Tini v Alliancebernstein L.P.

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Tini v Alliancebernstein L.P. 2012 NY Slip Op 31670(U) June 14, 2012 Supreme Court, New York County Docket Number: 100244/2012 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 512512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JSX. PRESENT: PART Lfi; JusUce - Index Number : 100244/2012 TINI, JAY D. INDEX NO. VS. MOTION DATE ALLIANCEBERNSTEIN L.PI SEQUENCE NUMBER : 001 - MOTION SEQ. NO. DISMISS 3 ,were road on thlr motion toM' Notlee of MotlonlOrderto Show Cause -Affldavltm - Exhlbltm Anawsrlng Affldavlb - Exhlblta The following pipers, numbered 1 to / Replylng Affldavltm &%s 1-2 (No@). IW 5 ) . s INo(@). FILED NEW YORK COUNTY CLERK'S OFFICE Dated: I. CHECK ONE: bl 13[t7- u q Q + # s ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION 18: ................................................ .x, CASE DISP08ED ,J.S.C. ) i. . WNON+INAL DISPOSITION 0GRANTED B E N I E D 0GRANTED IN PART OTHER 0SElTLE ORDER SUBMIT ORDER DO NOT POST 0FIDUCIARY APPOINTMENT [7 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 -X _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ I _ JAY D. TINI, Index No. 1 0 0 2 0 4 / 2 0 1 2 Plaintiff - against - DECISION AND ORDER ALLIANCEBERNSTEIN L.P. and ALLIANCEBERNSTEIN HOLDING, L . P . Defendants I. THE PARTIES' AGREEMENTS The Century Club Plan Award Agreement 3 and the Incentive Compenaation Award Program and 2010 Long Term Incentive Plan 2010 Award Agreement 7 3, both between plaintiff and defendants, dated December 10, 2010, and incorporated in the Verified Complaint, provide as follows. First, plaintiff, defendant AllianceBernstein L.P.'a former employee, and referred to as 'Ithe Participant": shall provide the Partnership with prior written notice of the Participant's intent to terminate employment with the . . 60 partnership . . . . T h e notice period shall be days. Aff. of Joseph Baumgarten Ex. 1, Schedule A , and Ex. 2. Second, plaintiff: will continue to be eligible for base compensation (salary and/or commissions) and benefits during t h e notice period provided that the Partnership may, in its sole discretion, require the Participant to discontinue regular duties, including prohibiting the Participant from further entry to any of the Partnership's premises. LiL tini ,139 1 [* 3] The parties do not dispute that plaintiff provided defendant partnership written notice October 12, 2011, of his intent to terminate employment with the partnership Friday, December 9, 2011. Paragraph 3 of the agreements, particularly when construed against AllianceBernstein L.P., the undisputed drafter, is susceptible of the interpretation that plaintiff was entitled to his salary, commissions, and any benefits that would vest through December 9, 2011. Cowep & Co . v. Andergon, 76 N.Y.2d 318, 323 (1990); Jacobson v. Sassower, 66 N.Y.2d 991, 993 (1985); Arbeeny v. Kennedy Exec. Searc h, Inc., 7 1 A.D.3d 177, 1 8 2 (1st Dep't 2010); Burqos v. Metro-North Cornmuter R.R., 40 A . D . 3 d 3 7 7 , (1st 378 Dep't 2007). Defendants, in addition to being entitled to the advance notice of 60 days, in turn were entitled to limit or eliminate plaintiff's duties in the event defendants found his services or presence undesirable, while plaintiff remained subject to his obligations of undivided loyalty and noncompetition as an employee. Nothing in the agreementa permitted defendant to reduce the notice period of 60 days as they did. Although both defendants and plaintiff were entitled to terminate his employment at any time for any reason, and defendants were not obligated to provide any advance notice, once plaintiff met his unilateral obligation to provide the notice required of him, 7 3, specifically applicable in that event, governed defendants' ensuing obligation. Israel v. Chabra, 12 N.Y.3d 158, 168 n . 3 (2009); Sportschannel A S ~ O C . Sterlinq Nets. L.P., 25 A.D.3d 314 (1st v. tini -139 2 [* 4] Dep't Chemical Bank v, Stahl, 2006); 2 3 3 A.D.2d 4 6 0 , 461 (1st Dep't 1996). Paragraph 7 of the Century Club P l a n Award Agreement and the identical 6 of the Incentive Compensation Award Program and 2010 Long Term Incentive Plan - 2 0 1 0 Award Agreement, on which defendants rely, provide that plaintiff's right to the vesting of benefits on future dates: shall not confer on the Participant any right to continue in the employ of the Partnership and shall not in any way interfere with the right of the Partnership to terminate the service of the Participant at any time f o r any reason. I . This paragraph of the agreements, again when construed d against the drafter, is susceptible of the interpretation that first, before plaintiff provided notice of his resignation, his right to the vesting of benefits on future dates did not limit defendants from terminating his employment immediately. Second, after he provided notice of his resignation, his right to the veeting of benefits after that resignation 60 days later did notconfer a right to continued employment until future vesting dates after the 60 days. 11. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT Plaintiff's breach of contract claims for Balary, commissions, and benefits due plaintiff through December 9, 2011, thus survive dismissal. As his salary and commissions, at minimum, constitute wagee under New York Labor Law 5 190, his claims under Labor Law § 198 also survive. Therefore the court denies defendants' motion to dismiss the complaint based on documentary evidence and failure to state a claim. tini.139 3 C.P.L.R. 5 [* 5] 3211(a) (1) and ( 7 ) . Defendants shall a n s w e r t h e complaint consistent with C.P.L.R. 5 3211(f). This decision constitutes the court's o r d e r . DATED: June 14, 2012 L - WbLh35 +w LUCY BILLINGS, J.S.C. FILED NEW YORK COUNTY CLERKS OFFICE tini.139 4

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