Don Peebles / The Peebles Corporation / 652178 2021 The Peebles Corporation V The Peebles Corporation EXHIBIT S 53

FILED: NEW YORK COUNTY CLERK 04/27/2021
03/12/2015 04:48
04:14 PM INDEX NO. 652178/2021
653998/2014
NYSCEF DOC. NO. 53
14 RECEIVED NYSCEF: 04/27/2021
03/12/2015
FILED: NEW YORK COUNTY CLERK 04/27/2021 04:48 PM INDEX NO. 652178/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 04/27/2021
04/07/2015 04:48
10:20 PM
AM INDEX NO. 652178/2021
653998/2014
NYSCEF DOC. NO. 53
04/07/2015
02/17/2015 04:48
04:26 PM INDEX NO. 652178/2021
653998/2014
NYSCEF DOC. NO. 53
02/17/2015
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
DANIEL NEWHOUSE,
Plaintiff,
ORAL ARGUMENT REQUESTED
- against — Index No. 653998/2014
THE PEEBLES CORPORATION and

R. DONAHUE PEEBLES,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS'

MOTION TO DISMISS THE COMPLAINT
KL3 3003178.8
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT 1
FACTUAL BACKGROUND 2
ARGUMENT 7
I. Legal Standards 7
Plaintiff s Breach of Contract Claim Fails 7

A. The Alleged Oral Agreement is Barred by the Statute of Frauds 8
B. There Was No Meeting Of the Minds and, Therefore, No Contract 9
C. Defendants Did Not Breach the Alleged Oral Agreement 11
D. Peebles Cannot Be Held Personally Liable for Breach of Contract 13
III. Plaintiff s Implied and Quasi Contract Claims Also Fail 14

A. Plaintiff s Implied Contract Claim Must Fail 14
B. Plaintiff Has Not Adequately Alleged a Breach of the
Implied Covenant of Good Faith and Fair Dealing 15
C. Plaintiff Cannot Sustain His Claims Pleaded Under Theories of
Quantum Meruit, Unjust Enrichment and Promissory Estoppel 17
1. Plaintiff Does Not Properly Allege a ClaiM for Quantum Meruit 18
2. Plaintiff s Unjust Enrichment Claim Fails 19
3. Plaintiff s Promissory Estoppel Claim Also Fails 20
D. Peebles Cannot Be Personally Liable for Plaintiff s
Alleged Implied or Quasi Contract Claims 22
IV. Plaintiff s Labor Law Claim Should Be Dismissed 23
V. Because Plaintiff Fails to Adequately Allege the Existence

of a Fiduciary Relationship, His Claim for Breach of Fiduciary Duty Fails 24
CONCLUSION 25
KL3 3003178.8
TABLE OF AUTHORITIES
Page(s)
Cases
A&S Welding & Boiler Repair, Inc. v. Siegel,

93 A.D.2d 712, 460 N.Y.S.2d 582 (1st Dcp't 1983) 15
Aksman v. Xiongwei Ju,

21 A.D.3d 260, 799 N.Y.S.2d 493 (1st Dep't 2005) 10
Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce,

70 A.D.3d 423, 894 N.Y.S.2d 47 (1st Dep't 2010) 10, 17
American-European Art Assocs. v. Trend Galleries, Inc.,

227 A.D.2d 170, 641 N.Y.S.2d 835 (1st Dep't 1996) 16
I3atas v. Prudential Ins. Co. of Am.,

281 A.D.2d 260, 724 N.Y.S.2d 3 (1st Dep't 2001) 24
Bernstein v. Felske,
143 A.D.2d 863, 533 N.Y.S.2d 538 (2d Dep't 1988) 16
Corsello v. Verizon N.Y, Inc.,

18 N.Y.3d 777 (2012) 17, 19,20
Cunnison v. Richardson Greenshields Sec., Inc.,

107 A.D.2d 50, 485 N.Y.S.2d 272 (1985) 22
Eden v. St. Luke's-Roosevelt Hosp. Cir.,

96 A.1).3d 614, 947 N.Y.S.2d 457 (1st Dep't 2012) 25
Freedman v. Pearlman,
271 A.D.2d 301, 706 N.Y.S.2d 405 (1st Dep't 2000) 18, 19
Georgia Malone & Co. v. Rieder,

