Bitonti v TYCO Healthcare Group, LP

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Bitonti v TYCO Healthcare Group, LP 2012 NY Slip Op 32769(U) November 7, 2012 Supreme Court, Suffolk County Docket Number: 40838-10 Judge: Thomas F. Whelan 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. [* 1] INDEX NO. 40838-10 SHORT FORM ORDER copY PRESENT Hon. SUPREME COURT - STATE OF NEW YORK IAS. PART 45 - SUFFOLK COUNTY THOMAS F. WHELAN Justice of the Supreme Court x JOSEPH arrONTI, MOTION DATE: 7-3-12 ADJ. DATE: 9-7-12 Mot Seq. OOS-MotD 006-XMD Conf: 12/7/12 Plaintiff, SKLOVER, DONATH & FELBER, LLC Attorneys for Plaintiff Ten Rockefeller Plaza New York, New York 10020 -against- TYCO HEALTH CARE GROUP, LP, Defendant. x OGLETREE, DEAKINS, NASH, P.c. Attorneys for Defendant 521 Fifth Avenue, Suite 1700 New York, NewVork 10175 Upon the following papers numbered 1 to 84 read on this motion to dismiss ,Notice of Motion/ Order to Show Cause and supporting papers 1 - 40 ; Notice of Cross Motion and supporting papers 63 79 ; Answering Affidavits and supporting papers41 - 60; 80 - 82 ; Replying Affidavits and supporting papers 61 - 62; 83 - 84 ,Other ; (and i'tftCI lte!tlilig eOUlue! il"l~I1PPeHtind f opp()~ed to the motiotl) it is, ORDERED that the motion (005) by the defendant for summary judgment IS granted to the extent that the second, third, fourth, and fifth causes of action are dismissed; ,md it is further ORDERED that the cross motion (006) by the plaintiff for partial summary judgment on the issue of liability is denied; and it is further ORDERED that the parties are directed to appear at a conference in the chambers of the undersigned on December 7,2012, at 9:30 a.m. in Part 45, at the courthouse located at 1 Court Street - Annex, Riverhead, New York; and it is further ORDERED that the defendant's counsel shall serve a copy of this Order with Notice of Entry upon counsel for the plaintiff pursuant to CPLR 2103(b)(2) or (3) within twenty (20) days of the date hereof and thereafter file the affidavit of service with the Clerk of the Court. [* 2] I3il()llli v -Iyco I k,lithcdrc (inlUp. l,jJ 1m!..::; No. I(J-4083l-i Page :2 In thi", breach ofcuJlu'act acLiulL thl' plalllliJT, Joseph BltOJlLi, seck", eOl1lpells~lt()]"y damages and punitlvc damages against hiS formcr emptoyl'f. u.s. SurgICal CorpurdLiuJl (hercll1aJtcr retl:rred to as '"U.S SurgJcal" or the ddenclanL). a division ofdcCl'ndant TYCO I k'ulthean: Ciroup, L.P , now known as Covidien PLC The record reveals thaL the plalnti IT Ivas ellll)]uyed \-vith the delendant from August 2007 through June 2009 as a medical device salesperson The piallltilTsold, among other things, a product called Pennal,()r.1 I\t the stan of his employment, the plaintiff l'xeclited an Employment Agreement Rl~gJrding Conlidentia! Information, Inventions and Contlic[ing FmploYI11l':nt (hcrealh:r ·'the Agrel'menC). According to the AgrecmcnL the plaintiff agreed Ilot 10 divulge any tradc secrCls or inventions to ~II1Y pcrson or company (Paragraphs 1 - 4). In addition, pursuant to Paragraph 5, the plallltiJ"J"agn:cd as J()llows: DUring my employment und for a period of two years after it IS termil1i.lll'd, I "vill not. within any geographic area with which my job n:sponsibiljtlC's for U S. Surgicul wcre concerned, render services similur 10 those per!clrIncd by m(' ,It [lny time: dunng my employment din::ctly (lr indirectly to any person or company engaged 111 about to become engaged in resetllThing. developing, or producll1g, marketing or selling any type of pro duet relaTing to technology developed or acquired by U.S. Surgical \vith which I have bceoml:: !