Defendant Geoffrey O. Sherry moves, pursuant to CPLR 3211 (a)(1), (5) and (7) to [*2]dismiss plaintiff Timothy S. Koether's first amended complaint. Plaintiff alleges that defendant failed to make profit payments to plaintiff in contravention of a profits sharing agreement relating to their hedge fund trading business and that defendant violated a duty of loyalty owed to plaintiff by excluding plaintiff from participation in the profits and ownership of an investment fund known as Lucidus Capital Partners LLP.

In the complaint, plaintiff alleges that he met defendant in 1998, when plaintiff was employed by UBS as a research analyst, and defendant was employed by JP Morgan Chase as head of high-yield trading. Plaintiff joined JP Morgan Chase as a senior energy analyst in 2000. Following defendant's return to New York City from London in 2002, plaintiff asserts that he and defendant forged a close personal and business relationship that included celebrating family milestones and holidays together. In 2004, defendant approached plaintiff about leaving JP Morgan Chase together to start a "North American Credit business" for a hedge fund. According to plaintiff, defendant asked plaintiff if he would be his "partner", with the understanding that plaintiff would conduct research and defendant would trade.

Ultimately, defendant, acting for himself and plaintiff, entered into negotiations with non-party Caxton Associates L.P. (Caxton) to set up a North American Credit business trading in fixed income securities for Caxton. Under the proposed arrangement, Caxton would provide capital and financial support and plaintiff and defendant would operate and manage the business for a percentage of the profits. Prior to reaching a final agreement with Caxton, plaintiff asserts that he and defendant agreed to share the salary component paid by Caxton on a 50-50 basis and to divide the net profit payout on a 75-25 percent basis after payment of expenses (75 percent for defendant and 25 percent for plaintiff). On a vacation trip with their wives, shortly before they reached a final agreement with Caxton, defendant allegedly told plaintiff's wife that "they would be partners as the two of them had a great ability to work together."

On reaching a final agreement with Caxton in March 2005, plaintiff and defendant resigned their positions at JP Morgan Chase. Plaintiff asserts that JP Morgan Chase made "substantial overtures" to plaintiff in order to have plaintiff stay and was advised he was on track to be promoted to managing director, but plaintiff rejected these overtures in reliance on his agreement with defendant. In the final agreement, Caxton agreed to provide $200,000,000 in capital in order to commence trading activities and agreed to provide a 10 percent payout of net trading profits after sharing expenses on a 60-40 basis and a "salary component" of $350,000. If and when $100,000,000 in aggregate profitability was reached, Caxton further agreed to increase the payout of net trading profits to 15 percent and the "salary component" to $900,000. The net trading profit would be distributed by Caxton as directed by defendant "to selected employees, including [plaintiff], as year-end additional compensation . . ." In addition to their agreement regarding the division of net profits and the salary component, plaintiff and defendant agreed: (1) that they would work as a business management team, sharing responsibility for staffing and determining the compensation of the other employees, who would report to them; and (2) that plaintiff would be responsible [*3]for research and defendant would be responsible for trading.

After plaintiff and defendant joined Caxton, defendant identified plaintiff as his partner to "other Caxton employees" and to representatives of other major entities in the industry. In addition, defendant requested that plaintiff be allowed to participate in Caxton's deferred compensation program because plaintiff was his partner. For the years 2005 through 2008, plaintiff and defendant shared the net profits of the North American Credit business and a Caxton's G2 Fund (started in 2006) pursuant to the agreed 75-25 percentage split. In 2009, however, plaintiff only received 13 percent of the net profit payout from the North American Credit business and the G2 Fund and, in 2010 he only received a 7 percent payout from the North American Credit business and G2 Fund.

