GIANNI PROIOS, AS ASSIGNEE OF THE CLAIMS OF THE ESTATE OF ENZO ANGIOLINI DECEASED., V. NINE WEST GROUP INC.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: IAS PART 53

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GIANNI PROIOS, as Assignee of the Claims

of the Estate of ENZO ANGIOLINI, deceased,

Plaintiff,

-against-

Index No.110661/96

NINE WEST GROUP INC. and "John Doe" and

"James Roe", those names being fictitious,

the true name of these co-defendants

being unknown to the plaintiff, the

persons intended being the Trustees

and/or Administrators of certain

employee benefit plans of defendant

NINE WEST GROUP INC.,

Defendants.

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CHARLES EDWARD RAMOS, J.S.C.:

Defendants Nine West Group Inc, "John Doe," and "James Roe" (collectively, "Nine West") move for summary judgment dismissing the complaint in its entirety, pursuant to CPLR 3212. Plaintiff Gianni Proios ("Proios"), as assignee of the estate of Enzo Angiolini ("Angiolini"), cross-moves for partial summary judgment in the amount of $40,811.45 for pension benefits allegedly due.

The instant action arises out of the death of Angiolini and his business relationship with Nine West. Nine West is a designer, developer, and marketer of women's footwear. From July 1984 until his death in January 1993, Angiolini’s duties as an independent contractor included developing and designing shoe styles, overseeing the manufacturing process, and conducting trunk shows and promotional appearances.

Under the terms of a four year written agreement entered on July 31, 1984, Angiolini was to be paid on a royalty basis according to the number of shoes shipped by the company. Angiolini was guaranteed at least $450,000 per year for the first two years of the contract. See, Plaintiff’s Exh. D, Agreement, at 2. Following the expiration of this agreement, from July 1988 until his death on January 3, 1993, Angiolini’s income was based upon a series of oral agreements.

The agreements provided for a base compensation and an incentive bonus, if any, to be paid according to the profitability of the Enzo Angiolini Division of Nine West. Each year Angiolini was paid his annual compensation plus an incentive bonus for the fiscal year ending June 30, 1992. Nine West subsequently changed its accounting procedures from fiscal year to calendar year, and in 1993,after his death, Angiolini’s estate was paid his incentive bonus based on the profit targets established for the six months ending December 31, 1992.

In a settlement of claims Proios had against the estate, Proios was assigned the right to any claims which Angiolini may have had against Nine West at the time of his death. Apparently no claims had been asserted by representatives of the estate. Pursuant to the assignment, Proios initiated the instant action, alleging (1) breach of an oral agreement to sell 15,000 Nine West shares to Angiolini for $108,000; (2) Nine West failed to paybonus compensation for profits earned in the year 1993; and (3) Nine West failed to pay life insurance benefits in the sum of $250,000, pursuant to Nine West’s Executive Welfare Plan. See, Knight Aff., Exh. 1, Amended Complaint, at •• 21-51.

According to Proios, in June 1992 Nine West executive Jerome Fisher informed Angiolini (in Proios’ presence) that Nine West was going to sell Angiolini 15,000 shares of company stock for $7.20 a share prior to a public offering. Angiolini was allegedly told to deposit the sum of $108,000 into a Merrill Lynch account. Proios claims Angiolini deposited said amount, never received the promised shares of stock, and subsequently withdrew the funds in September 1992. Angiolini made no demand for said stock nor is it alleged that he asserted a right to purchase said stock pursuant to an oral agreement during his lifetime.

Proios further maintains Nine West received benefits for which Angiolini received no compensation. Proios asserts that a nine to ten month lead time is needed in the production of women’s shoes from conception to final product. Accordingly, because Angiolini worked on new shoe lines in 1992, one year in advance of the actual delivery and sale of the merchandise, Proios, as assignee, is entitled to bonus compensation for 1993.

The third claim by Proios is that Angiolini’s estate is entitled to $250,000 in executive life insurance benefits,pursuant to Nine West’s Executive Welfare Plan. Proios asserts that contrary to Nine West’s contention that Angiolini was an independent contractor and not an employee, Nine West paid to Angiolini’s sister $200,000 pursuant to the company’s group life insurance plan which covers all employees. Because Angiolini was an executive of Nine West, Proios argues, his estate is entitled to an additional $250,000.

In moving for summary judgment, Nine West asserts no one ever agreed, orally or in writing, to sell any portion of company shares to Angiolini prior to a public offering. Nine West maintains that Angiolini placed funds in the Merrill Lynch account to participate in an issuer directed stock program connected with Nine West’s June 1992 proposed initial public offering, which was ultimately abandoned due to market conditions.

Nine West further contends Angiolini’s estate is not entitled to any additional compensation for 1993, as he received his compensation and bonus for the period through December 31, 1992 and he did not provide any services in 1993.

As for the additional life insurance claim, Nine West claims Angiolini was not entitled to participate in or receive benefits under the Executive Medical Program or the Executive Life Program, as Angiolini was at no time an officer of Nine West. Although Nine West did provide that the medical expenses ofAngiolini’s final illness would be paid for from the Executive Medical Program, Nine West asserts this was a limited exception and a purely gratuitous act.