-~llniliar dunng m)-' term 01· employment \\/ith U.S Steel. In the evcnt that I am ,lssigned sales responSibilities or s11nllar responSibilities during my employment, rhe "geographIC area" covered by this paragraph shallmeull the sales territory or. JS the case lllay be, territories, or similar geographic territory or territories, J()r which I had responsibility dUring the las( twelve months ai-my employment "vith U.S. Surgical. Sub.!ect 10 the pmvision of paragraph 7 below, if. despite diligent ~llld aggt·cssivc cfi()rL I am unable to (lbtain ernployment consistent with my cclucatlull or trelining solely heeaus\;.' of tile prnvisioll or this ]Xlrag.t'up!l, such prohIbition shall bind me only If'and ~ISlong as ll.S. Surgical pays 1(l me. altcr demand and U.S Surgic;l1's rl'ccipt ni"such accounting and evidence oCtile foregoing diligent According III the plaJl1tirr, Perl1lucol is Clbiological surgie,l! implant tllcldc u1'pig skill dennis. It:-;uses includ..:: hernia ~lIld abdoll1111all'cpair, dum n:p~lIr in tile skull. and plastic and rcl'tll1structivl' surgic,ll n.:pairs o1'thc LICe and head. I [* 3] BitonLJ v I ycn I kalthcare Il1lk:\ Nn I U-40X3,s (jroup. LP <'llldaggressive elTon as U.S. Surgical may request a sum equal to my' mUllthly b<.lsepay at termination or each such month or such unemployment during the period mentioned 111 this paragraph. Paragraph 7 urthe Agreement provlL!l:s as J(lI1UWS: For tlw purposl's 1ll'paragraph.5 ahllve. '"base pay" in all cases e:\cllides blll1LlSor other extra compensatIon or bencJj[s and is suhject tD regular deductions for taxes and socml secunty payments and other lawful deductions and \vithholdings." For each month of unemployment in which [ demand payment under paragraph .5 dboV('. [ will di[igently and "aggressivdy seek employment and wi II accept any reasonable offer oj" employment and wil[ account to U.S. Surgical in detail for my efforts to obtain employment If U.S Surgical elects to make payment In accordance with paragraph 5 and thereby bind mc to this prohibition. the amount payable by II.S. Surgical shall be reduced by the amount of compcnsation that I ['cceive during such pCrl()(lli·om other employment, and U.S. Surgical may at ils optIon be relicved of the aJ"orl..':mentiol1ed monthly payment for any month 111 which r haw J"ailed to aggressively seek employnkl1t or accept reasonable employment or account to U.S. Surgical my erforts to obtain ell1ploY1111.'nt l1l'rcin as provided. Il1l' Agrccmcnt I"unlll'r provIded tbatlhe plaintiffs employment p<'lrly at will. at any time. upon notice. and with or 'without cuuse. was tcrmll1ablc by cither '['he record reveals that on ./une 12.2009. the plaintilTtcrminated his empluyment \vith the de1"cndant and on JUllC 17_1009. kgan to work I'(x TU Biosciellces. Inc. (hereafter ""1"1.':1""). which markdt:d one product named Surgill1end -' In a letter dated September ]0, 2009, the dekndunt"s in-hoLlsc counsel inlonned the plaintifTthat he violated Paragraph.5 of the i\grl~emellt by contacting a surgeon at Peconic Bay I lospltal in Suffolk County who had ordcred h:rnwcol in the past. The letter directed the p[all1titfto ccase an desist all activities 'vvitll hi" nc\v cmploy\.T and "1<.1ted. ll part: i The purposl' oj" this letter is [(l advisl: YllU that we recently karn('d The pl<'lintiITtes(ijjed (C\1\V) !\ccordin:; 1"ctel[ ll.'rmis c (hat his base pay \vas $90.000 [xr year. (0 the p[aintlll SurgilllC'nd is a biological surgical Implant made u( bovine Its lIses ll1cluck hCTl1ld.abdolllllwl. and upell wound n.'p~lil-. [* 4] I3ltonti v TYCll I Ic:.dthc<'ln: CirullI', j,P Ind",.\ No, IU-4083B I\lgc 4 that you hav", b",en engaging III activity in violation ur your Employee Agreemt:nt IZegurding ConJldcntial InJ(lnnatioll, Inwntions and Conflicting I':mployment with lJ.S. Surgical and tu demand [hat you Cl'ase such activity llllm",diall'lv . . '" * .' Paragraph 5 of this Agreement prohibits you. during the twoy(,<.1r eriod l"ollovving your JUlle 12, 2()()9 separation from U.S. p Surgical, from performing work for a competitor within the gt:ographit: sales area that you covered dunng your last 12 months \vith U.S. Surgical, which \\.'as Nassau County. Suffolk County. Ouccns