In this action seeking to recover compensation allegedly owed to plaintiff by her former employer, defendants move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss: (1) the complaint's first and fifth causes of action insofar as they seek to recover sales commissions for the period following the termination of plaintiff's employment, bonus payments and deferred compensation payments; (2) the second, third, fourth, sixth, seventh, eighth and ninth causes of action in their entirety; and (3) the complaint in its entirety as against defendant Update Legal Holdings, Inc.

Plaintiff Leslie Firtell was employed by defendant Update, Inc., a/k/a Update Legal, and/or defendant Alternastaff Services, Inc. (either entity individually or both entities [*2]collectively, hereinafter, Update ^[FN1]) from July 2000 until her employment was terminated on October 16, 2006. Update engages in the business of placing attorneys, paralegals and other personnel in temporary, temporary-to-permanent and permanent positions with law firms and corporate legal departments. Plaintiff's job responsibilities allegedly involved procuring and developing clients for Update, and making "sales" to those clients (Complaint, ¶ 12).^[FN2]

Certain terms of plaintiff's employment, including her compensation, were set forth in various writings including: (1) an offer of employment letter, dated July 5, 2000, and an attached compensation offering memorandum (First Compensation Memorandum); (2) an employment agreement, dated December 20, 2000 (Employment Agreement), which provided that Update would compensate plaintiff in accordance with the terms of an attached memorandum (Second Compensation Memorandum); (3) a memorandum which set forth the terms of plaintiff's compensation effective March 1, 2001 (Third Compensation Memorandum); (4) a memorandum which set forth certain terms of plaintiff's compensation effective June 1, 2003 (Fourth Compensation Memorandum); and (5) a letter sent by Update to plaintiff, dated May 19, 2005 (the DCP Letter), which stated that, subject to certain conditions, Update would make deferred compensation plan (DCP) payments to plaintiff totaling $1.3 million, in five equal installments over five years.

Plaintiff asserts that defendants refuse to pay her compensation that she is justly owed, including sales commissions, a quarterly "profit and loss" bonus (Quarterly Bonus) for the third quarter of 2006, and three of the DCP payments totaling $780,000. The complaint asserts nine causes of action which allege claims for: (1) breach of contract; (2) quantum meruit; (3) unjust enrichment; (4) breach of the implied covenant of good faith and fair dealing; (5) violation of Labor Law § 190 et seq.; (6) a constructive trust; (7) an accounting; (8) a declaratory judgment; and (9) civil conspiracy.

The first and fifth causes of action allege that defendants' failure to pay the compensation that plaintiff is purportedly owed constitutes, respectively, a breach of contract and a violation of Labor Law § 190 et seq. However, insofar as those claims seek to recover sales commissions for the period following the termination of her employment, a Quarterly Bonus for the third quarter of 2006, and/or the last three DCP payments, the claims are precluded by the written agreements between the parties, which governed the terms of plaintiff's compensation.

Plaintiff would have an enforceable right to receive commissions for the period following the termination of her employment, if at all, only pursuant to a provision contained in the Fourth Compensation Memorandum which provided that, effective June 1, 2003, plaintiff would "earn commissions for temporary sales generated solely by EMPLOYEE based on the attached schedule" (Firtell Affid., Ex. 3). The Third Compensation Memorandum had provided that "[a]ll previous agreements [and] commission schedules" would be "discontinued as of February 28, [*3]2001," and that, effective March 1, 2001, plaintiff would receive "[c]ommissions for Temporary Sales generated solely by EMPLOYEE based on the attached schedule" (Firtell Affid., Ex. 2). The commissions provision in the Fourth Compensation Memorandum is substantially the same as, and presumably superceded, the commissions provision in the Third Compensation Memorandum. Plaintiff apparently concedes that she is entitled to receive commissions for the period following the termination of her employment only insofar she has a right to receive those commissions pursuant to the commissions provision contained in Fourth Compensation Memorandum (see Pl. Mem. of Law, at 7, 13-14).

