Motion CPLR 3211[a][1], [5] and alternatively, CPLR 3212, by the defendant The Marquee Group, Ltd, for an order dismissing the second amended complaint insofar as asserted against it.

Cross motion by the plaintiff Mel Blum for an order, inter alia,: (1) granting him summary judgment on his eighth cause of action; (2) directing defendant Marquee Group Ltd ["Marquee"], to permit the plaintiff to inspect its books and records; (3) granting judgment to the plaintiff and against Marquee, in the sum of $437, 751. 32; and (4) further directing Marquee to, inter alia, account to the plaintiff for "all of his personal property" it is currently holding.

In early 2002, the plaintiff Mel Blum, Brian Miecnikowski and Dominick Sartorio formed defendant Marquee Group, Ltd ["Marquee"] apparently to facilitate Marquee's acquisition of various affiliated chemical companies in which Blum was a shareholder (Order at1-3).

According to the plaintiff, the defendant law firm of Silverman, Perlstein & Acampora, LLP [the "Silverman" firm] was retained to assist in the creation of Marquee and allegedly represented "the shareholders of Marquee," including the plaintiff "in all respects" (Cmplt.,¶ 16).

By written agreements dated May 17, 2002 and September 18, 2002, the plaintiff agreed to sell to Marquee, his shares in several of the affiliated companies. In exchange, he was to receive, inter alia: (1) $3 million; (2) "a fifteen (15%) stock ownership in Marquee;" and (3) other financial considerations" (A Cmplt., ¶¶ 13-14).

Contemporaneously with the execution of the 2002 agreements, the plaintiff also entered into a five-year employment contract with Marquee, at an annual salary of $200,000 per year, after which he was to perform consulting services for a 10-year period at a rate of $75 000 per year (see, Pltff's Cross Mot., Exh., "B;" Cmplt., ¶¶ 20-21; Order at 1-3).

Shortly after the foregoing agreements were executed, the parties' relationship deteriorated. The plaintiff now claims that the Silverman firm, Sartorio and Miecnikowski (who died in November of 2002) made false and fraudulent statements in order to induce him to enter into the 2002 agreements (Cmplt., ¶¶ 22-23).

Moreover, the plaintiff also contends the defendants engaged in pattern of "extortionist tactics" and economic duress aimed at intimidating him into relinquishing his stock ownership in [*2]Marquee, as well as other benefits to which he was entitled under the 2002 agreements, i.e., the defendants allegedly threatened him with baseless legal proceedings; barred him from Marquee's business offices; terminated his employment; and otherwise denied him rights "enumerated in the shareholder's agreement"(Cmplt.,¶¶ 24-25; 27-33; Order at 5).

The plaintiff argues that in 2004, and as a result of the duress and intimidation, he finally "succumbed" to the defendants' pressure tactics and executed the "Amended Stock Purchase and Settlement Agreement" dated August 22, 2004" and a so-called "Side Agreement" (Cmplt., ¶¶ 33-34) both of which allegedly diluted the financial benefits he had originally received under the 2002 agreements (Cmplt., ¶¶ 33-34).

According to the plaintiff, the 2004 amended Stock and Side agreements provide, in relevant part, that: he was to receive the balance of the $3 million payment no later than April 5, 2005; that his employment would continue until "payment in full of the Purchase Price" (Amended Stock Purchase Agreement,¶ 9[a]; Side Agreement, ¶ 3; Termination Agreement, ¶¶ 1-2); that he was would be permitted to examine Marquees' books upon ten days' notice; and that he would be allowed to remove his personal property from Marquee's premises (Cmplt.,¶¶ 34-35; Pltff's Cross Mot., Exhs., "C," "G" see also, "Termination of Consulting and Employment Agreements" dated August 20, 2004, at ¶¶ 1-2; Marquee Exh., "C").

Pursuant to the Amended Stock Agreement the plaintiff also executed a general release in favor of the Marquee Group, Sartorio and Miecnikowski' s estate, as well as their "agents employees, shareholders, officers, [and] directors" (Pltff's Cross Mot., Exh., "C").

