Defendant Natixis North America LLC (Natixis) moves for summary judgment dismissing the remaining cause of action for breach of contract, pursuant to CPLR 3212.

Plaintiff Brook Payner was a senior real estate securitization executive formerly employed at Natixis, a wholly-owned subsidiary of Natixis, S.A., a French bank from 1998 to 2008.. Natixis is a Delaware limited liability company that provides investment banking services and was formed in 2006 following a merger.

While employed at Natixis, Payner received a fixed annual base salary of $225,000 (Exhibit 28 at ¶ 6, annexed to the Chase Aff.). In addition to his salary, Payner received an annual bonus, typically in the following year, based on performance during the prior year, which was the primary component of his compensation. In 2006, Payner's bonus had a cash component and a deferred component called the Long-term Incentive Performance Unit (LTIP), which vested over a three-year period (Exhibit 30 at 107-110, annexed to the Chase Aff.). A compensation advisory board recommended $8.5 million for Payner's bonus compensation for the 2006 calendar year. Payner was among the highest paid at Natixis (Exhibit 33 at 33-36, annexed to the Chase Aff.).

Payner represents that, following the Natixis merger in 2006, integration of the businesses was slow and difficult, and many employees were concerned that they might lose their jobs and their vested long term incentive compensation. In April 2007, the bonus payment due Payner for 2006 was withheld without [*2]explanation for over six weeks, while the rest of the New York employees were paid their bonus. Payner states that during this period of corporate disarray, he began having serious doubts about his continued service for Natixis.

In June 2007, Payner met with his supervisor, the then CEO of Natixis, Ramine Rouhani, who arranged for another meeting with Dominique Ferrero, the then CEO of Natixis S.A., Lawrence Laier, head of human resources at Natixis, and Francois Casassa, Natixis S.A.'s general secretary, head of human resources and Ferrero's "right hand" (Defendants' Rule 19-A Statement, ¶ 9). Payner sought to resign, and expressed deep concerns about the effect the latest merger was having on his business and compensation (Id., ¶ 11).

Rouhani, Casassa and Ferraro wished to keep Payner with Natixis, and asked Rouhani to discuss with Payner the terms of an arrangement that would incentivize him to remain with the bank (Id., ¶ 12). In order to remain at Natixis, Payner sought guaranteed compensation for 2007 equal to his 2006 compensation, and a guaranteed severance package in the event he elected to resign in the future as a result of the post-merger problems (Exhibit 30 at 445, annexed to the Chase Aff.).

Natixis negotiated and entered into two memoranda on July 25, 2007 memorializing its agreement with Payner. One agreement provided that Payner's 2007 compensation would be commensurate with his 2006 compensation (Compensation Agreement). The second agreement provided for severance to Payner in the event he resigned at any time in 2008 under certain specified conditions (Resignation Agreement, and together with Compensation Agreement, the July 2007 Agreements) (Exhibit 29 at 983-84 annexed to the Chase Aff.).

Following execution of the July 2007 Agreements, Payner testified that he continued to use his best efforts on behalf of Natixis. Nonetheless, he perceived that the management structure and decision-making at Natixis was still plagued with corporate dysfunction following the merger which were undermining his success (Plaintiff's Rule 19-A Statement, ¶¶ 52-69).

On September 25, 2008, Payner's superior, Rouhani, was terminated. On September 30, 2008, Payner gave written 90 day notice of his resignation to Laier, effective as of December 31, 2008 (Defendant's Rule 19-A Statement, ¶ 43).

On November 6, 2008, Natixis management sent a letter to Payner rejecting his resignation and declaring it a "legal nullity" (Exhibit 30 at 201-04, annexed to the Chase Aff.).

Shortly thereafter, Payner sent an email to Natixis management, reaffirming his resignation (Exhibit 27, annexed to the Chase Aff.). On December 15, 2008, Natixis sent Payner a letter purporting to terminate his employment (Defendant's Rule 19-A Statement, ¶ 46; Exhibit 22, annexed to the Chase Aff.).

Natixis did not pay Payner any severance under the Resignation Agreement, or the LTIP amounts that were to vest on [*3]December 31, 2008.

FINRA Arbitration

In August 2009, Payner filed a statement of claim with FINRA commencing an arbitration against Natixis Securities, Natixis and Natixis Capital; Natixis declined to submit to FINRA's jurisdiction.

