Maini v Syscore Consulting Corp.

[*1] Maini v Syscore Consulting Corp. 2006 NY Slip Op 51844(U) [13 Misc 3d 1215(A)] Decided on September 27, 2006 Supreme Court, Nassau County Austin, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2006
Supreme Court, Nassau County

Anil Maini, Plaintiff,

against

Syscore Consulting Corp., Defendant.



5414/02



COUNSEL FOR PLAINTIFF

Martin & Molinari, Esq.

148 Long Beach Avenue

Freeport, New York 11520

COUNSEL FOR DEFENDANT

Baker & Greenspand, Esqs.

2009 Bellmore Avenue

Bellmore, New York 11710

Leonard B. Austin, J.

Plaintiff, Anil K. Maini ("Maini"), is a software engineer-consultant who is proficient in various computer programs including a software product known as PeopleSoft. As such, Maini is referred to as a PeopleSoft Data Base Administrator.

Due to his immigration status [FN1], Maini is, and can be, employed solely by his sponsor/employer, MegaNet Solutions LLC ("MegaNet"). However, in order to maximize his talents and profitability, MegaNet subcontracts Maini out to other programming companies and businesses which utilize PeopleSoft.

Defendant, Syscore Consulting Corp. ("Syscore"), is a company which acts as a clearinghouse for software engineers such as Maini. Likewise, a company known as Infotech Concepts, Inc. ("Infotech") also tries to place software engineers. Sometimes, Syscore turns to Infotech to locate a software engineer for one of its clients and vice versa.

In October 2000, Syscore learned from Infotech that the Visiting Nurse Service of New York, Inc. ("VNS") required the services of a software engineer-consultant who was proficient and experienced as a PeopleSoft Data Base Administrator. Syscore agreed to supply an engineer-consultant to Infotech which in turn supplied that consultant to VNS. Maini was that consultant.

At that time, Maini was under contract with MegaNet. Thus, MegaNet entered into an agreement to supply Maini to Syscore (Dx J)[FN2]. In turn, Syscore provided Maini to

Infotech which then provided Maini services to VNS (Px 6). Maini was with VNS from October 11, 2000 until February 8, 2002.

During his assignment with VNS, Maini prepared time sheets reflecting the hours he worked. Based upon the time sheets, Infotech billed VNS at an agreed hourly rate of $185. Syscore then billed Infotech for Maini's services at the rate of $143.50 per hour worked. Syscore then paid MegaNet $65 per hour for its employee's work. Thus, Syscore's profit on Maini was $78.50 per hour.

In large part, the issue presented in this case revolves around an agreement presented by Maini to Syscore's president, Kalpana (Tina) Shah ("Shah") dated November 28, 2000 with regard to his involvement in the VNS job. Over objection, this agreement, entitled "Service Product Agreement" ("November Agreement") was admitted into evidence as Px 2. Although Maini was MegaNet's employee, this agreement was presented directly by Maini with regard to his services. [*2]

In relevant part, the November 2000 Agreement provided that Syscore was to pay $133.50 per hour for Maini's services to MegaNet by paying $70 per hour to MegaNet and the balance, $63.50 per hour, to an entity partially owned by Maini, Prosario Systems, Inc. ("Prosario")[FN3]. The November Agreement contains the signatures

of Maini and Shah. Shah denies ever seeing this agreement or executing it.

She claims that entering into such an agreement would result in a $10 per hour profit for Maini's work which she would never have done.

Shah does, however, acknowledge entering into an agreement with Maini on December 1, 2000 ("December Agreement") (Dx A). This agreement is far more extensive covering such items as confidentiality and non-disclosure, Syscore's right to obtain injunctive relief in the event of breach of the agreement and non-competition. Significantly, no hourly rates or payments are set forth in the December Agreement.

The reason for this is clear. In ¶ 6, entitled "Release", the parties agreed, in part:

The Consultant [Maini] shall provide time sheets approved by his supervisor on a timely basis and his employer [MegaNet] will provide invoices for number of hours work performed by Consultant for payment. The Consultant will have no right or claim against Syscore for any work performed. Consultant's rights and remedies will be against his employer. Consultant releases Syscore against all rights, claims, actions or lawsuits and hereby specifically forfeits any such action or claim. (Emphasis added.)