However, and as this Court noted in its September 19 Order, "[e]xcluded from the release, however, were 1) all obligations set forth in the amended stock purchase and settlement agreement, and 2) the indemnification of plaintiff by the released parties as to any claims asserted against plaintiff in his capacity as officer, director, or shareholder of Marquee" (Order at 5).

In November of 2005, plaintiff commenced the within action alleging, in sum, that the so-called attorney defendants made false and fraudulent statements; engaged in "deceitful and dishonest conduct" within the meaning of Judiciary Law § 487; committing attorney malpractice; tortiously interfered with his contract rights; and breached their fiduciary duty to him (Cmplt.,¶¶ 47-89).

The plaintiff's eighth cause of action alleges that Marquee breached the amended stock purchase agreement by, among other things, failing to pay all of the salary due and owing to him; depriving him of access to company books and records; refusing to pay certain costs and expenses he incurred since April 1, 2002 and by refusing to return all of his personal property to him (Cmplt.,¶¶ 90-93).

In June of 2006, the defendants moved to dismiss stated portions of the complaint motion pursuant to CPLR 3211[a], which motion was denied in part and granted in part, by order of this Court dated September 19, 2006.

Specifically, in its September 19 order this Court: (1) concluded that the general release was not necessarily applicable to the attorney defendants and that the breach of fiduciary duty claims were sufficient to withstand the defendants' motion to dismiss. However, the Court further held that the plaintiff's legal malpractice, tortious interference and Judiciary Law § 487 causes of action did not state a cause of action (Order at 7-12).

By notice dated April 26, 2007, the defendant Marquee now moves to dismiss the [*3]complaint insofar as asserted against it, pursuant to CPLR 3211[a][1], or alternatively, for summary judgment pursuant to CPLR 3212.

In support of its application, Marquee relies on the general release, and also asserts that it has now paid the $3 million dollar debt it owed to the plaintiff. Marquee notes in this respect and that the underlying note evidencing that obligation has since been surrendered by the plaintiff.

Marquee further contends that it paid all salary due and owing the plaintiff in conformity with the 2004 agreements (Sartorio Aff., ¶¶ 11-13; 17-18). Lastly, Marquee asserts that it has returned all of the plaintiff's personal property and owes nothing further to him.

The plaintiff Blum opposes the Marquee's application and cross moves for summary judgment on its eighth cause of action.

According to Blum, the defendants owe him: approximately $20,000 in unpaid salary; an additional $44,000.00 representing the unpaid portion of a $50,000.00 loan he made to one of the affiliated companies; certain "costs and expenses" allegedly contemplated by the 2004 agreement which he claims exceed $200,000.00 (Blum Aff., ¶¶ 6; 17-21; 22-23; 26-28).

The plaintiff also argues that certain items of personal property have not yet to be returned (Blum Aff., ¶¶ 29-31). The parties' motions are granted in part and denied in part.

It is settled that, on a motion to dismiss pursuant to CPLR 3211, the court may grant dismissal only when the "'documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law'"(Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005], quoting from, Held v Kaufman, 91 NY2d 425, 430-431 [1998] see also, Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]; Weinstein v. Hotel Acquisitions Corp., ___AD3d___, 2007 WL 2669216 [2nd Dept. 2007]).

Although "a general release which is "clear and unambiguous * * * will be enforced as a private agreement between the parties" (L & K Holding Corp. v. Tropical Aquarium at Hicksville, Inc., 192 AD2d 643 see also, Fuentes v. Aluskewicz, 25 AD3d 727, 729), if "the release is to be limited to only particular claims, demands or obligations, the instrument will be operative as to those matters alone'" (Kaminsky v. Gamache, 298 AD2d 361, 362, quoting from, Perritano v. Town of Mamaroneck, 126 AD2d 623, 624, see also, Apfel v. Prestia, 41 AD3d 520; Trama v. Eugene & Shirley Drach Realty Corp., 37 AD3d 454).

