Kleinberg, Kaplan, Wolff & Cohen, P.C. v North Castle Recruiting, LLC

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Kleinberg, Kaplan, Wolff & Cohen, P.C. v North Castle Recruiting, LLC 2011 NY Slip Op 32447(U) September 14, 2011 Sup Ct, NY County Docket Number: 0105462/2011 Judge: Eileen A. Rakower 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 911912011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY / ---. ( ; , PART + Irrctiro -~ .- .Index Number 105462/2011 - - - p p p p - INDEX KLEINBERG KAPLAN WOLFF NO. MOTION DATE VS. MOTION SEQ. NORTH CASTLE RECRUITING, LLC 'I SEQUENCE NUMBER : 001 SUMMARY JUDGMENT - - ~ . - - this motion to/for I - Affidavits - Exhibits - Exhibits Replying Affidavits ... - ~ Cross-Motion: s ( + PAPERS NUMBERED - Notice of Motion/ Order to Show Cause Answering Affidavits MOTION C A L . NO. ,1 I - c, NO. ~ ~ /' - - 7 *, ? 1 3 2 j Li NO , / Upon the foregoing papers, it is ordered that this motion NEW YORK COUNTY CLERKS OFFICE c h e c k one: *Y-I FINAL DISPOSITION c h e c k if appropriate: I--.] SUBMIT ORDER/ 1 NON-FINAL DlSPOSlTlON 7 1 I -1 DO NOT POST 1- 1 SETTLE JUDG. L 1 REFERENCE ORDER/ JUDG. [* 2] P lai n t i ff, Index No. 105462/11 Seq No.: 001 - against - NORTH CASTLE RECRUITING, LLC, Defendant. SEP 16;2011 ______----________________cr____________---------------~-----------------~-------- HON. EILEEN A. RAKOWER, J.S.C. X NEW YORK COUNTY CLERK S OFFICE Plaintifflaw tinn, Kleinberg, Kaplan, Wolff & Cohen, P.C. ( KKWC ), brings this action seeking the return of fees paid pursuant to a recruiting agreement with North Castle Recruiting, LLC ( North Castle ). KKWC and North Castle entered into a business relationship whereby North Castle found suitable candidates for employment with KKWC. Agreements execuled on September 9,2009 provided the terms governing payment for candidates cmployed. Plaintiff hired onc candidate, paid a $41,250.00 fec, but such candidate resigned within nine months. Plaintiff demanded return of the fces. Plaintiff now moves for summary judgment. Norlh Castle opposcs and cross-moves f or summary judgment di sinissing the action. KKWC, in support of its motion, submits: the pleadings; a copy of a fee agreerncnt; corresporidcnce betwceii KKWC and North Castle, regarding thc fee reimburseimcnt; a document titled Limited Liability Company Annual Report; and a printout from North Castle s websitc. KKWC argues that North Castle is coiitraclually obligated lo reimburse the fee as Ms. Peterson resigned before she had been einploycd for 18 months. North Castle, in opposition and support of its cross-motion, submits a copy of a second fcc agreement governing a distinct class of employees, also executed on the same date as the first agreement provided by E W C . 1 [* 3] The two agreements diverge priinxily in fee structure as d e h e d in paragraph 2, and applicability of the agreement in paragraph 3. T a11 other respects, the n agrecments are identical. Paragraph 2 of thc first agreement, in rclcvant part, provides that a finder s fee will be fully earned upon complction of 18 iiionths ofthe candidate s continuous fulltime employment; the fee is payable in three iiistallments; and the fee is rehndablc in full if the candidatc resigns or is terminated before completing the 18 month. Paragraph 2 of the second agreement, in relevant part, provides that a finder s re eewill be fully earned upon completion of 12 inonths of the candidate s continuous full-time cmployment; the fee is payable in full in one payment; and the fee is refundable in full if the candidate resigns or is terminated before completing six inonths of employment. Thereafter, the fee will be prorated pursuant to a stated structure, and only pairtially refundable ifthe candidatc is terminated or resigns during thc 7 through 12 months of employment. Paragraph 3 ol the first agreement states: [tlhis