This case presents several causes of action brought by the plaintiff, a former ambitious paralegal, against her law firm based on an alleged fee-splitting arrangement or what she styles as breach of their "profit-sharing arrangement." A lot of her causes of action, including for her termination, are predicated on the implied covenant of good faith and fair dealing.

Upon the foregoing papers, it is ordered that the motion is determined as follows:

According to the complaint, in September 2000, plaintiff was hired as a full-time paralegal by defendants Goldblatt & Associates, P.C. (firm), and Kenneth B. Goldblatt, Esq. (Goldblatt). Plaintiff claims that, in addition to her salary, she was offered bonus and profit sharing incentives as part of her employment compensation package. Plaintiff states that the firm instructed her that she would be rewarded with this additional income based on:

(1) her ability to bring into the firm profitable personal injury matters;

(2) the amount of extra time she spent working on those matters; and

(3) an established "profit sharing plan" wherein plaintiff was eligible to receive up to 33% of the total net compensation generated from same. Plaintiff asserts that this profit sharing plan became "an integral part of [her] compensation package" and became her "income expectation."

In November 2002, plaintiff brought a matter (the Nadelman matter) into the firm, which settled for $100,000, of which plaintiff received a net bonus of approximately $8,000. On or about November 7, 2002, plaintiff brought another matter into the firm (the Rosenberg matter), and the firm agreed that, if profitable, the profit sharing plan would be in effect at the conclusion [*2]of said matter. When the case settled for $1.2 million, plaintiff received only $17,500. Thereafter, plaintiff objected to this distribution as inconsistent with the firm's prior course of conduct, and demanded an accounting of how the profit sharing distribution was configured. Plaintiff states that, to date, she has been denied same with respect to the Rosenberg matter, as well as three other matters for which plaintiff states she is entitled remuneration.

Plaintiff then commenced this action stating causes of action to recover for breach of contract, breach of implied covenant of good faith and fair dealing, promissory estoppel, intentional infliction of emotional distress, and wrongful termination.

In support of their motion for summary judgment, defendants submit Goldblatt's affidavit. Goldblatt states, in relevant part, that:

1. when plaintiff was offered the paralegal position, there was no employment contract or employee manual, nor were any promises made to plaintiff with respect to duration of employment;

2. plaintiff received a fixed salary with vacation, sick, and personal time, and would be eligible for year-end bonuses based on merit and profitability of the firm;

3. plaintiff was told that the firm did not offer a profit sharing plan; that plaintiff's hiring, terms of employment, and benefits were equivalent to those of other employees;

4. when plaintiff brought in the Nadelman matter, Goldblatt gave her an $8,000 merit bonus in light of plaintiff's extra efforts in assisting in same; that this bonus was not given to plaintiff as part of a profit sharing plan;

5. in 2004, Goldblatt decided that he would relocate the firm's primary office from Manhattan to Peekskill;

6. plaintiff expressed her desire to stay with the firm despite the long commute and her physical condition, after having been diagnosed with cancer sometime in 2002 or 2003;

7. after moving the office, plaintiff was exhibiting difficulties with maintaining her new part-time work schedule;

8. it became apparent to Goldblatt that the firm would need a full-time paralegal;

9. Goldblatt and plaintiff mutually agreed that plaintiff's last day of employment would be May 26, 2005; and

10. at the end of 2005, the firm settled two matters on which plaintiff had performed extraordinary work, one of which being the Rosenberg matter; on January 26, 2006, Goldblatt [*3]forwarded a bonus to plaintiff in the amount of $17,500.00, and this bonus was not given to plaintiff as part of a profit sharing plan.

Defendants also submit Goldblatt's January 26 correspondence with plaintiff in which Goldblatt states that "[a]s an expression of my appreciation and as a bonus for the outstanding work that you performed on both matters while you were an employee of the firm, I am enclosing a bonus in the amount of $17,500."

Finally, defendants submit the respective affidavits of current and former staff at the firm. These affidavits reveal, in relevant part, that - - at the time of plaintiff's employ - - there was no profit sharing plan in place, staff was given bonuses based on merit and profitability of the firm, and these bonuses were never guaranteed.

With respect to plaintiff's cause of action to recover for intentional infliction of emotional distress, defendants demonstrated that the conduct giving rise to plaintiff's claims ended on or about January 2006, and the instant action was commenced on October 9, 2007. Therefore, defendants established - - without opposition - - that this cause of action is barred by the one-year statute of limitations (CPLR 215[3]; see, Dinerman v City of NY Admin. for Children's Servs., 50 AD3d 1087 [2d Dept. 2008]; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356 [2d Dept. 2005]).