As a general rule, "[a]n at-will sales representative is entitled to post-discharge commissions only if the parties' agreement expressly provided for such compensation" (Swits v New York Sys. Exch., 281 AD2d 833, 835 [3d Dept 2001] [citation and internal quotation marks omitted]; see also McGimpsey v J. Robert Folchetti & Assoc., LLC, 19 AD3d 658, 659 [2d Dept 2005]; Production Prods. Co. v Vision Corp., 270 AD2d 922, 923 [4th Dept 2000]; Mackie v La Salle Indus., 92 AD2d 821, 822 [1st Dept 1983]). Courts have found an at-will employee's claims for post-termination commissions to be viable, in certain instances, where the employee and his or her employer entered into an agreement providing for the employee to receive commissions, the agreement was silent or ambiguous as to whether the employee could obtain post-termination commissions, the agreement was drafted by the employer, and the doctrine of contra proferentem dictated that the silence or ambiguity should be construed against the drafter (see e.g. Yudell v Ann Israel & Assoc., 248 AD2d 189, 189-190 [1st Dept 1998]^[FN3]; see also Kadish v Gootkin, 10 Misc 3d 132 [A], 2005 WL 3418133, *1 [App Term, 1st Dept 2005]). However, in order for an employee to obtain a post-termination commission under such circumstances, the employee's claim, and the former employer's corresponding obligation, must be of a definite and limited character rather than indefinite and unlimited (see Yudell v Ann Israel & Assoc., 248 AD2d at 190).

Here, even assuming, arguendo, that the commissions provision contained in the Fourth Compensation Memorandum is silent or ambiguous as to whether plaintiff can obtain post-termination commissions, and that the provision should be construed against Update, plaintiff's claim for post-termination commissions nevertheless fails, because the character of her claim is impermissibly indefinite and unlimited. The complaint identifies two accounts in connection with which plaintiff seeks to obtain post-termination commissions, Citigroup and Willkie Farr & Gallagher LLP (Willkie Farr). The complaint — after defining "client-employers" as clients which plaintiff "procure[d] and develop[ed] on behalf of Defendants as clients of Defendants," and which were "in need of ... employees" — alleges: that "Citigroup was one of Plaintiff's client-employers during her employment with Defendants"; that, "[a]pproximately two (2) weeks before Plaintiff was terminated, Plaintiff arranged for Defendants to enter into an agreement with Citigroup for certain services"; that, "[u]pon information and belief, Citigroup has since [*4]generated substantial business for Defendants"; that "Defendants have not paid or otherwise tendered to Plaintiff any Commissions ... related to any of this business"; that Willkie Farr "was another client-employer[] procured or otherwise developed by Plaintiff on behalf of Defendants during her employment with Defendants"; that, "[a]pproximately one week before Plaintiff was terminated ... Willkie Farr initiated a substantial enormous project with Defendants that, upon information and belief, Defendants subsequently staffed"; and that "Defendants have not paid Plaintiff any Commissions ... related to this project" (Complaint, ¶¶ 12, 19, 20). Plaintiff asserts that she is entitled to commissions with respect to the Citigroup and Willkie Farr accounts for the period following the termination of her employment because, while she was employed by Update, she obtained those entities as clients for Update (see Pl. Mem. of Law, at 5; Firtell Affid., ¶ 3). Plaintiff allegedly "believes that the Citigroup and Willkie Farr ... accounts will generate millions of dollars in fees for Update with corresponding commissions earned by [her] in excess of $2 million" (Pl. Mem. of Law, at 7).

Plaintiff's claims to post-termination commissions in connection with the Citigroup and Willkie Farr accounts are "indefinite and unlimited" because they seek "commissions from all future transactions between [her] former employer and certain customers, simply because plaintiff was the one who initially secured these customers" (Yudell v Ann Israel & Assoc., 248 AD2d at 190). Inasmuch as plaintiff's claims for post-termination commissions impermissibly "claim the right to prospective commissions for the indefinite future simply because she allegedly originated [defendants'] relationship with those clients" (see id. at 190-191), those claims are dismissed.

Plaintiff's first and fifth causes of action assert that she is owed a Quarterly Bonus for the third quarter of 2006 because: (1) defendants agreed to pay her a Quarterly Bonus pursuant to the written terms of the Second Compensation Memorandum, which was attached to the Employment Agreement, and the First Compensation Memorandum; and (2) in or about the end of 2005, defendants orally agreed to continue to pay plaintiff the Quarterly Bonus which was provided for in the Second Compensation Memorandum (see Complaint, ¶¶ 17, 22; Pl. Mem. of Law, at 7, 17-18). However, plaintiff fails to allege an enforceable claim to a Quarterly Bonus for the third quarter of 2006.