In June 2011, the FINRA panel issued its award (FINRA Award), and held that Payner was not discharged as Natixis claimed but resigned voluntarily.

AAA Arbitration

In August 2010, Payner commenced an arbitration against Natixis before the American Arbitration Association (AAA) seeking a declaration that he had vested in approximately $3 million he would have received had he been employed until December 31, 2008 under his LTIP compensation awarded for the years 2006 and 2007.

In July 2011, the AAA issued its award with findings (AAA Award) (Exhibit 1, annexed to the Chase Aff.). The panel ruled in favor of Payner:

Payner "gave proper notice of his resignation on September 30, 2008, in accordance with the July 2007 agreement that he reached with his employer; and, rather than negotiate Claimant's departure in good faith as required by that [Resignation Agreement] agreement, respondent [Natixis] fabricated a reason to reject' the resignation in early November 2008. After another 30 days of silence, Respondent purports to terminate Payner's employment approximately two (2) weeks before he is scheduled to vest in an aggregate of approximately $3 million in LTIP payments that he had already earned" (AAA Award at 2, Exhibit 1, annexed to the Chase Aff.).

In the AAA Award, it was determined that Payner was deemed to have been employed at Natixis as of December 31, 2008 for the purposes of vesting in two tranches of LTIP plans with an aggregate value of $3,146,611. The panel did not decide what payments, if any, Payner was entitled to under the Resignation Agreement.

In New York County Supreme Court, Natixis filed a petition to vacate the AAA Award, and Payner cross-moved to confirm. In November 2011, this Court denied Natixis's motion to vacate the AAA Award and granted Payner's cross-motion to confirm. Judgment was thereafter entered on Payner's behalf in January 2012, which Natixis then appealed. The Appellate Division, First Department affirmed this Court's decision (Natixis North America, LLC v Payner, 101 AD3d 509 [1st Dept 2012].

Thereafter, Payner commenced this action against Natixis for breach of contract and the covenant of good faith and fair dealing. Natixis moved to dismiss the cause of action for breach of the covenant of good faith and fair dealing, which this Court granted.

Natixis moves to dismiss the claim for breach of contract on the grounds that the Resignation Agreement is an unenforceable agreement to agree, there was no meeting of the minds on material terms of the agreement, and otherwise, that Rouhani did not have authority to execute the Resignation Agreement on its behalf.

In opposition, Payner argues that Natixis is estopped from arguing that the Resignation Agreement is not a binding and enforceable agreement under the doctrine of collateral estoppel, as the issue of the enforceability of the Resignation Agreement was squarely before the panel in the AAA arbitration, who decided against Natixis. Additionally, Payner contends that the evidentiary record is replete with undisputed facts demonstrating that Rouhani had authority to represent Natixis, Laier drafted the Resignation Agreement with the help of Natixis' outside counsel. Payner also contends that he, Rouhani and Laier all agree on their basic understanding of the provisions of the Resignation Agreement, and the parties treated the Resignation Agreement as a binding legal document and performed accordingly. I. Collateral Estoppel

The doctrine of collateral estoppel does not bar Natixis from arguing that the Term Sheet is unenforceable in this action. Application of the doctrine of collateral estoppel is premised upon an identity of issues necessarily decided in the prior which is decisive of the present action, and determining whether the party who is attempting to relitigate the issue had a full and fair opportunity to contest it in the prior proceeding (Matter of Howard v Stature Elec., Inc., 20 NY3d 522 [2013]).

Before the AAA, Payner sought to recover LTIP monies that would have vested on December 31, 2008 pursuant to LTIP documents. The AAA Award expressly states that, in holding that Payner gave proper notice of his resignation under the Resignation Agreement, the panel was not deciding what payments, if any, Payner may be entitled to under that agreement as this issue was not before panel. In this action, Payner seeks to recover severance compensation due him under the Resignation Agreement (Complaint, ¶¶ 7-8). Thus, collateral estoppel does not bar Natixis from challenging the enforceability of the Resignation Agreement in this action because there is no identity of issues.

II. Enforceability of the Resignation Agreement

The Resignation Agreement states:

"This memorandum governs your resignation from [Natixis] during 2008 in the event that the Company has not been willing or able to be appropriately supportive of the work of your business at the Company. The objective is to define the terms for an amicable departure that protects the interests of both parties....