Aside from these issues relating to the North American Credit business and G2 Fund, plaintiff complains that in 2008, defendant and a president of Caxton began to raise funds for a new entity called Lucidus Capital Partner LLP (Lucidus). Lucidus was established in or around 2009, and allegedly used the same trading principles and strategies used by plaintiff and defendant with respect to the North American Credit business and the G2 fund and also involved trading in fixed income securities. Defendant allegedly owns 37.5% of Lucidus. Plaintiff, however, was excluded from participation in the profits and ownership of Lucidus and at some point, upon a direction from defendant, North American Credit business began to "wind down" its trading activities. In May 2011, a 25 percent stake in Lucidus was sold to AMF, a subsidiary of Credit Suisse First Boston, for $44,000,000, suggesting that defendant's 37.5 percent stake was worth $66,000,000.

Based on these factual allegations, plaintiff alleges 10 "claims for relief": (1) breach of contract premised on defendant's failure to allocate to plaintiff the full 25 percent of the net profit payout from the North American Credit business and G2 Fund for 2009, 2010 and 2011; (2) breach of an implied contractual obligation premised on defendant's failure to allocate to plaintiff the full 25 percent of net profits despite the parties' agreement that was relied upon by plaintiff and the pattern and practice of profit division; (3) breach of the parties' partnership agreement requiring a 25 percent payout of net profits for the years 2009 to 2011; (4) breach of fiduciary duties premised on defendant's failure to allocate to plaintiff the full 25 percent payout of net profits; (5) unjust enrichment based on defendant's retention of plaintiff's share of net profits from North American Credit business and G2 Fund, plaintiff's claimed share of the Lucidus-AMF transaction and plaintiff's claimed share of Lucidus; (6) breach of the implied covenant of good faith and fair dealing by failing to allocate to plaintiff his full share of net profit; (7) promissory estoppel premised on defendant's failure to allocate to plaintiff his full share of net profits; (8) imposition of a constructive trust with respect to defendant's share in Lucidus based upon defendant's breach of fiduciary duty not to engage in a competing business; (9) an injunction barring defendant from continuing to employ the business strategy the parties developed for the North American Credit business to the exclusion of plaintiff; and (10) an accounting requiring defendant to account for the fruits of his wrongdoing, including the diversion of assets and [*4]business opportunities.

In moving to dismiss the complaint, defendant has submitted several documents relating to plaintiff and defendant's relationship with Caxton.^[FN1] Among these documents is Caxton's March 4, 2005 offer letter to plaintiff, "conditional upon the employment of Geoffrey Sherry", signed by plaintiff, that noted that plaintiff would be employed as a trader in Caxton's New York office reporting to defendant. The offer letter notes that plaintiff's salary would be $175,000 and that he would receive a guaranteed minimum bonus of $400,000 for the 2005 calendar year, payable in January 2006. The letter also stated that, "[n]othing contained herein shall be interpreted as altering your status as an employee at-will or as a guarantee of employment for any specific duration. Your employment may be terminated by you or Caxton at any time with or without cause." Defendant also submits an undated letter signed by Christian Burrows on behalf of Lucidus and signed by plaintiff that informed plaintiff that, as of July 1, 2009, he would be employed by Lucidus in addition to Caxton, but that the terms and conditions of his employment would otherwise remain the same. Defendant further submits an employment application plaintiff filled out for Caxton in which plaintiff checked "no" when asked "ARE YOU A SOLE PRACTITIONER, PARTNER, OR OWNER OF AN ORGANIZATION, OR DO YOU OPERATE AS A BROKER THAT ENGAGES IN SECURITIES PURCHASE AND SALES?" Caxton's March 4, 2005 offer letter to defendant states that defendant would be employed as a portfolio manager with a $250,000 base salary, indicates that defendant had authority to hire two additional staff members, and outlines the terms of the incentive compensation (variously referred to as "trading profits," "profit payout,""net profit payout," or "additional compensation pool" in the complaint) to be provided to defendant, who would have the discretion to apportion staff bonuses out of such incentive compensation.^[FN2] A copy of [*5]Caxton's "CONFIDENTIALITY AND OWNERSHIP OF INTELLECTUAL PROPERTY AGREEMENT" (Confidentiality Agreement), signed by plaintiff on March 5, 2005, in which plaintiff agreed to assign to Caxton all "know-how, copyrights, patents, inventions, and CONFIDENTIAL INFORMATION" (Confidentiality Agreement ¶ 6), has also been provided by defendant. The Confidentiality Agreement's definition of confidential information includes, among other things, "trading and portfolio systems, models, and strategies" and "investment know-how" (Confidentiality Agreement ¶ 2).

