ORDERED that the motion by the plaintiff for partial summary judgment on the issue of liability is denied; and it is further [*2]

ORDERED that the cross motion by the defendant for summary judgment dismissing the complaint is granted.

The plaintiff was hired by the defendant, Commonwealth Land Title Insurance Company ("Commonwealth") as a Vice President in October 2004. On March 18, 2005, the parties entered into an employment agreement, the term of which began on October 18, 2004, and ended on December 31, 2007. The agreement provided for a guaranteed annual salary plus incentives. It also provided that Commonwealth could only terminate the plaintiff's employment for cause upon written notice to the plaintiff. "Cause" was defined as, inter alia, conviction of a felony, commission of a dishonest act, continued malfeasance in the performance of the plaintiff's duties or a failure to perform such duties for more than 10 business days after receiving notice thereof. The agreement further provided that the plaintiff could only terminate his employment for good reason upon written notice to Commonwealth. "Good reason" was defined as a material reduction in the plaintiff's compensation or benefits, duties, responsibilities, or authority. Moreover, Paragraph 7 of the agreement provided as follows:

Notwithstanding anything to the contrary in this Agreement, in the event Employee terminates this Agreement with or without Good Reason or the Company terminates this Agreement with or without Cause, Employee shall be entitled to receive all salary due to the Employee through the date of termination and a prorated portion of the guaranteed incentive payment next due under paragraph 4(b)(i)(2) or 4(b)(i)(3) above as of the end of the month in which Employee's employment terminates, subject to the Company's right to offset any amounts owned by Employee to the Company as of the termination date.

The agreement contained three restrictive covenants (paragraphs 9, 10, & 11) prohibiting the plaintiff from competing with Commonwealth, soliciting its customers, and hiring its employees during the term of the agreement and a non-disclosure clause (paragraph 12) prohibiting the plaintiff from disclosing Commonwealth's confidential business information during the term of the agreement. The restrictive covenants (paragraphs 9, 10, & 11) provided that they would not apply if the plaintiff's employment were terminated by the plaintiff for good reason or by Commonwealth without cause. The agreement also contained a merger clause, which provided as follows:

This Agreement supersedes all prior agreements and understandings, oral or written, between Company and Employee with respect to the subject matter hereof and also represents the entire understanding of the Company and Employee with respect to the subject matter hereof.

Toward the end of the term of the agreement, the plaintiff began negotiating with Commonwealth for a renewal thereof. On January 30, 2008, the plaintiff sent Commonwealth an e-mail outlining three changes to the agreement (A, B & C). One of the changes (C) was to delete from paragraphs 7, 9, 10, and 11, the references to termination without cause. Commonwealth responded by forwarding to the plaintiff the following e-mail from the General Counsel for Human Resources of Commonwealth's parent company: [*3]

I will make the change in A, but the change he is requesting in C makes no sense. We can always terminate the agreement without cause, but would need to pay him out the full value of the contract if we did (i.e., it would be a breach of the agreement). The point of making reference to that in the restrictive covenants paragraphs is to make clear that if we do terminate the agreement without cause, Steve is not bound by those restrictions through the remainder of the contract term. That language is there to benefit him.

The plaintiff subsequently signed an addendum to the employment agreement which extended the term of his employment from January 1, 2008, to December 31, 2010; increased his base salary; modified the incentives; and amended paragraph 7 to replace the references to paragraphs 4(b)(i)(2) and 4(b)(i)(3) with a reference to paragraph 4(b)(iii). The addendum did not incorporate the change requested by the plaintiff to delete from paragraphs 7, 9, 10, and 11, the references to his termination without cause. The addendum further provided as follows:

Except as herein provided, all terms and conditions of the Agreement remain in full force and effect, including but not limited to the restrictive covenants contained in [Paragraphs] 9 through 12 of the Agreement. The provisions of this Addendum, along with the Agreement as herein modified, constitute the entire agreement of the parties and may only be modified in accordance with [Paragraph] 14 of the Agreement.

Paragraph 14 provides, "No amendment to this Agreement will be valid unless in writing signed by Employee and either the Chief Executive Officer or the President of Company."