The December Agreement also contains a merger clause (¶ 9) which states that the agreement "contains the entire Agreement of the parties relating to the subject matter hereof. * * * This Agreement supercedes all previous Agreements and Contracts written and verbal ever entered into between the parties." (Emphasis added.)

Defendant has vociferously argued that the November Agreement should never have been allowed into evidence since it was only a copy and is violative of the best

evidence rule (Prince, Richardson on Evidence [11th Ed.], § 10-101, et seq.[FN4]). On the other hand, Maini contends that there was but one original and that was kept by Shah after he delivered a signed copy to her. All he has, Maini claims, is a photocopy of the agreement which bears Shah's [*3]signature. Thus, Maini argues that the best evidence rule is inapplicable.

With the December Agreement, which both parties acknowledge having signed,

the issue of the best evidence rule is rendered moot. The December Agreement clearly and unequivocally supercedes "all previous Agreements and Contracts". Thus, notwithstanding its admissibility, the November Agreement is of no moment in the face of the superceding December Agreement which addresses the rights of the parties with regard to payment for Maini's services. Counsel fees, which were available in the event of a breach under the November Agreement, are not available under the December Agreement. The only real value of the November Agreement is to underscore the significant credibility issues presented.

Syscore's obligation to pay for Maini's services flowed from its agreement with MegaNet dated June 11, 1999 (Dx J). Although this agreement predates Maini's

placement with VNS, it addresses the relationship between Syscore and MegaNet with regard to his placement in a prior position requiring a PeopleSoft software engineer-consultant. The agreement provides for payment of $65 per hour even though the ultimate employer is not mentioned.

The evidence including invoices (Px 4) suggest that MegaNet was paid more than $65 per hour for Maini's services. No evidence, however, was submitted to demonstrate that the agreement between Syscore and MegaNet was ever abrogated or abandoned. Nor was there any credible evidence demonstrating that there was any agreement between MegaNet and Prosario with regard to Maini's placement. Indeed, even the November Agreement was not executed by Maini, in any representative capacity for Prosario.

Maini's relationship with MegaNet was governed by an Employment Contract dated June 1, 1999 (Px 13). In that contract, Maini received a gross annual salary of $80,000. In addition, he was permitted to "negotiate contracts on his behalf, in case he [came] across a viable software consulting project on behalf of the company [MegaNet], negotiate and fix rates in co-ordination with the undersigned [MegaNet Manager Dr. Megharaj Kranthy]."

The relationship between Infotech and Syscore was memorialized in an agreement dated October 10, 2000 (Px 6). That agreement with regard to Maini's services terminated on January 5, 2001. Since Maini continued with VNS, the

agreement was updated and extended on November 2, 2001 (Px 7) so as to provide for an open-ended terminus to Maini's work. Both agreements provided that Infotech was to pay Syscore $143.50 per hour for Maini's services. Article 6 of both agreements also provided that Infotech could not directly or indirectly hire Maini during the term of the

agreement. The second agreement barred hiring Maini for a year after his termination with Syscore.

During the course of the relationship, Maini submitted his weekly time sheets for payment to Infotech by fax. Those time sheets were also mailed to Syscore. A copy was also sent to VNS for its approval. Infotech invoiced VNS and Syscore invoiced Infotech. Infotech never paid Maini directly. Significantly, Infotech never heard of or dealt with MegaNet or Prosario. [*4]

While there is no disagreement that, during the course of the relationship between the parties, Syscore paid invoices issued by Presario, it is clear that they were not necessarily for Maini's services. That is, it appears that the Presario invoices related to a different programmer or a programmer not known to Syscore. This was apparently accomplished via invoices in the name of Anita Vijh (Dx M). While the rights of Presario to collect fees for its shareholder, Maini's services, seem tenuous, at best, that is not an issue which is relevant here except to the extent that discovery of such billing

discrepancies resulted in Syscore's termination of payments for Maini's hours to Presario and the claim herein [FN5].

In support of his claim for payments to both MegaNet and Prosario, Maini has submitted various e-mails. First, Maini urges that the November Agreement was the product of an e-mail negotiation which took place on November 20 and 22, 2000. In the first e-mail addressed to Shah (Px 1B), Maini discusses his hourly rate for the VNS job as being $133.50 with the billing being split between MegaNet and Prosario. In her proffered e-mail response (Px 1A)[FN6], Shah agreed to the rate of $70 per hour for MegaNet and the balance for Prosario.