86 A.D.3d 406, 926 N.Y.S.2d 494 (1st Dep't 20] 1) 13, 18
Ginsberg y Fahlield-Noble Corp.,

81 A.D.2d 318, 440 N.Y.S.2d 222 (1st Dep't 1981) 21
Gottlieb v. Kenneth D. Laub & Co.,

82 N.Y.2d 457 (1993) 23, 24
Jalk. v Paramount Commc'ns Inc.,

222 A.D.2d 17, 644 N.Y.S.2d 43 (1st Dep't 1996) 16
ii
KL3 3003178.8
Joan Hansen & Co. v. Everlast World's Boxing Headquarters Corp.,

296 A.D.2d 103, 744 N.Y.S.2d 384 (1st Dep't 2002) 13
Kaplan v. Capital Co. of Am.,

298 A.D.2d 110, 747 N.Y.S.2d 504 (1st De .p't 2002) 19
La Barca v. Altenkirch,
193 A.D.2d 586, 597 N.Y.S.2d 158 (2d Dep't 1993) 9
Leder v. Spiegel,
31 A.D.3d 266, 819 N.Y.S.2c126 (1st Dep't 2006) 7
Logan Advisors, LLC v. Patriarch Partners, LLC,

63 A.D.3d 440, 879 N.Y.S.2d 463 (1st Dep't 2009) 17
Maas v. Cornell Univ.,

94 N.Y.2d 87 (1999) 14
Mary Matthews Interiors v. Levis,

208 A.D.2d 504, 617 N.Y.S.2d 39 (2d Dep't 1994) 18
Mode Contempo, Inc. v Raymours Furniture Co.,

80 A.D.3d 464, 915 N.Y.S.2d 528 (1st Dep't 2011) 17
Oladokun v. Ryan,
No. 06 cv 2330 (KMW), 2011 WL 4471882 (S.D.N.Y. Sept. 27, 2011) 23
Ovitz v. Bloomberg L.P.,

18 N.Y.3d 753 (2012) 7
Parsa v. State,
64 N.Y.2d 143, 485 N.Y.S.2d 27 (1984) 14
Peter Lampack Agency, Inc. v Grimes,

93 A.D.3d 430, 939 N.Y.S.2d 409 (1st Dep't 2012) 15
Pritsker v. Kazan,
132 A.D.2d 507, 518 N.Y.S.2d 143 (1st Dep't 1987) 8
Rogowsky v. McGarry,
55 A.D.3d 815, 865 N.Y.S.2d 670 (2d Dep't 2008) 18
Rosenberg v. Home Box Office, Inc.,

33 A.D.3d 550, 822 N.Y.S.2d 921 (1st Dep't 2006) 22
Rosenberg v. Home Box Office, Inc.,

No. 0601924/2005, 2006 WL 5436822 (Sup. Ct. N.Y. Cnty. Jan. 30, 2006) 2 n.1
KL3 3003178.8
Scheer v. Kahn,
221 A.D.2d 515, 634 N.Y.S.2d 148 (2d Dep't 1995) 24
Schully v. Speiser Krause P.C.,

86 A.D. 3d 484, 928 N.Y.S.2d 4 (1st Dep't 2011) 10,20
Tierney v. Capricorn Investors, L.P.,

189 A.D.2d 629, 592 N.Y.S.2d 700 (1st Dep't 1993) 11 21
Tribune Printing Co. v. 263 Ninth Ave Realty, Inc.,

88 A.D.2d 877, 452 N.Y.S.2d 590 (1st Dep't 1982) 10 20
Tsabbar v. Auld,
289 A.D.2d 115, 735 N.Y.S.2d 31 (1st Dep't 2001) 21
Ullmann v. Norma Karnali,

207 A.D.2d 691, 616 N.Y.S.2d 583 (1st Dep't 1994) 2 n.1
US Bank NA. v. Lieberman,

98 A.D.3d 422, 950 N.Y.S.2d 127 (1st Dep't 2012) 7
Valentino v. Davis,
270 A.D.2d 635, 703 N.Y.S.2d 609 (3d Del-A 2000) 14
Vitale v. Steinberg,
307 A.D.2d 107, 764 N.Y.S.2d 236 (1st Dep't 2003) 20, 24
Waldman v. Englishtown Sportswear, Ltd,