and Brooklyn ill Ncvv York. We understand that .you [Ire clI1Tt:ntly performing snks l"i.::sf)onsibilities for TEl Bioscienccs, whlch is n cnmpditor of U.S. Surgicdl. within the Gcographic '1 crritory. As such. YOll arc in direct violation of the Agreement. lJ.S. Surgical demands that you immcdiatcly cease and dcsist from engaging ill sales activity for TEl Biosciences or any other competitor of U.S. Surgical within (he Geographic Territory and that you cumply in all other ways with your obligations under tht: ;\gret.:lllent. * * '" The dekndant's counsel also sent a copy ol'thc Ictter In TI::J There is no dispute that TEl terminuled the plaintifCs employment on December 10.2009. Arter unsuccessfully obtain1l'lg alternative employment, in a letter dmed Apnl 13. 2010. the pla1l1tiJYdemanded the payment of his base pay rrum the defendant in the amount 01'$45,000, fnr the period Ji'om October 1,2009 thruugh March :J 1.2009. In an attached :.dlidavit. the plaintiff detailed his em)rts to obtain cmplnymenl. In May, 2010, the pl<lIJltiffc0111mcnced a hl\vsuit in Federal District COLlrt in thc J':askrn lk;trtet of Nev\" YorL tItled lJilol1/i l' ('o\'idii!11 PLC'. Indcx No. IO-CV-2848.~ In a Iettcr datcd July l. 20 I 0, the defendant lllformcd the plaintitf that it \vould not enforce paragraph :) in the Agrccillent. hO'vvever the nondisclosure clause rcmained in clTect. On July 23. 1010. TU rClnsl,Hcd tlh.' plailltllTs employmcnt. however. the phuntifCwas terminated due to low sales production on J<'IIlLldry 31,20 II. l'he plaintilT demanded (hI: payment of his base pay Cor the periud 01" ullcmpluymenL -I'he plmnti If commenccd the instant aclion upon recei vlng nollcl.'; in a IeUer. dated July 1,2010. that the defendant would not cnl()rce P,wagraph 5 of the /\greement. therehy declining to pay the pbintilThis base pay. Ihe eOll1p Iell11t cuns ISl::;qt' 11 VI..' C~lllses \l r acti un: bre:.lCh 0 r cont faCt. intcntll,nn I Illisn:prl'scnt:ltl(lil. Ill'gligent misrepresentation. lortiOLls interfercncc \vlth e.\isting and prospective business rt.:latiullshlpS. and violation or Ncvv '{ork State I,abor r"a\v ~ 198 (I -ell. The -I The Cnurt notes that there <.lrC supporting no documents regarding this malleI' [* 5] Biltlllll v I'ycll I !ealthcan.' (jroup. Jl1dL':\N(l. IO-.. JX38 H P~l);e 5 LP gravanh.'n or Ihe complaint is Ihat Iho: c!<..'len<.!an("Iclh:r oalL'd ScplembL'r 30. 1009 misrepresellled Iwo I~H;ts:that Ihe plainlilTwas engaging in activity in violation orthe Agreemellt and Ihatlhe pJainti IIwas working fi:>ra competitor in his lonner geographic tern lory. In additioll.the plaintilTsl.'l'ks thc paymcJll orhis base pay pursuant to Paragraph 7 in the Agrcclllent. Thc {kfcndant asserteo a general denial in its answer. and slilted the follmving six alTinnativl..' ol.'!enses: l~l1lure to state a cuuse of action. waiver. unch:an hands. estoppel. and [lilure to mitigate damagcs. Th..: Courl's computer rev..:uls that a notc orissuc was filed on Arml l·t ~()12. Thc dl.'!enoant no\v lllOWS for slIll1llwry judgment dismissing the complamL The plaintill {TOSs-moves li:)r partial summary judgm..:nt on th..: issue of liability. In support or its molion. the dclendant submits. among olhl.:r things. the pleadings. copies of the Agn:cmenL alor..:mentiolll.'d Ictl..:rs. ponions of the deposition tcstimonies orthe plaintiff. Frank Zych. Marcellus Willis. and Rl.'bl'l.'ca Ciolostl..'ill. the plainliirs personal anidavil. datl..'d April:!3. 2010. and several e-Illaiis. 