Turning to plaintiff's claim for wrongful termination, it is well-settled law that, "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" (Sabetay v Sterling Drug, 69 NY2d 329, 333 [1987]; see, Lobosco v New York Tele. Co./NYNEX, 96 NY2d 312, 316 [2001]; Trakis v Manhattanville Coll., 51 AD3d 778 [2d Dept. 2008]; Marino v Oakwood Care Ctr., 5 AD3d 740 [2d Dept. 2004]). Defendants established, prima facie, that their agreement with plaintiff was an at-will employment agreement with no fixed duration, and there is no evidence that defendants limited their right to discharge her. Defendants thus could have terminated plaintiff's employment at any time for any reason or for no reason at all (see, Monheit v Petrocelli Elec. Co., Inc., 73 AD3d 714 [2d Dept. 2010]; Devany v Brockway Dev., LLC, 72 AD3d 1008 [2d Dept. 2010]; McGimpsey v J. Robert Folchetti & Assoc., LLC, 19 AD3d 658 [2d Dept. 2005]).

In opposition, plaintiff did not dispute that she was an at-will employee. To the extent that plaintiff argues that the only reason she was terminated was because of her demand for an accounting of the firm's profit sharing plan and other personal reasons, there is no requirement that plaintiff need to have been discharged in good faith (see, Sabetay, 69 NY2d at 335; Trakis, 51 AD3d at 780) or for good reason, as noted above. Thus, plaintiff has failed to raise an issue of fact.

Turning now to plaintiff's cause of action for breach of a profit sharing contract, defendants met their prima facie burden of establishing that no such contract existed by virtue of the respective affidavits of Goldblatt and the other current and former staff at the firm. The [*4]affirmation of plaintiff's attorney, submitted in opposition, fails to address defendants' showing; rather, plaintiff exclusively discusses whether plaintiff has "presented a viable claim against defendant Goldblatt, for quantum meruit and unjust enrichment based upon promissory estoppel within a fiduciary relationship." Thus, plaintiff has failed to raise an issue of fact.

With respect to plaintiff's cause of action for breach of an implied contract, defendants solely argue that same is barred by the statute of frauds. Pursuant to General Obligations Law § 5-701 (a) (1), "[e]very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [b]y its terms is not to be performed within one year from the making thereof." However, General Obligations Law § 5-701 (a) (1) has long been interpreted "to encompass only those contracts which, by their terms, have absolutely no possibility in fact and law of full performance within one year' " (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998], quoting D & N Boening v Kirsch Beverages, 63 NY2d 449, 454 [1984]; see, Cottone v Selective Surfaces, Inc., 68 AD3d 1038 [2d Dept. 2009]; Micena v Katz, 68 AD3d 826 [2d Dept. 2009]).

Since the alleged oral agreement was an at-will employment agreement encompassing a promise to pay a proportionate share of funds received from successful matters brought in by plaintiff, which was capable of being performed within one year, it is not barred by the statute of frauds (see Cron, 91 NY2d at 367; Weiner v McGraw-Hill, Inc., 57 NY2d 458, 463 [1982]; Cottone, 68 AD3d at 1040). Defendants thus have failed to meet their burden on this cause of action.

Turning to plaintiff's claim for breach of the implied covenant of good faith and fair dealing, the Court disagrees with defendants in that plaintiff cannot maintain this cause of action without a written contract between the parties. A covenant of good faith is implied in all contracts (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002]), albeit oral ones. However, "where an employment agreement provides that the employment will be at will, the implied covenant of good faith and fair dealing cannot create an obligation to terminate only for cause" (Cannon and Fessel, Com. Litig. in New York State Courts § 64:23 [4A West's NY Prac Series (2d ed. 2009)]); therefore, defendants need not have terminated plaintiff's employment only in good faith and with fair dealing (see Sabetay, 69 NY2d at 335; Murphy v American Home Prods. Corp., 58 NY2d 293, 304-305 [1983]; McGimpsey, 19 AD3d at 659).

The one prominent exception to this rule is found in the seminal decision in Wieder v. Skala, 80 NY2d 628 [1992], upholding a law firm's associate cause of action to sue a private law firm for his discharge since the law firm had tried to retaliate against the plaintiff law firm associate for pressuring the partners of the law firm to report to disciplinary authorities a fellow associate with a pathology of lying who resorted to lies and forgeries to cover his misdeeds. Because of the reporting obligations that are mandatory upon lawyers by virtue of the Disciplinary Rules in New York, the Court of Appeals upheld plaintiff's right to sue based upon [*5]the implied obligation and covenant of good faith and fair dealing. Inherent in the relationship between law firm and associate was that they would all abide by the Disciplinary Rules posited in New York's Code of Professional Responsibility. Id. at 635-638.

