Contract; breach; Covenant of good faith and fair dealing; breach; Discrimination; gender.
Defendant parent company hired plaintiff as managing director. Plaintiff was entitled to additional compensation for completing client transactions, to be paid within thirty days of defendant’s receiving payment from the client. If defendant terminated plaintiff’s employment, plaintiff was entitled to thirty days’ written notice of termination and payment of fees received by defendant within three months of his termination. During his employment, plaintiff and a partner became involved in a consensual intimate relationship which ended by mutual agreement. Soon after the other partners learned about the relationship, plaintiff’s work responsibilities were diminished, and, shortly after, his employment was terminated without notice. The partner’s work responsibilities and employment status were unaffected. Plaintiff brought an action against defendant and its subsidiary for breach of contract, claiming he was entitled to compensation for three transactions: breach of the covenant of good faith and fair dealing; gender discrimination; and violation of New York Labor Law §191. Defendants moved to dismiss the action based on documentary evidence and failure to state a cause of action. Defendants argued documentary evidence established plaintiff either received those payments or defendants did not receive payments for those transactions. The court held defendants did not establish a defense to the breach of contract claim because the documentary evidence was vague and unexplained by anyone with personal knowledge. The court dismissed the claim for breach of the covenant of good faith and fair dealing, stating it was largely duplicative of the allegations underlying the breach of contract claim. The court dismissed the gender discrimination claim, stating claims of sex discrimination based on termination following the end of an intimate relationship between an employer and an employee, other than sexual harassment, are not actionable as gender discrimination. The court noted an inference of gender discrimination was not raised because plaintiff and the partner were not similarly situated since they held positions of different rank. The court held New York Labor Law §191 did not apply to plaintiff because it does not apply to those serving in managerial capacity. The court dismissed the action in its entirety against the subsidiary because although common ownership and control existed between the companies, the subsidiary did not make any decisions regarding plaintiff’s employment.
Wilberding v. Center Capital Group, LLC, Index No. 650046/2012, 10/30/13 (Kapnick, J.).