'Ih? defendant contends thaI thl.' plainti rr first breached the I\gr('('menl hy selling Surgimcnd to a client nfthl.' plaillliffs in Pecomc Bay Hospiwl in Suffolk County. where he previously sold producl". In additinn. inasllluch as it released the p!ainlilTli·Olll thl.' J\grI..'L~mcntalll.'r the plaintilT hrl.'tlcllL'd it. that thl..'dekndant has no duty to comply with the plaintitTs dellland h,r paymL'nt or his base pay. and. in any cVI..'nt.the defendant released the plaintifr from complying with the noneompl.'te portion orlhc Agreement. The plaintifTtestitied at his deposition that he began selling Permacol for the dell'lldant in Octl)bcr ::WOStll1111ng the other products he sold such as syntlwtie mesh. fixation lools. iapdl"(}scopic touls and trocars. Ilis tl'rritory originally consistl.'d llCNassau and Sulll,lk CountIes, and thell his tI.:rrilory l.'hanged sokly to \I/estern Long Island. and he dId not work in Suffolk ('nunty. Ill.' t('stilll..'d th~\l he bl'gan selling Pcrl11acol aiter his territory changed. \Vhcn h(' applied rUt·~l.i()b ul '11:1, Ill' told tl1l..'interviewl.'r that tlll.:n: was no probk:l11 with a non-competition agrl..'emenl with his forml..'r employer hecause the pJaintirfundcrstood thl..'Agreement to consist of his promise: not to share technology or privikgcd \nlonnaliol1 from U.S. Sted with TEl. J Ie k~lrlwd Ub(lU!·J I~r·s new product Surgimend and statl..'d that it had soml..' overlapping indications to Pl.'l"IlWcol. Wh ¢... he receiwu the letter from the defendant tn c('a$1..'\\illrking for TEL he v,'as n lIll<-lWUre rth(' lechnology behind the two products and did nOlthink the products were similar o enough to cause ~Iprohlem related to the Iloncompeh.' clause in the J\greel11ent. lie states that he \Vas slispelltk'd from TEl nn Septemher 30.2009 and terminatcd in l)cCl:mhc:r 2009. lie calkd llmner colleagul..'s and l"ecruitl'rs and searched online lor a nev,' jnb. lie stated that he \vas r ¢... ctl'd fl'um sevl.'r'll jobs unrdal ¢... lu his lormcr joh due 10 lack or e:\perience and when he did j ¢... d ha\·e tIll' ¢... xpCril..'llCCIll.'was rejected because thl..'Agr ¢... ement was still in efli.'ct. The plaintirf staled Ihal hy the time TEl rehired hml 1ll July 1010. he had lost all or his sales contacls and was unahk tn generatl.' sufficient sales. 111.' stated Ih'll as a rcsult. he was terminated in January 2011 Frank.l. lych . .Ir. testified at his d ¢... positioll thaI he hired the plaintilTat TEl on the basis Ilf his din.'cl e:\pl.'riencc in sdling hiologlCs. ! Ie rl.'ceivcd n copy orthe leltl.'r fl'om I I_S. Sted [* 6] I~itonli v 'J yco ! lealthcare Inlk''\ No. I 0-40X3X Page (, Group, LP \\/11ich stated lhalthe p!aimilfwas III viulaiioll With the i\gr~ement between lJS Steel and the pl<'lIntilf /ych stuted that hl' contacted the corporale attorney t()r advicc. /ych 1ll1()f]11eU the plaintitYthdt he v,mule! bl' suspended and that the pL.lintifT\vould IKed to gel the Agreement rescinded . .1\( that time. the plaintifThad n:giskred his first sak of$12J)OO. /'Yl'h recall:,; lermll1<iting the plamtilrs employment on Dceembl'r 1 1. 2009. Although Lyeh rehIred the plaintifr approximately six months lah.'L he subsequently' terminated thl' plaJllli ITart!..'!" aving h pustcd no salL:s t()r SIX months. MmceJlus WlIlls testified at his deposition that he was the p!amtiJrs superv'lSor at US Sled \Villis st,-l!l:d that li'om October 2008 through the end urthe plaintiJrs employment with the detCndant. the pbintirfs sales tcrntory \vas diminished to include only Nassau County. Queens and a few ilccuunls in Brooklyn, which dccreased the number of the pla1l1tiffs accounts. Ilc states that the plall1titT no longer sold products for the dd'endanl in Surrolk County from October 200g through thl' end of his employment 'vvlth the defendant in .June 2009. Willis slates that afkr the pJal11tiJl terminated his employment with the defendant, Will is received an l'mail Il'orn a cownrklT who observed the pJalllti If speaking to a customer of the defendanl about purchasing ~urgimend in one orthe (lId hospitals he covered ill Suffolk County. Willis then repur\ed thIS activIty to Rehccca Walsh Goldstein. Rebecca Walsh Goldstein testit~ed at her dcposition that she is employed as a senior employment counsel for the deJCndant. She slates that the defendant develops. manufactures and sells mechcal supplies, llledicaJ deVICes and pl1armaccuticals. She slated that she learned ufthe plall1tift~s activity l'i-om convcrsations with Marcellus Willis. Cioldstein states that she wrote the letters dared September 30. 