Both e-mails, in discussing the payments allude to payments being "like before". The problem is that there was no "like before" with regard to Maini's work. That is, there were other Prosario workers who were placed by Syscore such as Ashish Chopra (Dx Q, S, T and V). However, the arrangement was with Prosario and no one else.

During the course of the trial, the veracity of the e-mails on which Maini relied (Px 1A and 1B) was called into question. After formal testimony was complete, the trial was adjourned to Chambers wherein the parties and counsel participated on the record. At

that time, Maini's e-mail directory was opened on the Court's computer to ascertain whether the e-mails he claims to have sent were actually there. On Maini's Hotmail e-mail directory (Ct. x I), an e-mail to Shah bearing the directory date of February 27 entitled "Prosario payments" was detected. That e-mail was opened. What was revealed was an e-mail dated May 25, 2001 (Ct. x II). This discrepancy throws doubt upon the veracity of the other e-mails as well as the November Agreement.[FN7]

Although the November Agreement is unenforceable because it was superceded, real [*5]questions exist as to its authenticity. That is, in the context of the other agreements, including the December Agreement, the agreement between Syscore and MegaNet in which there is no mention of Prosario and Infotech, the truth of Maini's claims and the evidence supporting it is in serious doubt.

Likewise, the invoices from Prosario are highly questionable. Many of the invoices reflect the name of the consultant for whom the invoices were generated such as Anita Vijh (Dx M) and Ashish Chopra (Dx V). Yet, the Prosario invoices, purportedly generated with regard to Maini (Px 5), do not reflect his name anywhere on the face of those invoices. Nor is there a contract between Prosario and Syscore. Only the superceded November Agreement provides for payment of Maini's hourly rate to both MegaNet and Prosario. However, there is no contractual relationship on which to base

a claim. Significantly, no one from Prosario was called by Maini to explain its billing or the basis of Maini's claim in its behalf.

Thus, the Court is left with the view that Maini's claim is not cut from whole cloth. Rather, it would appear that Maini's claim is based upon his desire to become a 40% owner of Prosario at the expense of Syscore and in derogation of the contractual relationship between Syscore and MegaNet, on the one hand, and Infotech, on the other.

CONCLUSIONS OF LAW

Maini's claim is premised on the November Agreement which was admitted into evidence over objection. The admission of the November Agreement into evidence is a non-issue in view of the explicit language of the December Agreement.

A clear and complete written agreement should be enforced in accordance with its terms. South Road Assocs., LLC v. International Business Machines Corp., 4 NY3d 272 (2005); Greenfield v. Philles Records, Inc., 98 NY2d 562 (2002); and W.W.W. Assoc. v. Giancontieri, 77 NY2d 157 (1990). The court should determine the intent of the parties from the language of the agreement. Greenfield v. Philles Records, Inc., supra.

Terms of a contract are to be interpreted in accordance with their plain meaning.

Computer Assoc. International, Inc. v. U.S. Balloon Mfg. Co., Inc., 10 AD3d 699 (2nd

Dept. 2004); and Tikotzky v. New York City Transit Auth., 286 AD2d 493 (2nd Dept. 2001).

The court is to give "...practical interpretation to the language employed and the parties reasonable expectations." Slamow v. Del Col, 174 AD2d 725, 726 (2nd Dept. 1991), aff'd., 79 NY2d 1016 (1992). See also, AFBT-II, LLC v. Country Village on Mooney Pond, Inc., 305 AD2d 340 (2nd Dept. 2003); and Del Vecchio v. Cohen, 299 AD2d 426 (2nd Dept. 2001).

The court may not add or delete provisions of an agreement under the guise of interpretation nor may the court interpret the language of an agreement in such a way as would be contrary to the intent of the parties. Petracca v. Petracca, 302 AD2d 576 [*6](2nd Dept. 2003); and Tikotzky v. New York City Transit Auth., supra.

The December Agreement provides, in pertinent part:

"The Consultant [Maini] will have no right of claim against Syscore for any

work performed. Consultant's all rights and remedies will be against his employer [MegaNet]. Consultant releases Syscore against all rights, claims, actions or lawsuits and specifically forfeits any such action or claim." [¶ 6]

***

"This Agreement contains the entire Agreement of the parties relating to

the subject matter hereof...

