3371, 650314/13.

2017 NY Slip Op 01805

DAVID EAGLE, Plaintiff-Appellant, v. EMIGRANT SAVINGS BANK, Defendant-Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Attorney(s) appearing for the Case

Kaiser Saurborn & Mair, P.C., New York ( Daniel J. Kaiser of counsel), for appellant.

Proskauer Rose LLP, New York ( Evandro C. Gigante of counsel), for respondent.

Before: Friedman, J.P., Andrias, Gische, Webber, JJ.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 3, 2016, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the claims for breach of contract and unjust enrichment, unanimously affirmed, without costs.

Plaintiff seeks to enforce an employment offer letter providing that he was eligible for participation in defendant's carried interest compensation plan at a rate to be determined in defendant's sole discretion. However, the subject language in the offer letter lacks the requisite definiteness to be enforceable, since it provides neither the level of plaintiff's participation in the plan, nor a methodology or extrinsic standard for determining it (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91-92 [1991]; Benham v eCommission Solutions, LLC, 118 A.D.3d 605, 6060-607 [1st Dept 2014]; Magnum Real Estate Servs., Inc. v 133-134-135 Assoc., LLC, 103 A.D.3d 453 [1st Dept 2013]; compare Tonkery v Martina, 78 N.Y.2d 893 [1991]).

Based on the terms of both the language of the offer letter and of the carried interest compensation plan itself, it is entirely within defendant's discretion to determine if and at what level plaintiff would participate in the plan (see Hunter v Deutsche Bank AG, N.Y. Branch, 56 A.D.3d 274 [1st Dept 2008]), and it is undisputed that defendant never exercised this discretion. Furthermore, plaintiff's contention that defendant was under a good faith obligation to set his participation level in the plan is undermined by defendant's clear right to exercise its discretion in that regard (id.).

The unjust enrichment claim was properly dismissed, since it is duplicative of the breach of contract claim (Benham at 607).



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