2009 to the plaintifTand TI-:I. The plamll!L.lvcrs 111 an~davitlhat since he \-vas terminated by TEL he has diligently hIS :md aggn:ssivcly sought l'mployment consistent with his eduGltion and training. Hc states that he I"clll<.\insuncmployed He spoke with si-'\ head hunters \\lho spcew!J;;c in medical c1l:vice sales positluns and told the plaliltilfthat they \vould not consider sending tht: plallltilTs resume to several companies whD they knew were seeking a medical device salesperson of the plaintifrs caliber. bL'C~lUSC (0111)XlI1lC"S the would not consider his application once they were aware or the tcrills or his Agrcement with the dclendclnt. The plaintiff listed all the intervie'vvs he attended and people he spoke with. In uPPosllion and ill support orhis croSs lllotinn. the plainlifTsubmils, ,lllwng other things. ~l cupy or his pcrsumd aflidavit which was previously suhmltted by the defendant, <llld <.l copy nrlhc dcrcnd~lI1t's response to the plainlilfs Notice to i\dlllit wherein the defendant <ldlniued lh,lt during the plall11itr's I(lst twelve months ofemployme,nL he wurkcd lJl Nassau County. ()ueel1s County and Kings County The pla1l1tilfalso relics upon the dercndant'~; suhmissions III its mol1nn in chic!" The plainti 1'1' contends that he did 110tbreach the AgXl'ellle11t lIlusllluch as the 1cchnologles behillu the cn:allon of Pel"macol and surgllllcnd are different. In additinn. TLI was nl)t engaged in llI"about to become l'ngagcu l1l researching. dcve!upll1g, pr()dllcing. marketing or ,",elling the samc product as thl' defendant. and the t'vvo products UllSSLll' [* 7] Hitnllti v Tyen IkalLhcan.' Gruup. LP lnde:\ No. IO--HJX.1X Page 7 Iww di n~rl..'Jll USI..'S and an; madl..' of di nt:r~nt substanc..::s. TIl plainti ITclaims that he was nol working in Sullolk County /I'om Oclober. 2008 until he tt..'rminatcd his employment in June. 2009. i.lIld h..::did not sell Pcrm<lcol fix the ddcndant in Surfi.)lk County in any I..'vcnt. lie argues ,hat hL' bt..'gan selling Pl'rmacol for the ddcndant in ::W08 in Nassau County and the horoughs. The plainti ITalso daillls that the defendant' s let1l.:rwas written with the intcnt to danKH.!,ChIS C<ll"1. ¢'t..'l". In addition. the plailltiffcolltends that he is elllilled to payment of his base pay for the pt..Tind of lime that he was unemployed and that his demand triggered the dekndant's dUlY to pay. rvloreovcr. the plaintiff contends that he provided sufficient evidence of his aggressive cJ'Corts to obtain \.:mplo)'mellt alkr losing hiS job at TEl. J\ party ll1(lVlIlg lor sUlllmary judgmellt must make a prima lucie showing of entitlement to judgment as a matter of law. oflcring surticil..'nt evidence to demonstrate the absence of any material issues of fact (JViuc!grtul v New York Vlliv, Met!. Or .. 64 NY1d 85 I . 487 NYS1d 316 [1985]: Zuckenmlll v New York. 49 NY1d 557, 427 NYS1d 595 l1980l). Of course, summary j udglllelH is a drastic remcdy and should not be granted where there is any doubt as to the existenc..:: or a triable issue (Stewart Title Ins. Co. v Equitable Laut! Serv . ¢ ¢. ¢ 107 AD1d 880. 616 NYSJd 650 !2d l1ept J994]). but onc~ a prima lilcie showing has heCllll1adc. the burden shilts to thl' party opposing the molion to produce evidentiary proof in admissible form sulTicient to L'sLablish materia! issues of Etct whIch require a tnal of the action (Alvarez JI Prospect Hosp .. 6X NY2d ~J(J. 508 NYSld 92:i 11986"]). 