You will receive severance equal to your average total [*5]compensation (the sum of salary, bonus and long-term incentive face value) paid for the years 2005, 2006, 2007.^[FN2] These payments will be made in two equal installments, the first on or before 90 days after your resignation and the second in 2009 ...

These terms and conditions are subject to the review and approval of Natixis management in Paris and are subject to the execution of appropriate legal documents....

Final agreement is subject to a good faith analysis of regulation 409A.

The parties hereto shall work in good faith and use commercial reasonable efforts to finalize and execute the legal documentation within 30 days of the resignation effective date" (Exhibit 14, annexed to the Salvatore Aff., ¶ 4).

Under basic tenets of contract law, "[t]o establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound" (Kasowitz, Benson, Torres & Friedman, LLP v Duane Reade, 98 AD3d 403, 404 [1st Dept 2012], affirmed 20 NY3d 1082 [2013]). The issue of whether a contract exists is generally one of law which may be properly determined on a motion for summary judgment (Central Federal Sav., F.S.B. v National Westminster Bank, U.S.A., 176 AD2d 131, 131 [1st Dept 1991]).

A contract is unenforceable when, as to some essential term, there has been no agreement but only an agreement to agree in the future, and in such cases the legal effect is the same as if the parties had left blanks in the writing, to be filled in later when their minds should meet (May Metro. v May Oil Burner Corp., 290 NY 260 [1943] Aiello v Burns Intl. Security Services Corp., 110 AD3d 234, 243 [1st Dept 2013]). If a contract contains, as to some essential term, an "agreement to agree" and it fairly appears that what the parties intended was that the contract should be binding only if the parties did thereafter in fact arrive at a mutually satisfactory agreement as to that term, until they arrive at that point, there is no "contract" (Id.).

Nonetheless, a contract is not necessarily lacking in effect merely because it expresses the idea that something is left to future agreement (Id.). "Striking down a contract as indefinite and in essence meaningless is at best a last resort'" (166 Mamaroneck Ave. Corp. v 151 E. Post Road Corp., 78 NY2d 88, 91 [1991]). [*6]

With these principles in mind, this Court rejects Natixis's contention that the Resignation Agreement was merely an agreement to agree because certain terms were left for future negotiation, or because it states that the parties would execute a final agreement within 30 days of Payner's resignation. The Resignation Agreement between Payner and Natixis is a binding and enforceable agreement, and not merely an agreement to agree. The agreement's plain language is sufficiently definite to establish the parties' intent to be bound and the nature of the parties' bargain establishing Payner's right to receive severance equal to his average compensation paid for the years 2005 through 2007, in the event he elected to resign because Natixis was not "appropriately supportive" of his work at Natixis (see Trolman v Trolman, Glaser & Lichtman, P.C., 114 AD3d 617 [1st Dept 2014]).

Natixis maintains that the Resignation Agreement's provisions would be binding if and only if counsel drafted final documentation, which was then to be reviewed by senior management in Paris, and claims that management, in-house or outside counsel never reviewed or approved the Resignation Agreement or any other legal documents after the Resignation Agreement was signed by Payner and Rouhani on Natixis's behalf (Defendant's Rule 19-A Statement, ¶¶ 22, 25).

However, Rouhani testified that all the necessary approvals had been obtained from Natixis's management in connection with the July 2007 Agreements, of which the Resignation Agreement was one component (Rouhani Dep Tr 123-24, 133, Exhibits 32, 44, annexed to the Salvatore Aff.). The July 2007 Agreements were drafted by Laier, head of Natixis's Human Resource department, with the assistance of Natixis's outside counsel, Davis & Gilbert (Laier Dep 983-84 before FINRA Arbitration, Exhibit 29, annexed to the Chase Aff.). Copies of the executed Resignation Agreement were forwarded to Casassa. In addition, the executed Resignation Agreement was forwarded to Phillipe Roussel, compensation human resources officer, N. Garcia Calle, who are both at Natixis S.A.'s human resources department in Paris, and Olivier Schatz, one of the co-heads of Natixis's Corporate and Investment Bank Group (Exhibits 8, 33, Casassa Dep Tr 143, annexed to the Chase Aff.).

When presented with the July 2007 Agreeemnts, Schatz wrote to Rouhani:

"You discussed all of this with Brook [Payner], and I trust your judgment. So I agree with your suggestions , which seem reasonable to me, subject, of course, to F. Casassa's approval (given the amounts involved)" (Exhibit 6 at 1850, annexed to the Chase Aff.).