92 A.D.2d 833, 460 N.Y.S.2d 552 (1st Dep't 1983) 22
Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon,

172 A.D.2d 254, 568 N.Y.S.2d 84 (1st Dep't 1991) 24
Zimmer v. Town of Brookhaven,

247 A.D.2d 109, 678 N.Y.S.2d 377 (2d Dep't 1998) 15
Zolotar v. New York Life Ins. Co.,

172 A.D.2d 27, 576 N.Y.S.2d 850 (1st Dep't 1991) 20
Statutes
N.Y. C.P.L.R. 3211 1, 2, 7, 8, 25
N.Y. Labor Law § 198 2, 23, 24
N.Y. Gen. Oblig. Law § 5-703(1) 8
iv
KL3 3003178.8
Defendants The Peebles Corporation ("TPC") and R. Donahue Peebles ("Peebles"
and, together with TPC, "Defendants") respectfully submit this memorandum in support of their
motion, pursuant to CPLR 3211(a)(1), 3211(a)(5), and 3211(a)(7), to dismiss the Complaint of
Plaintiff Daniel Newhouse ("Plaintiff' or "Newhouse") dated December 29, 2014 ("Complaint").
PRELIMINARY STATEMENT
Plaintiff seeks to transform a series of communications in which he and Peebles,
acting on behalf of TPC, discussed possible terms of an incentive compensation arrangement into
an enforceable contract which he claims entitles him to "5% of Defendants' interest" in a
development project to occur at 346 Broadway in Manhattan. But the facts alleged in the
Complaint confirm that no contract ever was concluded. Though proposals were exchanged and
refined, Plaintiff concedes that the parties always planned to enter into a written agreement that
would be fully integrated and include other terms not yet negotiated. There was never a meeting
of the minds sufficient to support the creation of a contract, and thus Plaintiff s claims must fail.
Moreover, Plaintiff s claim to a percentage of Defendants' interest in 346
Broadway is barred by the Statute of Frauds, which requires that transfers of interest in real
estate be made in writing — and no such writing exists. Further, Plaintiff s supposed interest was
to be attached to any "promote" earned by Defendants, but there is no "promote" with respect to
this property, and accordingly nothing due to Plaintiff. And, in any event, Plaintiff never
satisfied the conditions necessary to receive any portion of such promote, as he was not
employed by TPC on the date any construction loan closed or the project was completed.
Plaintiff thus resorts to the usual kitchen sink of quasi-contractual claims — unjust
enrichment, quantum meruit, and promissory estoppel — as well as claims for breach of an
implied contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary
duty, in an effort to find some theory upon which this case might survive dismissal pursuant to
KI-3 3003178.8
CPLR 3211. Nonetheless, each of these claims is fatally deficient. Finally, he adds a claim
under Section 198 of the Labor Law that fails because he does not allege a substantive violation
of the Labor Law and thus cannot satisfy a mandatory prerequisite to any such claim.
Plaintiff s 108-paragraph Complaint is devoid of any viable legal theories of
recovery based upon the facts he alleges. As such, the Complaint should be dismissed in its
entirety, with prejudice.
FACTUAL BACKGROUND'
TPC is engaged in real estate investment and development throughout the United
States. Peebles is the sole shareholder of TPC and serves as its Chairman and Chief Executive
Officer ("CEO"). (Ex. A, Complaint 'If 15, 17).
On or about May 31, 2011, TPC offered Plaintiff a role as a Senior Associate for
Development and Investments. (Complaint II 17; Ex. B, Plaintiff s Employment Agreement,
dated May 31, 2011). Pursuant to his Employment Agreement, Plaintiff was provided an annual
salary of $72,000 and was "eligible for a year-end discretionary performance bonus." (Ex. B at 1
(emphasis in original)). Plaintiff countersigned the Employment Agreement on May 31, 2011.
(Id. at 2).
During the interview process, Peebles allegedly told Plaintiff that "he anticipated
that Plaintiff would assume a key role in his organization" and "there would be partnership
opportunities for someone who could complete the deals generated by Peebles." (Complaint
Solely for purposes of this motion, Defendants do not dispute the allegations pled in and as part
of the Complaint. The factual background set forth above is based on the Complaint and the
documents incorporated by reference therein, which are attached as exhibits to the affirmation of
Robert N. Holtzman, Esq. dated February 17, 2015. See Rosenberg v. Home Box Wee, Inc.,
No. 0601924/2005, 2006 WL 5436822, at *6 (Sup. Ct. N.Y. Cnty. Ian. 30, 2006) ("[W]hen
deciding a motion to dismiss under CPLR 3211 (a) (7), the court may consider documents
referenced in or attached to the complaint") (citation omitted); Ullmann v. Norma Kamali,
207 A.D.2d 691, 692, 616 N.Y.S.2d 583, 583-84 (lst Depit 1994) (considering employment
application submitted by defendant on motion to dismiss pursuant to CPLR 3211 (a)(7)).
2
KL3 3003178.8
(ft 18). Plaintiff claims that Peebles "practically echoed" portions of Peebles' memoir concerning
his philosophy that people that work with him "can make much more" than their salaries and his
"goal is to make sure that all of our employees are exposed to great opportunities and that all of
our key executives can become multimillionaires." (Id. at 1119). Peebles supposedly stated that
they "would agree to additional and much more meaningful compensation arrangements" and
this statement was "integral to Newhouse's decision to work with Peebles." (Id. at II 20).
Plaintiff and Peebles agreed that "if the relationship developedftivorably" they would enter into
"a more complete understanding as the opportunities and economics defined themselves." (Id. at
!( 21 (emphasis added)).
Throughout Plaintiff s employment, he provided advice, hired and managed
employees, signed agreements, worked with TPC's lawyers, and attended "important meetings,"
all on behalf of TPC. (Id. atli 3)
In September 2011, Peebles informed Plaintiff that he was being promoted to
Director of Development and Investments. (Id. at If 23). During the same conversation, Peebles
asked Plaintiff to relocate to New York to work on development opportunities. (Id.). Peebles
promised Plaintiff, "when the projects matured sufficiently, development and confirmation of
Newhouse's interests in the projects." (Id. (emphasis added)). Upon Plaintiff s relocation to
New York, his salary was increased to $115,000 — an increase of more than 35%. (Id. at !I 24).
In New York, Plaintiff focused on Requests for Proposals ("RFPs") solicited by
the City of New York for the development of several properties. (Id. at 11126-28). Included in
these "Civic Center" properties was 346 Broadway. (Id. at 'II 26). Plaintiff claims that, from
January to May 2012, he asked Peebles to fulfill his promise "to formulate and then memorialize
Newhouse's interest in Defendants' projects." (Id. at !I 29). Peebles asked Plaintiff to submit a
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KL3 3003178,8
proposal, and on june 23, 2012, Plaintiff did so. (id at ¶ 29-30). In addition to other items,
Plaintiff requested:
• a salary increase to $150,000;
• half a percentage of purchase price for each winning civic center property and
one percent ownership interest in each winning property.
(Id. at ¶ 30; Ex C, at 2, E-mail Correspondence between Plaintiff and Peebles, dated June 23,
2012 and June 27, 2012).
Peebles responded via e-mail on June 27, 2012 and wrote, "I do have issues with
the concept and fee proposals," adding that Plaintiff s proposals "do not adequately align our
interests." (Complaint 1i( 31, Ex. C, at 1). Among other potential terms, Peebles discussed
"some of my initial thoughts" and in relevant part, wrote:
We are comfortable with an ownership interest of 5% of our