13dt)I"I.: etennil11ng \vhcther the parties have met their burdens or ch:mollstrating their d prima tih.:ic enLitlement to judgment as a matter oj" law. the CourL must first determl11c whether the i\gn ..:...:menL was reasonable. The legitimate interests of an employer that may be protected by a llon-compdillon agrl'emenL arc limited to "thl' protection against misappropriation oCthe employer's trade sccn..:ts or of conl~(kntial customer Iists, or protection from competition by a 1"01'1111.:1' cmpltlyei.: whosi.: services are unique or t.:xtnlOrdinary" (see BDO Seidman JI Hirshberg, 91 N Y2d 3X2. 389. 690 N YS2d S54 1199<)-)). IlowcveL a 11011-C0Il1PCh:': clal1~": in an emploYI11i.:l1t C()l1tr~lCt s noL IllOkcd upon with ravor by the Courts and Will only be cnfon.:cd to the extent i reasoll<lblc and IHxcssary to protccl valid business intcri.:sts (see BDO Seidl1um I' Hirshberg. supra: Post I' Merrill Ly"ch, Pierce, Fermer & .(,jmith.II1c., 4l:: NY2d 84. 421 NYS2d 847 [197(1). J\ restrictiw covenant limitcd for a period ofLWO years has been round to be reasonable bullhal pel'i(ld ortin1\..' docs not. prima facie. n:quiri.: a lil1cilng that th..::COVl'nant is i.:nforceabJc (sec Columbia Ribb(}fl & Carbon Al/t:. Co. I,A-l-A Corp .. 42 NY2d 496. ]98 NYS1d 1004 ]19771: Glizzo/a-Kraenzlin 11 JJlestchester Merl. Group. P.C, 10 AD3d 700. 71Q NYSld 115]Jd Ikpl .100-1-)).lnslt..'ad. the ("nun IS n:quircd to look at all ortlle liH':(softl1e cas,", to determine if the covenant not to compi.:tl..' may be valid (S(;'t' If/I £III,tl., Inc. II McG()I'em. J69 !\DJd ,+97, 707 NYSJd l0712d Ikpt ~OOOI). !\ lilllliliar and eminently sensible proposition of law is that whell parties set down Ihi.:ir agre\.'llll..'llt in a <.:1car.complet\.' document. thl..'ll" writing should as a rule be enforced according to Its tlTlllS (w. W. W....hsocs. 11 Gillllcol1tied 77 NY2d 157, 565 NY~2d -!--I-O [1990]). Lvidcllce [* 8] Hitnl1li v I'ycn Ilcalthcare Inde:; Nll. 10-4(JRJX (jroup.I,P jJ;tg.L' g outsidc the !(llir corni.:rs of (hi.:document as to vvhat was really inicnded hut unsta1cd or lllisstatL:d IS gCllerall)' inadmissible to udd to or vary the \Vriling or to create an dlnhiguity in a dOCUllli.:llt \vhich is otherwise clear and unambiguous (id.). Whl'ther or not a "vriting~ ambl!2.110US a is IS ~ question of Imv to Ix resolvcd hy the couns (id.). Ambiguity is present irthe language was wnLtell su imperfectly that it is susceptible to more than one n:asonabk interpretation (Brad /I. lJ Ci~IJ oIiVew York, 17 NY3d 18(L 185 - 186. 9:2g NYS2d 221120 I 11; Critelli JI Comll1oJllvealtll Lalld nl. IllS. Co.. 98 AD~d 556, 949 NYS2d 487 12d Depl 2012 D, In seeKing summary judgmcnt. cach party hears the hurden of L:stablishing that its construction of the elTlp]oyment agreement is the only construction \vhich can fairly be placed thereon. ~. The Court finds that the Agreemcnt is n:asollably limIted In time, howcvcr the language regardmg the scop:.:, sp:.:eillcally ··the geographic ar:.:a and similar geographic territorlcs.'· is SUSCL:ptiblcto more than one reasonable interpretation. In addition. the Court finds that the terms provided in Paragraph 5 relating 10 what triggers th<.:payment of the plaintiff's base pay arc also susceptible to more than one reasonable interpretation. In addItion. the language regnrding Iww tlK' payment o]"tht: plall1titl"s base pay is triggered in Paragraph 7 is susceptible to more than one reil.,-:ollable interprt:tatioll. rhe defendant argues th()t on June 1.2010, it released the plaintiff from the tloncmnpetition portion orthe Agreement and was not required to pay the plaintiff his base pay at all. In addition ..the defendant argues, in any event, that the plaintiCfdid not accept any reasnllabk olT:.:rof :.:mploymcnt. The plaintiff argues that his demand tnggered the r:.:qutremcnt that the defendant pay his base pay during the time he was unemployed. The offers that he declined were not consistent with his education and training. Where an agreement cont:;tlns an ambiguity, th:.: court may look at e:\trinsic evidence to determine the intent ol'the parties (Tierney I' Drago, 38 AD3c17SS. 833 NYS'2d 127[1d Dep! 200T])_ Such an ambiguity ereaks;m issue of fact regarding whether either party brcachcd the Agree-ment. wh1eh precludes granting summary judgment to the defendant und partial summary Judgment to th:.: plnintifT 011 the Ilrst cause of action as a mailer orJuw. l"hl: Court Iinds. ho\vcvcr. that the defendant has cicmonstrakd its prima laci...