Initially, and to the extent that the defendants rely on the general release as a complete defense to all the plaintiff's claims, the Court notes as it did in its prior order that the release executed by the parties expressly excludes from its application "all obligations" set forth in the 2002 Amended Stock Purchase agreement and documents "executed in connection thereunder * * *"(Apfel v. Prestia, supra).

Nor do the relevant documents including an August 20, 2004 escrow agreement require that the plaintiff interpose objections prior to accepting the "settlement payment" payment in order to preserve rights expressly exempted from the scope of the release (cf., Santorio Aff., ¶ 7; Escrow Agreement,¶ 2; Marquee Brief at 9).

Turning to the salary component of the plaintiff's motion, the plaintiff relies on stated provisions of the 2004 agreements which provide, in sum, that the Marquee's obligation to pay salary would terminate only upon full payment of the $3 million purchase price (see, Amended Stock Agreement, ¶ 9; Side Agreement, ¶ 3; Termination Agreement, ¶¶ 1-2).

The plaintiff claims that the last pay check he received covered the period ending February 25, 2005 with a gross amount of $7,692.31; that the final payment on the $3 million [*4]purchase price was wired to plaintiff's counsel on March 8; and that plaintiff's counsel hand delivered those documents to Marquee on March 15, 2005 at which time he then, and only then, received the final installment on the $3 million amount (Blum Aff., ¶¶ 19-21).

Based on these facts, the plaintiff claims entitlement to salary covering the 17-day period between February 25 and March 15 a sum which he claims amounts to an additional $7,692.31 for 2005 (Blum Aff., ¶ 20).

The plaintiff also asserts that he is entitled to an additional sum of $11,681.21 for the 2003 calendar year "plus reimbursement" of unspecified expenses, although he concedes that he does not possess documentary materials supportive of this claim allegedly because the defendants have withheld back-up materiels from him (Blum Aff., ¶ 21).

The Court agrees that the plaintiff's submission have established his prima facie entitlement to judgment as a matter of law with respect to salary amounts due and owing for the 2005 calendar year.

Marquee's opposing submissions are conclusory and non-responsive in terms of addressing the fact-specific claims advanced by the plaintiff relative to the claimed, 2005 salary allegedly due and owing (see, Sartorio Aff in Opp., ¶¶ 8-9 fn 1), i.e., Marquee has not meaningfully addressed the plaintiff's payroll documents and attendant claims that he was not paid for the period between the February 25 paycheck and the point at which the final purchase price installment was made in mid-March of 2005 (see, Marquee Exhs., "H" "I").

The Court notes that Marquee's submissions (Marquee Exh., "L") include essentially the same payroll materials submitted by the plaintiff materials which are inconsistent with Marquee's unelaborated assertion that plaintiff was "paid up until the termination date," i.e., mid-March of 2005 (Marquee Exh., "L"; Sartorio Aff.,¶ 17; Marquee Main Brief at 5).

It is undisputed that the relevant provisions of the "Termination" and "Side" Agreements both provide that the plaintiff would be entitled to salary up to and including "the date of payment in full of the Purchase Price * * *" (Termination Agreement, ¶ 1 see also, Stock Purchase Agreement, ¶ 9[a]).

Lastly, the general release or "delivery" of same, is not a bar to recovery predicated unpaid salary, inasmuch as the release itself expressly excludes the foregoing salary obligation, as an obligation "set forth" by 2004 settlement documents.

The Court concludes, however, that questions of fact exist as to the alleged failure to pay salary due and owing for the 2003 calendar year.

Initially, the Court notes that the relevant documents do not appear to limit the recovery of unpaid salary to amounts which accrued subsequent to the 2004 settlement agreement. Indeed, the Amended Stock Agreements provides without relevant temporal limit that Marque would pay accrued and unpaid salary "owing * * * to ["the plaintiff] "through the Termination date" (Agreement, ¶ 9[a])[emphasis added]; Termination Agreement, ¶ 2).