Defendant has made his motion to dismiss based on documentary evidence (CPLR 3211 [a] [1]) and for failure to state a cause of action (CPLR 3211 [a] [7]). In considering a motion to dismiss for failing to state a cause of action under CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (CPLR 3026), and the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (see Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]; Leon v Martinez, 84 NY2d 83, 87-88 [1995]). Although evidentiary material may be considered in determining the viability of a complaint, the complaint should not be dismissed unless defendant has established "that a material fact alleged by the plaintiff is not a fact at all and that no significant dispute exists regarding it" (Stewart v New York City Tr. Auth., 50 AD3d 1013, 1014 [2d Dept 2008] [internal quotation marks and citations omitted]; see also Lawrence v Miller, 11 NY3d 588, 595 [2008]; Nunez v Mohamed, 104 AD3d 921, 922 [2d Dept 2013]). Similarly, a motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Harris v Barbera, 96 AD3d 904, 905 [2d Dept 2010]). To qualify as documentary evidence, printed materials "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86 [2d Dept 2010]; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808 [2d Dept 2012]).

Turning first to plaintiff's breach of contract cause of action (identified in the complaint as "First Claim For Relief"), defendant initially asserts that he is entitled to dismissal because the oral agreement at issue here is barred by the statute of frauds (General Obligations Law § 5-701; CPLR 3211 [a] [5]). Defendant asserts that the agreement violates the statute of frauds provision requiring a writing where the agreement cannot be performed in a year (General Obligations Law § 5-701 [a] [1]). As plaintiff has failed to allege that the parties' oral profit sharing agreement had any definite term of duration, and no certain term [*6]can be supplied by implication, the agreement is deemed to be terminable at will (see Interweb, Inc. v iPayment, Inc., 12 AD3d 164, 165 [1st Dept 2004], lv dismissed 4 NY3d 776 [2005]; see also Gelman v Buehler, 20 NY3d 534, 537-539 [2013]; cf. Better Living Now, Inc. v Image Too, Inc., 67 AD3d 940, 941-942 [2d Dept 2009]). A profit sharing agreement that is terminable at will does not fall within the bar of the statute of frauds for contracts that cannot be performed within a year, even if the payment may not be ascertained until after a year (see Cron v Hargo Fabrics, 91 NY2d 362, 366-371 [1998]; Foster v Kovner, 44 AD3d 23, 26-27 [1st Dept 2007]; Ronis v Carmine's Broadway Feast, Inc., 2012 WL 3929818 * 8-9 [SDNY 2012]; see also Ryan v Kellogg Partners Inst. Servs., 19 NY3d 1, 14-15 [2012]).

Defendant also argues that the oral profit sharing agreement violates the statute of frauds' provision requiring a writing where the agreement involves the payment of compensation for services rendered in negotiating the purchase of a business opportunity (General Obligations Law § 5-701 [a] [10]). Defendant's attempt to fit the profit sharing agreement at issue here into the framework of section 5-701 (a) (10) relies on a strained reading of the complaint. Plaintiff's allegations simply do not indicate that it involves an agreement between a finder or other such negotiator of a business opportunity and a principal that is intended to be covered by section 5-701 (a) (10) (see Dura v Walker, Hart & Co., 27 NY2d 346, 348-352 [section 5-701 (a) (10) did not apply to oral agreement between two finders to share a commission]; cf. Snyder v Bronfman, 13 NY3d 504, 508-510 [2009]).