agreement does not apply to the placement of an r-tttorncy who has been out of law school for four (4) years or less. Paragraph 3 o l the second agreement states: [tlhjs agreement does not apply - . to the placement of Partner, Of Counsel or other attorney hires who are oiit of law school more than four (4) years. Here, KKWC asserts that the subject placement fdls under the first agreement. North Castle urges that the placement falls under the second agreement. Thc proponent of a motion for sumtnary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must producc sufficicnt evidence in admissible form to climinate any material issue of fact from the case. Whcre the proponent makes such a showing, the burden shifts to the pai-ty opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issuc. The affirmation o f counsel alone is not sufficient to satisfy this requirement. ( Zzickermm v. Ci@ oj New York, 49 N.Y.2d 557 [ 19801).In addition, bald, conclusory allegations, even ifbelievable, 2 [* 4] are hot enough. (Ehrlich v. Amtv-iccrn h!o/?in?gerGrtlmhoiise M,S, Corp., 26 N.Y .2d 255 [ 19701). ( Edison Stone Cory. v. 42nd Strept Development C orp.,145A.D.2d 249, 25 1-252 [lst Lkpt. 19891). It is rilldisputed in thc evidence presented that the candidate placed had been out of law school for more than four years when she was placed . Thus, by the terms ofthe contracts, the first agreement is thc operative agreement. It is also undisputed that KKWC paid a finder s fee to North Castle in the amount of$41,250.00. Finally, it is not disputed that the candidate resigned from her job before completing eighteen months of employmenl. Where the languagc is clear, unequivocal aiid unanibiguous, [a] contract is to be interpretcd by its own language . . .when parties set down their agreement in a clear, complete documcnt, their writing should as a rule be enforced according to its v. terms. (RAT Associ~rtcs New York Job Developmcnt Authority, 98 NY2d 29[2002]). The fee agreements here are unequivocal, and applicability hinges on how long a potential candidate has been out of law school. Since the candidate at issue graduated from law school in 2005, aiid her placement began in July 201 0, her placcincnt was governed by the first agreetnent. North Castlc claims that the first agreement is one-sided and unconscionable. . . .that is squarely outside the bounds ofcustoiii in this industry, and that the motion is premature because further discovery may reveal that Ihe agreement contains language that is far outside what is customary in the iiiduslry. It is settled that extrinsic evidence niay not be introduced to create an ambiguity in an otlierwisc clear documcnt. (Jet Acceptance Cory. v. Quest Mpxicuna S.A. de C. V., 201 1 WL 3847435[ 1st Dept. 20 I I]). lhe doctrine of unconscionability has 1i ttle applicability in the commcrcial setting because it is presumed that businessmen deal at arm s length with relative equality ofbargaining. (Gilman 17. Chase Manhuttan BnnkN.A., 135 AD2d 488[2nd Dcpt. 19871 citing to Eqziitable Lhr Cory. v,I. P.A. Land Developmcnf Corp., 38 N Y 2 d 5 16[19761). Wherefore it is hereby 3 [* 5] ORDERED that the motion for summary judgment oti the complaint herein is granted and thc Clerk is directcd to enter judgment in favor ofplaintifl'and against defendant North Castle Recruiting LLC, in the sum of $41,250.00, together with interest at the rate of 9% per annuiq ii-otn March I , 301 1 until the date of this decision, and thereafter at thc statutory rate, as calculated by the Clerk, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is fut'urthcr OEZDEKED that the cross motion is denied. l h i s constitutcs the decision and order ofthe court. All other relief requested is denied. DATED: September 14,201 1 FILE N A. EZAKOWER, J.S.C NEW YORK COUNTY CLERK'S OFFICE 4

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