In 2008, Commonwealth's parent company filed for bankruptcy, and the bankruptcy trustee sold Commonwealth on December 22, 2008. On January 8, 2009, the plaintiff and several other employees were advised that their employment was being terminated due to a reduction in sales staff by the new owner. The plaintiff was paid his salary up to the date of his termination and his incentives for the preceding year. He sought, but was not paid, his annual salary and the minimum incentives for the remaining term of his employment agreement, as amended. This action ensued.

The plaintiff moves for summary judgment on the ground that, since he was not terminated for cause, he is entitled to the balance of his compensation package for the full term of the agreement, as amended. In support thereof, the plaintiff relies on the e-mail from the General Counsel for Human Resources, who opined that, if the plaintiff were terminated without cause, Commonwealth would need to pay him the "full value" of his contract. Commonwealth opposes the plaintiff's motion and cross moves for summary judgment, relying on paragraph 7 of the employment agreement, which Commonwealth contends is unambiguous. Commonwealth also contends that, if the agreement is ambiguous, summary judgment should be denied. Additionally, Commonwealth disputes the reason for the plaintiff's termination and contends that it was for cause.

There is a heavy presumption that a deliberately prepared and executed written instrument [*4]manifests the true intention of the parties, and a correspondingly high order of evidence is required to overcome that presumption (Chimart Assoc. v Paul, 66 NY2d 570, 574). Thus, when parties set down their agreement in a clear and complete document, their writing should be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended, but unstated or misstated, is generally inadmissible to add to or to vary the writing (W.W.W. Assocs., Inc., v Giancontieri, 77 NY2d 157, 162). The parol evidence rule bars the consideration of extrinsic evidence of the meaning of a complete written agreement if the terms of that agreement, when considered in isolation, are clear and unambiguous (Id. at 162-163). If the terms are ambiguous or contradictory, however, the rule permits the consideration of such evidence, not to alter the terms, but solely to ascertain their true meaning (Wayland Inv. Fund, LLC v Millenium Seacarriers, Inc., 111 F Supp 2d 450, 454 [SDNY]).

The court finds that, contrary to the plaintiff's contentions, the employment agreement is not ambiguous, nor does it provide that Commonwealth could only terminate the plaintiff's employment for cause. Rather, it provides that Commonwealth could only terminate the plaintiff's employment for cause upon written notice. With respect to malfeasance in the performance of the plaintiff's duties or a failure to perform such duties, the agreement gave the plaintiff 10 days to cure any alleged malfeasance or failure. Thus, if the plaintiff's termination was for malfeasance or a failure to perform his duties, the plaintiff was entitled to notice and an opportunity to cure the alleged malfeasance or failure to perform. If the termination was for any other cause, such as conviction of a felony or commission of a dishonest act, the plaintiff was only entitled to notice; but if the termination was without cause, the plaintiff was not entitled to any notice. Whether the termination was for cause or without cause, the plaintiff's compensation was the same. The plaintiff was entitled to the salary due to him through the date of his termination and a prorated portion of his incentive payments due as of the end of the month in which his employment was terminated. Moreover, if the termination was for cause, the restrictive covenants enjoined the plaintiff from competing with Commonwealth, soliciting its customers, and hiring its employees until the end of the term of the agreement. If the termination was without cause, the plaintiff was free to seek employment elsewhere and to compete with Commonwealth. The record reflects that the plaintiff received all of the compensation to which he was entitled under the terms of the agreement, as amended, and that he obtained comparable employment with another title insurance company shortly after his termination from Commonwealth.

In addition to being unambiguous, the plaintiff's employment agreement and the addendum thereto contain merger clauses. The purpose of a merger clause is to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing (Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594, 599). The merger clause accomplishes this objective by establishing the parties' intent that the agreement is to be considered a completely integrated writing (Id. at 599-600). A completely integrated contract precludes extrinsic proof to add or vary its terms (Id. at 600). Accordingly, the court declines to consider the e-mail from the General Counsel for Human Resources interpreting the employment agreement. [*5]

In view of the foregoing, the court finds that the defendant has established, prima facie, its entitlement to judgment as a matter of law. Not only has the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, but he has failed to raise a triable issue of fact in opposition to the defendant's prima facie case. Accordingly, the motion is denied; the cross motion is granted, and the complaint is dismissed.

Dated:June 10, 2011

J.S.C.