Contrary to defendant's assertions, the absence of a specified duration for the agreement does not render it unenforceable (see Muhlstock v Cole, 245 AD2d 55, 58 [1st Dept 1997]). Here, as noted above, the agreement is deemed, by necessary implication, to be terminable at will (see Interweb, Inc., 12 AD3d at 165; see also Gelman, 20 NY3d at 537-539; cf. Better Living Now, Inc., 67 AD3d at 941-942]). Consequently, the absence of any express agreement with respect to the duration of the agreement does not render the agreement too indefinite to be enforced (see Muhlstock, 245 AD2d at 58; cf. Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482-483 [1989] [absence of express agreement regarding price did not render agreement indefinite]; but see Matter of Sud v Sud, 211 AD2d 423, 424 [1st Dept 1995] [absence of duration of term of contract one of several unresolved terms that rendered alleged contract too indefinite to be enforced]).

Defendant next contends that plaintiff cannot claim the existence of a profit sharing agreement with defendant because defendant's agreement with Caxton gave defendant the discretion to determine the allocation of the net profit distributions and because plaintiff's letter agreements with Caxton and Lucidus do not mention any agreement plaintiff had with defendant. These contentions regarding plaintiff and defendant's agreements with Caxton, however, have no bearing on what plaintiff and defendant could agree to with each other (see Eden v St. Lukes-Roosevelt Hosp. Ctr., 2010 NY Slip Op 30138 [U] [Sup Ct, New York County 2010] [found allegations of similar oral profit sharing agreement amongst several doctors employed at a hospital stated a cause of action against the doctors], affd 96 AD3d 614 [1st Dept 2012]). [*7]

On the other hand, as defendant correctly asserts, since the alleged profit sharing agreement at issue was terminable at will, as an alternative to termination, defendant had the right to modify the terms of the agreement unilaterally, and plaintiff, by continuing his work despite the changed terms, is deemed to have consented to the new terms (see Kronick v L.P. Thebault Co., Inc., 70 AD3d 648, 649 [2d Dept 2010]; Gordon v Wilson, 68 AD3d 1058, 1060 [2d Dept 2009]; Waldman v Englishtown Sportswear, 92 AD2d 833, 835 [1st Dept 1983]). This rule of law works only prospectively, however, and defendant could not reduce plaintiff's share of net profits earned prior to the change in the terms of the alleged profit sharing agreement (see JCS Controls, Inc. v Stacey, 57 AD3d 1372, 1373-1374 [4th Dept 2008]; Gebhardt v Time Warner Entertainment-Advance/Newhouse, 284 AD2d 978, 979 [4th Dept 2001]; Horowitz v La France Indus., Inc., 274 App Div 46, 48 [1st Dept 1948]; see also First Monroe v Regency Manor assoc., 221 AD2d 1023, 1023 [4th Dept 1995]). As it is unclear exactly when or how defendant informed plaintiff that he was reducing the percentage of profits he was going to pay him,^[FN3] or how much of such profits had been earned prior to the change in terms, plaintiff's continuing to work for defendant after the change in terms does not require the dismissal of the breach of contract cause of action.

Defendant, however, is entitled to dismissal of plaintiff's breach of the implied covenant of good faith and fair dealing (Sixth Claim for Relief) since, as pleaded, it is duplicative of the breach of contract action (see Sebastion Holdings Inc. v Deutsche Bank AG, 108 AD3d 433 [1st Dept 2013]; Baer v Complete Off. Supply Warehouse Corp., 89 AD3d 877, 878 [2d Dept 2011]; R.I. Island House, LLC v North Town Phase II Houses, Inc., 51 AD3d 890, 896 [2d Dept 2008]), as is plaintiff's second claim for relief premised upon a pattern and practice evidencing an implied contract.

