751, 753 [1989], affd 74 NY2d 751 [2008]) or to engraft a condition to payment not set forth in the agreement (see Woodmere Academy v Steinberg, 41 NY2d 746 [1977]).

Nor was any triable issue raised by defendant as to whether it was fraudulently induced to pay the sign-on bonus by plaintiff's representations "that he would be able to bring in . . . customers and suppliers" that he dealt with at his prior place of employment, at "the same level [*2]of revenues he was generating for [that employer]." The complained of statements amounted to "essentially little more than mere puffery, opinions of value or future expectations that do not constitute actionable fraud . . . or representations of fact that should have been subjected to further scrutiny by [defendant] and therefore could not have been relied upon justifiably" (Elghanian v Harvey, 249 AD2d 206 [1988]).

This constitutes the decision and order of the Court.

I concur I concur I concur

Decision Date: October 22, 2015