Casassa, head of Natixis S.A.'s human resources department, reviewed the unexecuted draft of the July 2007 Agreements, and transmitted his approval by email to Rouhani (Casassa Dep Tr 64-[*7]65, Exhibits 6-7, 33, annexed to the Chase Aff.): "It's ok for me. You can go ahead ... on the basis of the term sheet you sent me" (Exhibit 6 at 1856, annexed to the Chase Aff.).

Moreover, Payner points out that Natixis honored its obligations under the Compensation Agreement, which was one component of the July 2007 Agreements, for work performed in 2007 (Plaintiff's Rule 19-A Statement, ¶ 51). Both the Compensation and Resignation Agreements were negotiated and executed at the same time. Meanwhile, following execution of the July 2007 Agreements, Payner continued in Natixis's employ, which he attests he would not have done in the absence of a binding agreement as to guaranteed severance (Exhibit 33 at 95-96, annexed to the Chase Aff.).

The evidentiary record contains ample evidence that senior management in Paris reviewed and approved the Resignation Agreement, and Natixis fails to demonstrate that issues of fact remain that the necessary approvals had not, in fact, been obtained.

Contrary to Natixis's contention, the provision requiring the parties to reduce the agreement to a final writing does not destroy the definiteness of the Resignation Agreement (see Aiello, 110 AD3d at 243). The plain language of the Resignation Agreement provides that the obligation to reduce the agreement to a final document is triggered only upon Payner's resignation, and thereafter, bound the parties to negotiate a final agreement in good faith.^[FN3] At the time the parties negotiated the July 2007 Agreements, Natixis provided Payner with a form of Resignation Acceptance Memorandum and General Release Agreement, which was to be finalized if and when he resigned (Exhibits 4, 31, Payner Dep Tr at 342-45, annexed to the Chase Aff.).

The record also contradicts Natixis's contention that Rouhani, the then CEO of Natixis U.S., lacked authority to enter into the July 2007 Agreements Natixis's behalf (see Casassa Dep Tr 89, Exhibit 33, annexed to the Chase Aff.).

Finally, the absence of a contractual definition of "appropriately supportive" does not destroy the definiteness of [*8]the Resignation Agreement (see Aiello, 110 AD3d at 243). This term can be "rendered reasonably certain by reference to an extrinsic standard that makes its meaning clear" (Chapman, Spira & Carson, LLC v Helix BioPhrama Corp., 115 AD3d 526 [1st Dept 2014]), including the parties' course of conduct (Aiello, 110 AD3d at 244).

Where a term is ambiguous, vague or undefined, "courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject matter of the instrument (Korf v Corbett, 18 AD3d 248, 251 [1st Dept 2005] see also Nina Penina, Inc. v I.O. Njoku, 30 AD3d 193 [1st Dept 2006]).

For instance, in Taussig v Clipper Group, L.P. (16 AD3d 224 [1st Dept 2005]), the First Department held that the agreement should not be dismissed as indefinite merely because of its undefined terms, which were determinable by reference to clear objective standards, including those catalogued in the deposition testimony of defendant's president.

Here, Payner maintains that only three people discussed the meaning of the term "appropriately supportive": Payner, Rouhani, and Laier, who all testified as to the intent of the parties and the meaning of the term (see Exhibits 18, 32 at 108-09, 129-31). There also exists contemporaneous memoranda and communications in the record pertaining to the meaning of the term (Exhibits 6, 18, 21, annexed to the Chase Aff.).

For all these reasons, Natixis has failed to demonstrate that the Resignation Agreement is an unenforceable agreement to agree as a matter of law. At the trial of this matter, the Court must examine extrinsic evidence in order to clear up any ambiguities as to the meaning "appropriately supportive" (Nina Penina, Inc., 30 AD3d 193; Korf, 18 AD3d at 251), and determine if the trigger for Payner's severance obligations, in fact, occurred.

Accordingly, it is hereby

ORDERED that defendant Natixis North America LLC's motion for summary judgment is denied; and it is further

ORDERED that the plaintiff shall serve a copy of this order with notice of entry within twenty (20) days of receipt, whereupon the parties are directed to contact the Part Clerk to schedule a pre-trial conference in this matter.

Dated: May 12, 2014

ENTER:

________________

J.S.C.