Ramirez v Moab Capital Partners, LLC

Ramirez v Moab Capital Partners, LLC 2022 NY Slip Op 05383 Decided on September 29, 2022 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 and Entered: September 29, 2022
Before: Acosta, P.J., Mazzarelli, Gesmer, González, Pitt, JJ.
Index No. 657318/20 Appeal No. 16307 Case No. 2022-02840

[*1]Omari Ramirez, Plaintiff-Respondent,

v

Moab Capital Partners, LLC, Defendant-Appellant.

Gardner Skelton PLLC, New York (Mark S. Pincus of counsel), for appellant.

Bailey Duquette P.C., New York (David I. Greenberger of counsel), for respondent.

Order, Supreme Court, New York County (Andrew Borrok, J.), entered March 25, 2022, which denied defendant's motion to dismiss the first cause of action for breach of contract, unanimously affirmed, with costs.

Defendant failed to establish, as a matter of law, that plaintiff waived his right to be compensated in accordance with the terms of a bonus provision in the parties' employment agreement. The evidence it submitted to show that plaintiff had accepted a bonus amount lower than that to which he was entitled did not demonstrate a clear

manifestation of intent to relinquish the contractual right (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006]; Kamco Supply Corp. v On the Right Track, LLC, 149 AD3d 275, 280-281 [2d Dept 2017], lv dismissed 30 NY3d 1036 [2017]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 29, 2022