-: nlit1cmel11 c tll.ludgmenl as a matter of law to dismiss the second. lhml. and f()urth caus:.:s of action. With rl'gard to the second cause of action alleging intentional misrepresentation. or ti·aud. to state a legally cogni;(ahll' claim or J1'audulent misn:prcsent:.ltion. "the complaint must allege that the deJCndantll1ade a material misrepresentation of bet, that the misrepresentation was made intL:nttOnally In order to defraud or mislead the plaintiff: that the plainlifTreasonahly relied on the misn:pn:sentation: and that the pluintilTsuJlerl':d damage as a result of its reliance on the de1l:ndanl's nllsrepresentaliolls" (I', 1: Balik CellI. Asia v ABiV AMRO Balik N. 301 /\D:2<.\ ~73. ;7CJ.754 NYS2d 245 [1 st Dept 20031: see also Re/:!jef v Roosevell ilm Group luc .. 2g i\[)3d 34), 346. 813 N YS2d 419 1-1 Ikpt 200(1). It IS well scttlcd thai ":1 cause of actillil for st fraud does not arise where the- only fraud alleged merely relates to a party's alleged inkn( to hreach a conlraClLIal uhligation" (767 Third Ave. LLC II Greble & finger, LLP, g ADJd 75, 76. 778 N '{S2d 157 [I st Dept 20(41). lll'rc, the delcndunt lTlack misrepresentations to TEl, and not to till' plaintifrhllllsl'lf. Contrary to the plaintiffs cpn1cntions in opposition. Ihere arc no specillc v.. [* 9] I~it()nll v Tycu Ill'ahhc<lrL" (jroup. lndc:\ Nll. Lil lO-401:UX ]lag;: 9 allcgaLions ()r fl·aud. as othCPV1SCn:411lrcu by Cl)LR 3013. and thcrc is no cJ~im that ther..::\vas a n:pro:sen!atiollmudc as an inducement to 1..'n!.l..'ring into i.lconLract (Ventflr Group, LLC II Fillner~v. 68 AD3d 638. 892 NYS2d 69 ([I SI ])I..'P12009]). Thcrdixl..'. thc second cause of action is dismissed. Turning to the third cause of aClion. the defendant demonstrated its prima IaCIi: emitkml.:nt 10 judgment as a matter ofluw. No:gJigcnt misrepresentation is not available to the plaintilT hecause it re4uin:s. at the omset. that the parties haw a liduciary relationship (FAR Indus. I' BNY Fill. Corp.. 152 AD2d 367. 675 NYS2d 77 11st Dept 1998 I). Although the plaintifr. in opposition. contends that therc is a special re1o.tionship netween himsdfand the ddendant. his relationship with the defendant. as belween a fonno:r emplo)'e(' and employer. dol.'s not rise to the level of a j'iduciary relationship as a matter oflaw (ld.). It also requires that a misrepresentation was made and that the plaintiff detrimentally relied upon it (Ravenl1ll v Christie's IlIc.. 189 AD2d 15. 734 NYS2d 21 (1 st Dept 200 I). which the plaintitr has htlled to demonstrate. Therefore. the third cause of action is dismiss~d. Thl.' dctl-lldant also demonstrat~d Its prima l~lcle emilkment to judgment as a matt~r of la\\' dismissing thl.' rourth cause or action. To establish a dl.,.'lCndant·s liability for damages lor l{)r!iuus intL"rcrel1ce \vi tll prospecti ve eontraelllal relations. tilt: p lai nti tT 111st show thJ.t the l u defendanL engagt:d in wrongful conduct which intcrfcrl':d with a prospective contractual n:laLionship bet\.vcen the plaintiffand a third party. /\s a gCl1I.:ralwk, such wrongJul conduct must amounL to a crime or an independent tort. and may consist of physical violence. fraud or misrcpreso:ntation. civil suits and crimll1al prosecutions" (Smith \I Meridiall Tech., IlIc.) 86 i\.D.3d 557, 560. 927 NYS2d 141 [2d Oept2011.l, quoting Gllard-Life Corp. vs. Parlier IlardlVare NIl!;. Corp .. 50 NY2d 183. 191,428 NYS2d 628 1 191W]). Such wrongful conduct muy includl: "some Lkgrecs oCcconomic pressure; however, persuasion alone is not sufficient"" (iLl. ,II II) I: see Lyons JI Menolldalios & Mellotillalios, P.c.. 63 AD3d 801. 