"An employee's entitlement to a bonus is governed by the terms of the employer's bonus plan" (Hall v United Parcel Serv. of Am., 76 NY2d 27, 36 [1990]; see also Zolotar v New York Life Ins. Co., 172 AD2d 27, 32 [1st Dept 1991]). As plaintiff asserts, the Second Compensation Memorandum, which was attached to the Employment Agreement, and the First Compensation Memorandum each provided that Update would pay plaintiff a Quarterly Bonus. However, the Third Compensation Memorandum expressly provided that the "[p]revious" Quarterly Bonus was "discontinued as of December 31, 2000" (Firtell Affid., Ex. 2).^[FN4] The Fourth Compensation Memorandum did not reinstate the Quarterly P & L Bonus. [*5]

Plaintiff nevertheless argues that she has a right to receive a Quarterly Bonus for the third quarter of 2006 pursuant to the terms of the Second Compensation Memorandum. The complaint alleges that "Defendants entered into an agreement with Plaintiff, wherein Defendants specifically agreed to continue paying Plaintiff" the Quarterly Bonus which the Second Compensation Memorandum provided for (Complaint, ¶ 17). Plaintiff's memorandum of law asserts that:

Despite the terms of the [Third Compensation Memorandum], in or about the end of 2005, Defendants orally agreed to pay and in fact paid Plaintiff [Quarterly] Bonuses under the terms of the [Second Compensation Memorandum] during the first two quarters of 2006 in exchange for Plaintiff's continued performance. However, Defendants refused to pay Plaintiff the [Quarterly] Bonus that she earned for the third quarter of 2006 before her employment ended.

(Pl. Mem. of Law, at 18 [emphasis added].) According to plaintiff, the wording of the Quarterly Bonus provision contained in the Second Compensation Memorandum indicates that Update's obligation to pay plaintiff the Quarterly Bonus for the third quarter of 2006 was mandatory rather than discretionary (see id. at 17-18). Thus, plaintiff apparently maintains that Update's obligation with respect to the payment of a Quarterly Bonus for the third quarter of 2006 is defined or governed by the provision regarding such a bonus in the Second Compensation Memorandum, which was attached to, and given force and effect by, the Employment Agreement.

However, the Employment Agreement contained a provision (the No-Oral-Modification Provision) which stated that "[n]o modification, amendment, or waiver of any section of this Agreement shall be binding upon either party unless in writing and signed by both parties" (Employment Agreement, § 21). Plaintiff concedes that, "[c]onsistent with [the No-Oral-Modification Provision], through their course of conduct the parties confirmed the need for a writing signed by both parties" in order to effect any change or modification in the terms of plaintiff's compensation (Pl. Mem. of Law, at 11). The Third Compensation Memorandum (which expressly discontinued the Quarterly Bonus as of December 31, 2000) and the Fourth Compensation Memorandum (which was effective June 1, 2003 and which did not reinstate the Quarterly Bonus) were each signed by plaintiff and by Update, and were, therefore, not ineffective for failure to comply with the No-Oral-Modification Provision. Thus, plaintiff cannot assert an enforceable right to be paid a Quarterly Bonus for the third quarter of 2006, predicated upon Update's alleged oral agreement to pay or reinstate the Quarterly Bonus provided for in the Second Compensation Memorandum, which was attached to, and given force and effect by, the Employment Agreement; such an oral agreement would have constituted a modification or amendment of a section of the Employment Agreement which, pursuant to the No-Oral-Modification Provision, would not have been binding upon Update. Accordingly, plaintiff has failed to allege an enforceable contractual right to a Quarterly Bonus for the third quarter of 2006.

Plaintiff has also failed to allege an enforceable claim to any of the three DCP payments that she would purportedly have received after the date when her employment was terminated if she had continued to be employed by Update. The DCP Letter made plaintiff's right to receive DCP payments contingent upon her continued employment by Update. The DCP Letter provided, inter alia: that DCP payments would be made to plaintiff only "so long as you have [*6]been continuously employed by [Update] or one of its subsidiaries since you became a participant under the plan until the date of such payment"; and that the plan was "not intended to confer any right to continued employment upon participants, or limit in any way the right of [Update] to terminate a participant's employment at any time, which termination would extinguish such participant's rights to the bonuses described in this letter" (Firtell Affid., Ex. 5). Thus, the termination of plaintiff's employment ended her right to receive further DCP payments.