The Court agrees, however, that the plaintiff has not supplied documentary materials relative to the 2003 salary claim which would support an award of summary judgment at this juncture.

The plaintiff also claims entitlement to $44,259.32, representing the unpaid amount left on a loan he allegedly made in the mid-1980's from his 401K plan, to one of the affiliated companies in which Marquee later invested, i.e., "Atomergic Chemicals Corp" ["Atomergic"] (Blum Aff.,¶¶ 22-23; Marquee Brief in Opp., at 9; Sartorio Aff.,¶ 12 see also, Pltff's Exh., "F").[*5]

Further, the plaintiff argues that (1) in 2002-2003, he advanced $12,500.00 on behalf of Marquee, during a trip he made to Israel during which he consulted with certain Israeli scientists concerning a new medical "oxygen detector" (Blum Aff.,¶ 25); (2) that he expended some $150,000 in costs and non-reimbursed expenses including, but not limited to, counsel fees which Marquee must supposedly pay him under paragpraph15.03 of the Amended Stock Purchase Agreement; and (3) that he has still not received all of his personal property, as set forth on a list which he has annexed to his motion papers (Pltff's Exh., "D").

Paragraph 15.03 of the Amended Stock Purchase Agreement provides as follows:

"Expenses. Except as otherwise expressly provided in this Agreement, whether or not the transactions contemplated hereby are consummated, each party will pay its own costs and expenses, and, upon execution hereof, the Purchaser [Marquee] shall pay the costs and expenses of the Companies including $16,000 of fees of Richard Feldman since April 1, 2002 arising out of the original Agreement provided thereunder."

The foregoing provision does not contain language requiring Marquee to reimburse the plaintiff for the personal expenses he has identified in his papers, i.e., travel expenses and other undocumented outlays including payments to his own attorney, incurred from 2002 to date, arising out of the sale of his stock to Marquee, as well as for fees expended in connection the contentious events which transpired between the parties from that date (see, Blum Aff., ¶¶ 28-29).

Moreover, assuming that the alleged pension loan was made to one of the affiliated companies and further assuming that the claim it is not long-barred by statute of limitations the plaintiff has not demonstrated precisely how the 2004 settlement documents would require Marquee to answer for that alleged debt which is nowhere memorialized as an obligation which would survive the broad language of the 2004 general release.

Nor does the Agreement make reference to outstanding and/or undocumented loans, advances or other alleged outlays to other entities as comprising the "costs and expenses of the Companies." Indeed, paragraph 15.03 provides in part that "each party will pay its own costs and expenses, * * *."

Lastly, the plaintiff asserts that the Amended Stock Purchase agreement entitles him to the release of his "personal property, personal files, personal books and furniture * * *" and that he has been denied access to that property, some of which has yet to be returned as set forth on an annexed list (Blum Aff., ¶ 29; Exh., "D").

The relevant provision of the Amended Stock Purchase Agreement provides, inter alia, that "[s]imultaneously with the execution of the Agreement * * * [Marquee] shall deliver to * * * [plaintiff] all of * * * [plaintiff's] personal property * * *."

The provision also contains an arbitration clause which states that, "[i]n the event the parties are unable to resolve the issue of a dispute as to what constitutes * * * [the plaintiff's] personal property, the same shall be resolved by a binding arbitration * * * to be conducted in Nassau County, New York."

Marquee asserts, among other things, that the plaintiff twice visited Marquee's premises with his attorney in 2004 and removed personal property therefrom; that it shipped various items to the plaintiff; and that the plaintiff accepted the final settlement payment without raising any [*6]claims relative to personal property (Sartorio Opp. Aff.,¶ 6; Sartorio Main Aff.,¶¶ 21-22; Ans, ¶ 9).

Marquee has interposed an affirmative defense in its answer based upon the arbitration clause (Marquee Main Brief at 6, fn 2; Sartorio Aff., ¶ 21; Ans., ¶ 11).