802, 880 NYS2d 509 Ild ])cpt 20(91). Such conduct. which involves persuasion ratlu:r than undue econumic preSSUrL\ does not elllplllY wrongful means (see Carpel Corp. II NoolllllI. :; NY3d I X2. 189-1 t) I. 785 NYS2d 05') 12(041). !n support. thl.,.· cli::ndant contends that inasmtlch ,1S it c:\ecutcd the Agreement with the d pl,lintJ!1 tIlt,.'do:tCndant \vas.lustificd In sending the lener to TI-:l to protect its economic interest 1J'l11sclistomer base (Barl'ell II Toroyal1 . .19 J\D3d 36(). 833 NYS2d 49711st Dept 20071). In opposition. tho: plaintirr faikd to raisl: a triabk issuL' of IUCl as to whdher the delcndant acted with the pllrpost' uCharming him or engaged in any wrongJul conduct (.'1('(' Baron A.u'oc., P.c. I' R.S'KCO. 1(1 AJ)Jd .162. .162-.363. 790 NYS2d 407 12d Dept 20051: Waste Sal's. }' Jlll1111im Ash & Rubhi.\·h Removal Co.. 262 AD2d 401. -W2. 691 NYS2d 150 l2d Dcpt 19991J. Therdon:. the !(Hlrth caUSL" action is dismissed. or 'I'he Jel'CmJant dcmonstrated its prima facie entitlement to summary judgment on the fifth causl,."()!'actioll alleging a violation of NY Labor Law § ]98 (1-a). l.ahor l.aw § 19X (J-a) [* 10] BiLOmiv Tyco I kalthcan.' (jwup, LI' Indc:\ Nt). IO-408:;g Puge I () provides in part that "I i·ln any action instituted upon a wage daim by an employel.' ... in which the employce prl'vilils. the coun shall allow such cmployee' reasonable attorney's Ices"· II is well senled that the plain language. lcgislatiw history and purpose of § 198 (I-a) all indicate that IhL' intcnl oCthe statu Ie is that the attorney's fecs remedy provided therein is limited 10 hourly wagc claims hascd upon violations of onc or 111mI..' ofthc substantive provisions of I,abor 1.i.lW article 6 (Cottlieb I' Keune/It D. L({ub & Co.. 82 NY2d 457. 46:;, GOS NYS2d 213 119931l [-kn:. the ('<Hilt !lutcs that thc pbinti1Tis a salaried professional cmployce. and.thcreforc. has no ctlgnizable claim under thc statute (see NY I,ahor I,aw § 19(171). In any case. thc plaintifrbas I~lilcdto allegc a violation of I,ahor Law article 6 (Ill.. Capobi({llco v Incorporated Village of Maswlpequ({ Park. 278.1\.02d 268.717 NYS2d 328. [~d Dcpt :WOO]. Scheer v KallJl. 221 t\D2d 515.634 NYS2d 1-J.8lld DL'pt 1995J). In opposition. thc plaintitT l~liled to raise a triable issuc of I~lctas to thl' uppl ie~lbility of l.~lbor Law article (l (Fraiberg \I 4J(itls Entertainment, 111e..75 AD:Jd 5gU. 9U6 NYS2d 6412d Dept 201 0]). Therefore. the lilth causc of action is dismissed. Fin~lIly, punitive damages arc gCl1er:.llly 110trccoverable in an ordinary brcach of contract case. as their purpos...:is not 10remedy private wrongs but to vindicate public rights (see Reads Co. iLC v Katz. 72 t\D3d 1054.900 NYS2d U I l2d Dept 201 OJ: Tartaro v AII. ¢ ¢llte Indem. t Co.. 56 AD:;J 758. 861'1 NYS2d 281 [2d Dept 2008]). "Punitive damages arc only recoverable where thc breach ofcontruct also involves a li'uud cvincing a high degree of'moral turpitude. and delllollstruting such wanton dishonesty as to imply a criminal indifference to civil ob1Jgations. and where thl' conduct \Vas ainwd at the public generally" (Reads Co., LiC v Katz. slipra at 1056-1057 quoting Tllrtaro \! Allstate Indem. Co.. supra at 758; see New York VIIi". v COlltineutallus. Co.. 87 NY2d 308. 639 NYSld 283 [19951: ROCllnol'ft "Equifftble Life Assur. Soc)'. of us. 8:; NY2J 603. 612 NYS2d 339 [1994J). Hen.::. inasmuch as the Court dctefl11lncd (hal no Independent fraud occurred outsidc the alleged breach of contract. the application j()r punitive damages is dismissed. I\ccordingly. the deJelldant's Illotion for summary judgm-:ntls grankd 1.0tllL'extenl that lhl: second. third. fourth. and tilth causes of action are dismissed. as is the applicatIOn for punitive damages. The plainliWs cross motion I'or partial summary judgment is denied. ) )0 ! , I>l.ltcd: THO "' .. F. Wille ,AN, .I.S.C.

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