An implied-in-fact contract requires the same elements as an oral or written contract and arises where the agreement and promise have not been expressed in words (Maas v Cornell Univ., 94 NY2d 87, 93-94 [1999]). A contract cannot be implied in fact, however, where there is an express contract covering the same subject matter, as plaintiff has alleged (Ludman Elec. Inc. v Dickran, 74 AD3d 1155, 1155 [2d Dept 2010]). The evidence of prior practice, in this case, merely corroborates plaintiff's claim of an express contract. If no express profit sharing agreement to pay plaintiff is proved, there is no basis to imply such an agreement from the other facts alleged in the complaint. It is the parties' conduct, not verbal assurances or promises, that determines the existence of an implied-in-fact contract (see Zimmer v Town of Brookhaven, 247 AD2d 109, 114 [2d Dept 1998]; see Parsa v State of New York, 64 NY2d 143, 148 [1984]). In light of the Caxton written agreement to pay plaintiff, without the alleged express verbal promises made by defendant regarding the payment of a certain level of compensation, there is no basis to infer from conduct alone that [*8]defendant individually had reached a separate agreement with plaintiff regarding compensation (see Tjoa v Butterfield, 205 AD2d 526, 526-527 [2d Dept 1994]). Defendant is therefore entitled to dismissal of plaintiff's implied contract cause of action (Second Claim for Relief).

For similar reasons, plaintiff has not stated an unjust enrichment claim (Fifth Claim for Relief) against defendant. As an employee of Caxton, plaintiff performed his services at the behest of Caxton and for the benefit of Caxton, precluding a finding that defendant has been unjustly enriched by these services (see Paramount Film Dist. Corp. v State of New York, 30 NY2d 415, 421-422 [1972], cert denied 414 US 829 [1973]; Gary Powell, Inc. v Mendel/Borg Group, 237 AD2d 407, 408-409 [2d Dept 1997]; Stone v Solarbrite, Inc., 128 AD2d 696, 696 [2d Dept 1987]; see also Branch Services, Inc. v Cooper, 102 AD3d 645, 647-648 [2d Dept 2013]; Ehrlich v Froehlich, 72 AD3d 1010, 1011 [2d Dept 2011]). If plaintiff cannot establish his contract claim, there is no basis for equitable recovery against defendant for unjust enrichment. Moreover, the existence of a valid express contract precludes recovery in quasi contract (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 23 [2005]).

Turning to plaintiff's claim that he entered into a partnership (Third Claim for Relief) with defendant, "[a] partnership is an association of two or more persons to carry on as co-owners a business for profit" (Partnership Law § 10 [1]). As the court stated in Czernicki v Lawniczak (74 AD3d 1121, 1124 [2d Dept 2010]):

"When there is no written partnership agreement between the parties, the court must determine whether a partnership in fact existed from the conduct, intention, and relationship between the parties . . . Factors to be considered in determining the existence of a partnership include (1) sharing of profits, (2) sharing of losses, (3) ownership of partnership assets, (4) joint management and control, (5) joint liability to creditors, (6) intention of the parties, (7) compensation, (8) contribution of capital, and (9) loans to the organization" (id. at 1124 [internal citations omitted]).

The criteria set forth in Czernicki requires a determination of fact. The factors to be considered need not all be established as the conduct, intention and relationship of the parties are critical. Defendant argues that the complaint fails to allege the necessary elements of a partnership and contends that documentary evidence conclusively refutes the existence of a partnership between plaintiff and defendant. Defendant is incorrect.

In his "Third Claim for Relief", plaintiff alleges, based upon all prior allegations relating to a contract between plaintiff and defendant respecting the 75/25 sharing of the "Additional Compensation Pool", that the parties had formed a partnership to supply Caxton with their co-ordinated services in developing a "North American Credit business." As plaintiff states in his brief, the relationship between Caxton and the partnership ran through defendant, who, as plaintiff's partner, would owe him a fiduciary duty (see Fischer v KPMG Peat Marwick, 195 AD2d 222, 225 [1st Dept 1994]). [*9]