Summary Judgment

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v Prospect Hosp., 68 NY2d 320, 325 (1986). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law. Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 (1979). A failure to make such a prima facie showing requires a denial of the summary judgment motion, regardless of the sufficiency of the opposing papers. Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez, supra, 68 NY2d, at 324; Zuckerman, supra, 49 NY2d, at 562. Although the papers submitted in support of and in opposition to a summary judgment motion are examined in a light most favorable to the party opposing the motion (Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997]), mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. Zuckerman,supra, 49 NY2d, at 562. Upon the completion of the court's examination of all the documents submitted in connection with a summary judgment motion, the motion must be denied if there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

First Cause of Action: Stock Claim

It is clear from the record that Angiolini anticipated that he would purchase 15,000 shares of Nine West stock at $7.20 per share for a total price of $108,000 in the June 1992 public offering that was subsequently abandoned. Although, a court's role in evaluating a motion for summary judgment is issue finding rather than issue determination, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) and it is not the function of the court to consider and judge the credibility of the parties, Proios' unsupported contention of an oral promise to sell stock fails to satisfy the burden of proof, does not make sense in light of the stock offering and in any event, is unenforceable pursuant to UCC § 8-319(a).

A contract for the sale of securities is not enforceable by way of action or defense unless...there is some writing signed by the party against whom enforcement is sought...

See also, Gross v Vogel, 81 AD2d 576 (1981), the exchange of services for shares of stock constitutes a sale of securities within the meaning of UCC Article 8. Although the defense of the statute of frauds was not included in the answer, this Courtwould grant leave to the defendant to move to amend its answer.

Accordingly, summary judgment is granted on the first cause of action.

Second Cause of Action: Unjust Enrichment

Proios asserts that Angiolini provided substantial design, labor, and services to Nine West during 1992 for which Nine West benefitted in 1993. Proios alleges in conclusory fashion that had Angiolini survived through 1993, he would have been compensated for such work completed the previous year. Nine West disputes this assertion and contends that the business realities of the shoe industry support its claim that Angiolini’s estate is not entitled to any compensation for 1993. See, Defendants’ Reply Memo of Law at 29 ("Any compensation to have been received by Angiolini in 1993, in accordance with the parties’ established practice, would have been part of an overall compensation agreement for 1993 which, as in the past, may have included a salary together with the establishment of Division goals which could have led to the payment of additional compensation in the form of a bonus").

This is consistent with the admitted receipt of payment for all the years Angiolini worked for the defendant. In the event Proios were to prevail on this issue, Nine West would be compelled to pay an extra year's compensation, for example, eleven pay periods for ten years of work. There is no basis toclaim that the estate has a claim for unjust enrichment in light of the admitted payment of a bonus for each year of services. Proios is seeking to double dip.

The issue as to whether Angiolini could have substantially completed the shoe lines for 1993 prior to his death and whether the shoe lines were significantly altered following his death are irrelevant.

Thus summary judgment on this issue is also granted.

Third Cause of Action: Life Insurance

The third cause of action regarding life insurance centers on whether Angiolini’s estate is entitled to receive executive life insurance benefits. Determination of this issue depends on whether Angiolini was an officer of Nine West, which would entitle the estate to such benefits.

In support of this cause of action, Proios cites to various documents, including an article in Footwear News that referred to Angiolini as a vice president of Nine West (Plaintiff’s Exh. C) and a corporate document that allegedly lists Angiolini as an officer (Plaintiff’s Exh. P). The record reveals, however, that Proios has failed to come forward with any evidence that Angiolini was an officer of Nine West. To the contrary, the record establishes that he was not.

A number of Nine West executives stated in depositions that the Executive Welfare Plan was for the benefit of officers onlyand that Angiolini was at no time an officer of the company. See, Bedol Aff. at • 6 ("Enzo Angiolini was at no time an officer of Nine West and, therefore, was not entitled to participate in or receive benefits under either the Executive Medical Program or the Executive Life Program."); Fisher Dep. at 11 (Angiolini "was not a corporate officer"); id. at 81 (Angiolini was not considered Nine West management but "was a general contractor"); Pestka Dep. at 22 (Angiolini "was considered an independent contractor for the company"); id. at 95 (Angiolini was not an officer of Nine West). These assertions are bolstered by the affidavit of Ronald Weaver, an employee of the underwriter of Nine West’s Executive Life Insurance Plan, who stated, "Enzo Angiolini was at no time a participant in Nine West’s Plan from its inception to date." Weaver Aff. at • 3. Proios cites to no documentation to dispute these assertions.

As for the Footwear News article, Nine West asserts the article was not written or approved by the company in advance of its publication. See, Bedol Aff., at • 7. The fact that members of the shoe industry may have believed Angiolini was a vice president is wholly irrelevant to whether he actually was an officer entitled to additional life insurance pursuant to Nine West’s Executive Welfare Plan.

Proios cites to Nine West bonus reviews in arguing that Angiolini was considered an officer by Nine West. See,Plaintiff’s Exh. P. Complete copies of the reviews, however, indicate that Angiolini was not considered an officer, but a designer under division product development. See, Knight Brown Reply Aff., Exh. A (listing the four officers of the department, none of whom are Angiolini); id., Exh. B (listing Angiolini as being part of division product development). Therefore, because Proios’ claims regarding the life insurance matter are bald and conclusory, they are insufficient to defeat summary judgment on this claim. See, Adam v Cutner & Rathkopf, 238 AD2d 234 (1^st Dept 1997).

Cross Motion: Pension Benefits

Proios moves for summary judgment as to Angiolini’s entitlement to pension benefits. As this claim is not included in the amended complaint and may not be pleaded at this time the cross motion is denied.

Accordingly it is

ORDERED and ADJUDGED that the motion by defendants Nine West Group Inc., "John Doe," and "James Roe" for summary judgment dismissing the complaint is granted; and it is further

ORDERED that the cross motion by plaintiff for partial summary judgment is denied.

Dated: February 25, 1999