The Court agrees that the foregoing clause, while not a model of clarity, does not encompass the subject property dispute.

Although "[a]rbitration is favored in New York State as a means of resolving disputes (see, Matter of Smith Barney Shearson v. Sacharow, 91 NY2d 39, 49 [1997]), "a party may not be compelled to arbitrate a dispute unless there is evidence affirmatively establishing that the parties clearly, explicitly, and unequivocally agreed to arbitrate" which evidence may not "depend upon implication or subtlety" (Town of Mount Pleasant v. JJC Const. Corp.

35 AD3d 869, 870 see also, God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Associates, LLP, 6 NY3d 371 [2006]; Matter of Waldron [ Goddess ], 61 NY2d 181, 183-184).

Here, the involved clause provides that the arbitrable component of any disagreement relating to the plaintiff's personal property, would be limited solely to "the issue of a dispute as to what constitutes * * * [the plaintiff's] property * * *" (Amended Stock Agreement, ¶ 12)[emphasis added].

The dispute as framed by the parties' opposing claims is not the identity of the property allegedly retained by Marquee or what "constitutes" the plaintiff's property.

Rather, the plaintiff's claim is that stated property has simply not been returned; an assertion which Marquee has disputed by primarily arguing that (1) the plaintiff's personal property has, in fact, been returned (Santorio Aff., ¶ 21); (2) that the general release bars any claim therefor (Main Brief at 6 Sartorio Aff in Opp.,¶¶ 6-7); and/or (3) the plaintiff waived his right to rely on paragraph 12, since allegedly failed to raise any objection before accepting the final payment.

In any event, even assuming that the dispute as presently framed could be viewed as falling within the scope of the arbitration clause, the Court finds that the right to arbitrate has been waived.

It is settled that the right to arbitration may be waived or abandoned, "where the party against whom the waiver would operate contests the merits of the dispute or seeks affirmative relief through the judicial process" since such conduct is "inconsistent with a later claim that only the arbitral forum is satisfactory" (Stark v. Molod Spitz DeSantis & Stark, P.C., supra, at 485 see, Sherrill v. Grayco Builders, Inc., 64 NY2d 261, 273 [1985]; De Sapio v. Kohlmeyer, 35 NY2d 402, 405 [1974]; Fein v. General Elec. Co., 40 AD3d 807 cf., Roggio v. Nationwide Mut. Ins. Co., 66 NY2d 260, 263 [1985]).

At bar, the record plainly establishes that Marquee has elected to litigate the issue within the judicial forum by moving for summary judgment and advancing dismissal claims predicated upon the merits of the personal property dispute (see generally, De Sapio v. Kohlmeyer, supra; Jorge v. Sutton, 134 AD2d 573).

Further, it is notable that despite Marquee's claim that the instant matter is subject to mandatory arbitration, there is nothing in the record indicating that Marquee has, to date, actually sought to compel arbitration of the subject property dispute (cf., C.I. Planning v. Weeks, 112 AD2d 854, 856; Plateis v. Flax, 54 AD2d 813, 814).

Lastly, upon the thicket of conflicting allegations and claims interposed by the parties, [*7]the Court agrees that issues of fact exist as to whether, in fact, Marquee has properly "deliver[ed] all of the * * * [the plaintiff's] personal property" to him, in conformity with the parties' agreement.

Summary judgment is a drastic remedy which may be granted only where there is no clear triable issue of fact (Andre v. Pomeroy, 35 NY2d 361 [1974]; Mosheyev v. Pilevsky, 283 AD2d 469).Indeed, "[e]ven the color of a triable issue forecloses the remedy" (In re Cuttitto Family Trust, 10 AD3d 656;Rudnitsky v. Robbins, 191 AD2d 488, 489).

The Court has considered the parties' remaining claims and concludes that none warrants an award of relief in excess of that granted above.

The foregoing constitutes the Decision and Order of the Court.