Addressing the elements of a partnership, the gravamen of plaintiff's complaint is based upon the parties' agreement to use their shared expertise in developing an aspect of Caxton's business and to share the profits. The documentary evidence submitted, including many communications between Caxton and defendant, clearly support plaintiff's argument that such agreement had, in fact, been implemented. Moreover, since the profits to be shared were only based upon a sum remaining after deduction of all expenses, including bonuses paid to other employees of the partnership, there was a sharing of losses built into the arrangement. Thus, the essential element of a partnership, an agreement to share the profits and losses of the venture, has been pleaded (see Community Capital Bank v Fischer & Yanowitz, 47 AD3d 667, 668 [2d Dept 2008]). Other e-mails between plaintiff and defendant evidence their joint management of the endeavor in determining compensation to be paid to other members of their team and in formulating strategy to maximize profits. Although it has been held that "an individual who has no proprietary interest in a business except to share profits as compensation for services is not a partner or joint venturer" (Kidz Cloz, Inc. v Officially For Kids, Inc., 320 F Supp 2d 164, 175 [SDNY 2004], quoting Scott v Rosenthal, 2000 WL 1863542 *3 [SDNY 2000], quoting Impastato v DeGirolamo, 117 Misc 2d 786 [Sup Ct, Kings County 1983], aff'd 95 AD2d 845 [2d Dept 1983]), where, as here, the circumstances have not been fully developed, it cannot be said that plaintiff does not have a cause of action for breach of the alleged partnership. The complaint does contain allegations that the relationship between the parties was more than merely profit-sharing.

The complaint alleges that, notwithstanding their separate employment by Caxton (plaintiff's offer being contingent on defendant's employment), plaintiff planned and devised the investment strategy employed together with defendant and each contributed his skill and services. Where, as here, the actual financing was provided by a third party, the contribution of skill and effort may be sufficient "capital" to support a partnership or joint venture. While it is apparent that defendant was deemed the more essential Caxton employee and was in charge of managing the operation as to Caxton, there are sufficient allegations of a partnership giving rise to a fiduciary duty owed to plaintiff based upon a long-standing relationship between the parties, the joint formulation of the North American Credit business, plaintiff's deferral to defendant in dealing with Caxton and his having left his position at Chase in reliance upon defendant's promises.

This is a motion to dismiss and the record is devoid of a responsive pleading or discovery, unlike Kidz Cloz, Inc., upon which defendant relies. As a fiduciary relationship is necessarily fact-specific, and is not dependent on a contractual relationship (see First Keystone Consultants, Inc. v DDR Construction Services, 74 AD3d 1135, 1136 [2d Dept 2010] citing EBC I, Inc., 5 NY3d at 19-20), given the deference to be accorded the allegations of the complaint upon a motion to dismiss, the dismissal of plaintiff's third cause of action is denied.

Plaintiff bases his fourth claim for relief upon a breach of fiduciary duty independent of the alleged partnership. This claim, in the context, is redundant of both the partnership and [*10]the breach of contract causes of action as the breach alleged is the failure to pay the 25 percent share of profits. "A fiduciary relationship whether formal or informal, is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another ... [and] might be found to exist, in appropriate circumstances, between close friends ... or even where confidence is based upon prior business dealings" (AHA Sales, Inc. v Creative Bath Products, Inc., 58 AD3d 6, 21 [2d Dept 2008] [internal quotation marks omitted]). "Such a relationship may exist where one party reposes confidence in another and reasonably relies on the other's superior expertise or knowledge, but an arms-length business relationship does not give rise to a fiduciary obligation" (Faith Assembly v Titledge of NY Abstract LLC, 106 AD3d 47, 62 [2d Dept 2013] [internal quotation marks omitted]). "A fiduciary relationship . . . exists only when a person reposes a high level of confidence and reliance in another, who thereby exercises control and dominance over him [or her]" (People v Coventry First LLC, 13 NY3d 108, 115 [2009] [internal quotation marks and citations omitted]; see also see Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158, 172-173 [1993]). CPLR 3016 (b) requires that a breach of fiduciary duty cause of action must be plead with specificity (Faith Assembly, 106 AD3d at 62).