promote interest for deals that you are not the procuring cause. . . .
For deals in which you are the procuring cause you would receive
10% of our promote interest . . . 50% of the ownership interest
would vest at construction loan closing and the balance upon
completion of the project. You would need to be employed by
TPC [at the] time of each milestone in order to receive the
applicable ownership interest.
(Id.). Peebles declined Plaintiff s request for a salary increase, given that his salary had
increased only seven months earlier. (Id.).
Plaintiff alleges that at the time Peebles "anticipated employing the 'promote'
structure to acquire and develop the 'Civic Center' properties." (Complaint ¶33). In a promote
structure, TPC would "partner with a funding, or equity partner, to obtain most of the capital
necessary to acquire the property." (Id.). The agreement with the equity partner provides for "an
ownership split favoring the more substantial equity partner until that equity investor's capital
investment is repaid" and a "preferred rate" that provides a "return on capital." (Id.) After the
investments are repaid and the preferred rate is paid, the structure changes and TPC receives a
4
KL3 3003178.8
more favorable percentage of ownership. (Id.). This percentage change is considered TPC's
"promote interest." (Id.). Plaintiff acknowledges that neither he nor Peebles knew whether the
Civic Center properties would utilize a promote structure. (Complaint IT 34).
Plaintiff alleges that he and Peebles met on June 29, 2012 "agreed that Newhouse
would receive 5% of Defendants' interest" and that Peebles would generate a "fully integrated
compensation agreement." (Complaint If 35). In the fall of 2012, Plaintiff s salary was increased
to $150,000 — an increase of almost 25% within one year. (Id).
Beginning in early 2012 and through 2013, Plaintiff worked on the acquisition
and development of 346 Broadway, one of the Civic Center properties. (Id. at III 40-41). On
February 25, 2013, Civic Center Community Group Broadway LLC ("CCGB") entered into a
purchase agreement with the City of New York, "without an equity partner." (Id. at If 42-43).
Thereafter, Peebles and Plaintiff sought to identify other entities interested in developing 346
Broadway. (Id at ¶ 43).
Civic Center Community Group Broadway Mezzanine LLC ("CCGB II")
allegedly entered into a preliminary agreement with an entity representing the Elad Group
("Elad") to establish a joint venture. (Id. at ¶ 47). The terms of this joint venture would
allegedly involve CCGB II (i) receiving a credit of $60 million, (ii) receiving reimbursement of
its initial capital investment and expenses, and (iii) the ability for CCGB II to reinvest $33
million (of the $60 million credit) into the joint venture to acquire a 35% interest in it. (Id.).
Plaintiff claims, incorrectly, that he was entitled to 5% of the $60 million credit and the
opportunity to reinvest in Defendants' ownership interest in the joint venture. (Id. at'll'1148-49).
On October 17, 2013, Peebles allegedly asked Plaintiff "what he wanted as
compensation for 346 Broadway." (Id. at If 50). Plaintiff stated that he wanted "the 5% that he
5
KL3 3003 78.8
was promised." (Id.). Peebles allegedly agreed that Newhouse earned the 5%, but indicated that
such a percentage would "likely net Newhouse $5-7 million, an amount Peebles considered a
windfall." (Id.). During conversations soon after, Plaintiff "offered to make some minor
concessions in writing and orally if Peebles would cause his lawyers to generate a fully •
integrated compensation agreement promptly." (Id. at1151). On October 21, 2013, Peebles
allegedly told Plaintiff "that his concessions made the 5% deal acceptable" and that one of TPC's
attorneys would provide a formal agreement. (Id. at1152).
The closing of the 346 Broadway transaction occurred on December 11, 2013 and
the joint venture agreement went into effect on January 2, 2014. (Id. at ¶ 5, 53). Plaintiff
allegedly "continuously followed up" from October through December 2013 regarding the
requested compensation agreement. (Id. at 1152).
On January 9, 2014, Peebles sent Plaintiff a draft Agreement (the "Proposed
Agreement"). (Id. at If 55; Ex. D, E-mail from Peebles to Plaintiff, attaching a draft agreement,
dated January 9, 2014). As to the bonus lanatage related to 346 Broadway, the Proposed
Agreement provided that Plaintiff would be eligible for:
a bonus of Three Hundred Thousand ($300,000) Dollars plus 1%