For the foregoing reasons, plaintiff's first cause of action for breach of contract is dismissed insofar as it seeks to recover sales commissions for the period following the termination of plaintiff's employment, a Quarterly Bonus for the third quarter of 2006, and/or DCP payments that she would have received after the date of her termination if she had continued to be employed by Update. The fifth cause of action alleges that defendants' nonpayment of compensation to plaintiff was a nonpayment of "wages" under, and a violation of, Labor Law § 190 et seq. However, "plaintiff cannot assert a statutory claim for wages under the Labor Law if [she] has no enforceable contractual right to those wages" (Tierney v Capricorn Invs., L.P., 189 AD2d 629, 632 [1st Dept 1993]). The fifth cause of action is, therefore, dismissed to the same extent as plaintiff's breach of contract claim.

Plaintiff's second and third causes of action seek to recover damages based upon the quasi-contractual theories of quantum meruit and unjust enrichment. However, each of those claims is based upon plaintiff's alleged entitlement to receive compensation or consideration from defendants for the job duties and responsibilities she performed on defendants' behalf, and it is undisputed that there are valid and enforceable written agreements which govern the amount of the compensation that Update was obligated to pay plaintiff for the performance of her job duties and responsibilities. Accordingly, the second and third causes of action are dismissed, because the existence of a valid and enforceable written agreement governing a particular subject matter precludes a plaintiff's recovery for quasi-contractual claims arising out of the same subject matter (see e.g. De La Cruz v Caddell Dry Dock & Repair Co., 22 AD3d 404, 405 [1st Dept 2005]; Zolotar v New York Life Ins. Co., 172 AD2d at 33).^[FN5]

Plaintiff's fourth cause of action, which alleges that defendants breached the implied covenant of good faith and fair dealing, is also dismissed. That cause of action is duplicative and redundant of plaintiff's first cause of action, which alleges breach of contract, because: (1) the conduct which allegedly violated the implied covenant — i.e., defendants' nonpayment of the commissions, the Quarterly Bonus and the DCP payments — is also the predicate for plaintiff's breach of contract claim (see In re Houbigant, Inc. v ACB Mercantile, 914 F Supp 964, 989 [SD NY 1995]); and (2) the same damages appear to be alleged in both causes of action (see Canstar v J.A. Jones Constr. Co., 212 AD2d 452, 453 [1st Dept 1995]). [*7]

Plaintiff asserts that her claim for breach of the implied covenant is viable because it alleges that defendants terminated her employment specifically in order to avoid paying her the compensation that she is owed, and because federal courts — including, primarily, the Second Circuit in a case entitled Wakefield v Northern Telecom (769 F2d 109 [2d Cir 1985]) — have recognized the potential viability of an at-will employee's claim that the employee's former employer breached the implied covenant by terminating the employee, where the termination was substantially motivated by the employer's desire to avoid paying the employee increased compensation which the employee would have been entitled to receive if the employee had not been terminated.

However, New York State courts have generally rejected the holding of the Second Circuit in Wakefield to the extent of holding that a claim which purports to allege that an employer breached the implied covenant by terminating an at-will employee — even specifically in order to avoid paying the employee additional compensation which would be owed if the employment had continued — fails to state a claim (see e.g. Berzin v W.P. Carey & Co., 293 AD2d 320, 321 [1st Dept 2002]; Naylor v CEAG Elec. Corp., 158 AD2d 760, 762-763 [3d Dept 1990]). The courts of this state have generally reasoned that such a claim "would be inconsistent with [an] employer's unfettered right to discharge an employee at will for any reason, or even for no reason at all" (Riccardi v Cunningham, 291 AD2d 547, 548 [2d Dept 2002]; see also Naylor v CEAG Elec. Corp., 158 AD2d at 762-763).

Plaintiff's sixth and seventh causes of action seek, respectively, the imposition of a constructive trust, in the amount of the compensation that plaintiff is allegedly owed by defendants, and an accounting. However, those two causes of action are dismissed, because the complaint fails to adequately allege the existence of a confidential or fiduciary relationship between plaintiff and any of the defendants, and such a relationship would be a prerequisite to her claims for a constructive trust and an accounting (see e.g. AMP Servs. Ltd. v Walanpatrias Found., 34 AD3d 231, 233 [1st Dept 2006]; Saunders v AOL Time Warner, 18 AD3d 216, 217 [1st Dept 2005]; Size v Size, 276 AD2d 329, 329-330 [1st Dept 2000]). Although the complaint alleges that "Plaintiff and Defendants were engaged in a fiduciary relationship" (Complaint, ¶ 58), that allegation is wholly conclusory and insufficient, because it is not supported by any allegation of fact contained in either the complaint or plaintiff's affidavit.