By ruling in favor of Wieder, the New York Court of Appeals, in a unanimous landmark holding reversing the lower courts, gave birth to what is now known as a "Wieder claim." See, e.g., Kelly v. Hunton & Williams, 1999 WL 408416, Slip Op. at 6, 7, & 9, 15 IER Cases 451 [EDNY 1999]; McConchie v. Wal-Mart Stores, Inc., 985 F Supp 273, 279 [NDNY 1997]; Connolly v. Napoli, Kaiser & Bern, LLP, 12 Misc 3d 530, 533 [Sup Ct New York County 2006]; Horn v. New York Times, 186 Misc 2d 469, 473 [Sup Ct New York County 2000], aff'd, 293 AD2d 1 [1st Dept. 2002], rev'd, 100 NY2d 85 [2003].

The case at bar has far different facts and does not involve or implicate any set or code of professional ethical norms. The facts of Wieder demonstrated a shocking disregard by the partners of the law firm for the rights of the public to have a law firm police its own law firm for substantial ethical misconduct. The present case essentially boils down to a private financial dispute between the parties. Unlike the vindictive misconduct by the partners of the law firm against the plaintiff associate discussed in Wieder, the defendants in the present case have demonstrated that Goldblatt acted in good faith by, among other things, allowing plaintiff flexibility with respect to her work schedule, offering her certain benefits which were not offered to other employees, and paying her salary and health benefits for seven months after her termination of employment with the firm. By again neglecting to address this issue in the affirmation in opposition, plaintiff has failed to raise a triable issue of fact. At any rate, the umbrella given to plaintiffs in Wieder, under certain narrow circumstances, cannot be stretched beyond all recognition in trying to protect the paralegal who simply wanted "a bigger share of the pie" with regard to the cases she helped bring to her former employer.

Finally, turning to plaintiff's cause of action based upon promissory estoppel, the elements of such a claim are: (1) a clear and unambiguous promise; (2) reasonable and foreseeable reliance by the party to whom the promise is made; and (3) an injury sustained by the promisee (see, AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6 [2d Dept. 2008]; Williams v Eason, 49 AD3d 866 [2d Dept. 2008]).

While defendants established, prima facie, that plaintiff was not promised a proportionate share of funds received from successful matters she brought into the firm, plaintiff has raised a triable issue of fact in opposition. Plaintiff's affidavit states that defendants did promise that, as part of her compensation package, plaintiff would also receive approximately one-third of the net fees generated from such matters. Plaintiff indicates that reliance on this promise was reasonable considering, among other things:

(1) the firm's previous course of conduct with respect to profit sharing; and

(2) plaintiff's knowledge that other employees also understood there to be a profit sharing plan [*6](plaintiff submits the affidavit of a former employee who states that defendants implemented this profit sharing scheme).

Plaintiff states that she relied on this promise to her detriment by going above and beyond what was required of her, knowing that her extra work, coupled with the ability to generate a successful outcome for matters she brought into the firm, would result in the stated bonus. Furthermore, plaintiff states that she sustained injury when, after having brought in several successful matters into the firm, her bonus was vastly disproportionate to what she had expected to receive based upon defendants' promise.

The Court notes that plaintiff's arguments with respect to quantum meruit and unjust enrichment will not be considered inasmuch as they allege new theories of recovery which were not pleaded as causes of action in the complaint.

Accordingly, defendants' motion for summary judgment dismissing plaintiff's complaint is granted only to the extent that plaintiff's causes of action for intentional infliction of emotional distress, wrongful termination, breach of a profit sharing contract, and breach of the implied covenant of good faith and fair dealing, are dismissed.

The portion of the motion seeking dismissal of plaintiff's claims under breach of an implied-in-fact contract and promissory estoppel is denied.

The foregoing constitutes the decision, opinion, and order of the Court.

Dated: June 21, 2010

J.S.C.

Appearances of Counsel:

For the Plaintiff: Raphaelson & Levine Law Firm, P.C., by Mark Glen Sokoloff, Esq., 14 Penn Plaza, suite 407, New York, New York 10122

For the Defendant: John C. Sullivan, Esq., 22 Saw Mill River Road, Hawthorne, New York 10532