The profit sharing agreement itself does not give rise to a fiduciary obligation (see Vitale, 307 AD2d at 108-109; see also Eden, 96 AD3d at 615-616; Lawrence v Kennedy, 95 AD3d 955, 958 [2d Dept 2012]; Michnick v Parkell Prods., 215 AD2d 462, 462-463 [2d Dept 2012]). While friendship between the parties may be a factor in determining the existence of a fiduciary relationship, a friendship or social relationship, in and of itself, does not establish a confidential relationship (see Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1286 [3d Dept 2007]). However, plaintiff has pleaded more than that in that, because defendant was in exclusive control of the allocation of the incentive pool, plaintiff was thus dependant upon defendant's good faith performance of his obligations. Whether the prior friendship and business relationship between plaintiff and defendant show the high degree of trust and confidence on the part of plaintiff, or dominance or control on the part of defendant, from which a fiduciary duty may be implied or inferred is a question of fact. However, since the damages alleged under this claim are the same as, and duplicative of, the relief requested in the first and third causes of action, the fourth claim is dismissed.

With respect to plaintiff's Eighth Claim for Relief seeking to impose a constructive trust upon defendant's interest in Lucidus, a necessary element is the presence of a fiduciary or confidential relationship (Refreshment Mgt. Servs. Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913, 915 [2d Dept 2011]; Rocchio v Biondi, 40 AD3d 615, 616 [2d Dept 2007]; Waldman, 92 AD2d at 836). Although, as noted, the allegations are sufficient to support plaintiff's claims of partnership and fiduciary duty, the documentary evidence reveals that plaintiff was actually employed by Lucidus, in addition to Caxton, effective July 1, 2009, though his salary would continue to be paid by Caxton and all other terms and conditions of employment with Caxton would apply to Lucidus. This fact is not addressed in the complaint. Nor are the particular terms of the Agreement, other than the [*11]75/25 profit sharing, pleaded. It cannot, therefore, be determined whether Lucidus formed any aspect of the alleged partnership or contract between the parties. Since, in the absence of any written agreement, an oral partnership is terminable at will, plaintiff's suggestion that defendant was "subject to a legal duty" not to enter into the Lucidus venture, is without foundation. Accordingly, the eighth claim fails to state a cause of action and is dismissed, with leave to replead as to this cause of action.

Plaintiff's seventh cause of action is premised upon promissory estoppel. "To apply the doctrine of promissory estoppel, a plaintiff must demonstrate: (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 in reliance on the promise" (NGR, LLC v General Elec. Co., 24 AD3d 425, 425 [2d Dept 2005]). While plaintiff has essentially pleaded these elements, "the doctrine of promissory estoppel is limited to cases where the promisee suffered an unconscionable injury'" (see AHA Sales, Inc. v Creative Bath Prods, Inc., 58 AD3d at 20-21). Given the very substantial compensation paid to plaintiff, the injury alleged here cannot be said to be unconscionable. Defendant is thus entitled to dismissal of the promissary estoppel cause of action (Seventh Claim for Relief).

Defendant is also entitled to dismissal of plaintiff's cause of action seeking to enjoin defendant from using the trading strategies developed for the North American Credit business to the exclusion of plaintiff based upon the documentary evidence. Defendant has submitted a copy of plaintiff's intellectual property agreement with Caxton that shows that plaintiff assigned to Caxton ownership rights to any such trading strategies. Defendant is therefore entitled to dismissal of the cause of action for such injunction (Ninth Cause of Action).

The complaint contains sufficient allegations of a partnership and the demise of the relationship between the parties. As a partner is entitled to an accounting upon dissolution, the motion to dismiss the tenth cause of action for an accounting is denied (see Partnership Law §74; Kidz CLOZ, Inc., 320 F Supp 2d at 176, holding that, "upon dissolution of a partnership at will, a partner's only remedy is an accounting").

Defendant's motion to dismiss is granted as to the second, and fourth through ninth causes of action and denied to the first, third and tenth causes of action. Plaintiff's application to amend the complaint is denied as plaintiff has failed to provide a proposed amended complaint indicating intended changes or additions [see CPLR 3025(b)], except that leave to replead the eighth cause of action is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.