Plaintiff's eighth cause of action seeks a declaratory judgment that defendants owe her compensation for: (1) clients she introduced to defendants or otherwise procured or developed for defendants; (2) candidates she placed on behalf of defendants; and (3) all projects from which defendants will collect revenues or derive other consideration attributable to plaintiff's efforts. However, plaintiff's cause of action seeking a declaratory judgment is "unnecessary and inappropriate," and is dismissed, because plaintiff has an adequate alternative remedy in the form of a claim for money damages for breach of contract (Apple Records v Capitol Records, 137 AD2d 50, 54 [1st Dept 1988]; see also Singer Asset Fin. Co., LLC v Melvin, 33 AD3d 355, 358 [1st Dept 2006]; Artech Info. Sys., L.L.C. v Tee, 280 AD2d 117, 125 [1st Dept 2001]).

Plaintiff's ninth cause of action, which alleges that defendants engaged in a civil conspiracy to deprive her of monies justly owed to her, is also dismissed. Although New York does not recognize an independent cause of action for civil conspiracy, a plaintiff may plead the existence of a conspiracy "in order to connect the actions of ... individual defendants with an [*8]actionable underlying tort" (American Preferred Prescription v Health Mgt., 252 AD2d 414, 416 [1st Dept 1998]). However, "[a] plaintiff first must plead specific wrongful acts which constitute an independent tort" (Smukler v 12 Lofts Realty, 156 AD2d 161, 163 [1st Dept 1989]). Plaintiff asserts that her civil conspiracy claim should not be dismissed because she has pleaded an independent "underlying tort claim for breach of the implied covenant of good faith and fair dealing" (Pl. Mem. of Law, at 25). However, plaintiff's claim for breach of the implied covenant is being dismissed herewith and, in any event, is a breach of contract claim rather than a tort claim (see e.g. Geler v National Westminster Bank USA, 770 F Supp 210, 215 [SD NY 1991]).

The branch of defendants' motion which seeks dismissal of the complaint as against defendant Update Legal Holdings, Inc. (Holdings) is not opposed by plaintiff, and is also granted. The complaint's first numbered paragraph alleges that Holdings provided plaintiff with the DCP. The complaint's remaining allegations refer to Holdings only insofar as the term "Defendants" is defined to include all three defendants, and the complaint's claims are alleged against "Defendants" collectively, without differentiation.^[FN6]

Plaintiff has failed to adequately allege facts which would support any of her claims as against Holdings. The terms of the DCP Letter contradict plaintiff's conclusory allegation that the DCP was provided to plaintiff by Holdings, since the letter was issued by Update, and states that the DCP is being established by Update (see Firtell Affid., Ex. 5). To the extent that the DCP Letter establishes any obligations that are owed to plaintiff in connection with the DCP, those obligations are owed by Update rather than by Holdings. Insofar as plaintiff's claims to allegedly unpaid compensation are not premised upon the DCP Letter, they are predicated upon the agreements which plaintiff entered into with Update, namely, the Employment Agreement and the First, Second, Third and Fourth Compensation Memoranda. Holdings was not a party to any of those agreements, and apparently did not even exist at the time when the agreements were entered into. The agreements were entered into between approximately July 5, 2000 and June 1, 2003. Defendants have submitted a copy of Holdings' certificate of incorporation, which indicates that Holdings was not formed until on or about March 21, 2005 (see Schott Affid., ¶ 3 and Ex. B). Therefore, plaintiff has failed to allege any facts which would indicate that she was in privity of contract with Holdings, or that Holdings in any other manner assumed any obligation to plaintiff relating to her compensation.

Accordingly, it is hereby

ORDERED that the motion to dismiss is granted to the extent that (a) the first and fifth causes of action — insofar as either cause of action seeks to recover any sales commissions for the period following the termination of plaintiff's employment, a quarterly "profit and loss" bonus for the third quarter of 2006, and/or any deferred compensation payment pursuant to the deferred compensation plan referred to in the letter dated May 19, 2005, which was sent by Joshua Schott to plaintiff — are dismissed, (b) the second, third, fourth, sixth, seventh, eighth and ninth causes of action are dismissed, and (c) the complaint is severed and dismissed as against defendant Update Legal Holdings, Inc., and the Clerk is directed to enter judgment in favor of this defendant, with costs and disbursements as taxed by the Clerk; and it is further [*9]

ORDERED that the remainder of the first and fifth causes of action shall continue; and it is further

ORDERED that the defendants other than Update Legal Holdings, Inc. are directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry.

Dated: ___________________

ENTER:

_________________________

J.S.C.