This Agreement supercedes all previous Agreements and Contracts written

or oral ever entered into between the parties." [¶ 9] (Emphasis added.)

The clear, unequivocal and unambiguous language of the December Agreement establishes that it was, and is, the sole agreement between the parties relating to Maini's work at VNS. The merger clause of ¶ 9 of the December Agreement establishes that the December Agreement supercedes and replaces the November

Agreement as the agreement between the parties relating to this work. Such a merger clause precludes Maini from relying upon the November Agreement as the basis of his claim against Syscore. Kindler v. Newsweek, Inc., 277 AD2d 159 (1st Dept. 2000). See also, Bero Contracting & Development Corp. v. Vierhile, 19 AD3d 1160 (4th Dept. 2005); and Waterfront NY Realty Corp. V. Weber, 281 AD2d 180 (1st Dept. 2001).

Absent a statute or public policy to the contrary, a party may contractually waive a right to commence an action. See, Tsadilas v. Providian National Bank, 13 AD3d 190 (1st Dept. 2004). The language of ¶ 6 of the December Agreement was sufficient to provide a release from a contractual obligation. See, Petrakis v. Rose, 12 Misc 3d 1194(A) (Sup.Ct. Nassau Co. 2006).

Using the standard rules of contract interpretation, this Court must find that the language of ¶ 6 specifically provides that Maini's sole remedy for breach of the agreement would be against MegaNet, his "employer."

In view of the unambiguous provisions of the December Agreement, Maini's complaint must be dismissed.

Even were the November Agreement to be somehow viable, dismissal of this action would still be appropriate since Maini is recited therein as "an employee of MegaNet Solution, LLC and is provided by Prosario Systems, Inc." (P x 2, ¶ 1). Thereafter, in ¶ 4 of the November Agreement, it is provided that it is MegaNet and Prosario which are to receive payment for Maini's services based upon Infotech invoices. Thus, under the terms of the various agreements, either MegaNet/Prosario or Infotech had the right to recover for the services rendered by Maini in connection with [*7]this matter. Maini was not a party to those agreements. At most, he executed the November and December Agreements under color of authority from MegaNet and Prosario.

Privity is an essential element of an action for breach of contract. La Barte v. Seneca Resources Corp., 285 AD2d 974 (4th Dept. 2001); and M. Paladino, Inc. v. J. Lucchese & Sons Contracting Corp., 247 AD2d 515 (2nd Dept. 1998). Since Maini was not in privity with Syscore in connection with the fee being charged for his services, he may not maintain an action to recover for those services.

In dismissing Plaintiff's action, his claim for counsel fees must, a fortiori, fail/

Settle judgment on ten (10) days notice.

Dated: Mineola, NY_____________________________

September 27, 2006Hon. LEONARD B. AUSTIN, J.S.C. Footnotes

Footnote 1: Maini's immigration status is H1B1 (Defendant's exhibit F).

Footnote 2: Trial exhibits are denoted as "Px ___" for Plaintiff's exhibits and "Dx ___" for Defendant's exhibits. Court exhibits are referred to as "Ct. x ___".

Footnote 3: By agreement dated April 2, 2000, Maini acquired the right to purchase 40% of Prosario for $200,000 ("Prosario Agreement"). This agreement grants Maini the authority to "sign contracts on behalf of Prosario Systems Inc. and advice [sic] Prosario Systems Inc. to submit invoices to different companies from time to time for his services at different client sites."

Footnote 4: Section 10-105 provides, "The best evidence rule applies only when a party seeks to prove the contents of a writing. It has no application, therefore, where a party seeks to prove a fact which has an existence independently of any writing, and this is true even though a writing exists evidencing that fact. * * * [I]f, as a matter of law, the writing is itself the fact or has been constituted the exclusive evidence of the fact, the best evidence rule applies."

Footnote 5: The open invoices which are the subject of this claim total $122,043, which represents MegaNet billing of $63,280 and Prosario billing of $58,763. The counterclaims allege fraud with regard to the billing totaling more than $99,000.

Footnote 6: Px 1A and 1B are e-mails on the same page.

Footnote 7:It is also significant that Maini resisted access to his e-mail even though he was assured that his password and unrelated mail were secure.