of TPC's Net Profits of up to $100 million and 1.5% of TPC's Net
Profits in excess of $100 million. Further in the event TPC
receives its Hotel Holdback payment, NEWHOUSE will be
eligible for an additional bonus of One Hundred and Fifty
Thousand ($150,000) Dollars. . . . Finally, if there is a Developer's
Fee then Newhouse will be eligible up to a maximum of 5% of the
Developer's Fee as defined herein.
(Ex. D, at 1-2). The Proposed Agreement indicated that such payments were within TPC's
discretion and would only be made after TPC received all of its fees and the net profits were
reconciled and calculated. (Id. at 1, 3). However, "[alt the request of NEWHOUSE" TPC
agreed to advance Plaintiff $300,000 against the anticipated bonus for 346 Broadway. (Id. at 3).
6
KI,3 3003178 8
Plaintiff and TPC were unable to come to agreement regarding the proposed
compensation arrangements. (Complaint '1156-58). Ultimately, TPC terminated Plaintiff s
employment on January 21, 2014. (Id. at If 59),
ARGUMENT
I. Legal Standards
Courts afford plaintiffs favorable inferences when determining the existence of a
cognizable legal theory under Rule 3211 of the CPLR. See Ovilz v. Bloomberg L.P., 18 N.Y.3d
753, 758 (2012). However, it is also "axiomatic that factual allegations which fail to state a
viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or
unequivocally contradicted by documentary evidence, are not entitled to such consideration."
Leder v. Spiegel, 31 A.D.3d 266, 267, 819 N.Y.S.2d 26, 27 (1st Dep't 2006). Plaintiff s eight
causes of action fail to state any legal theories that may survive Defendants' motion to dismiss.
Plaintiff's Breach of Contract Claim Fails
To recover on his claim of breach of contract, Plaintiff must plead (i) a contract
existed, (ii) Plaintiff s performance under the contract, (iii) Defendants' breach of the contract,
and (iv) resulting damages. See US Bank N.A. v. Lieberman, 98 A.D.3d 422, 423, 950 N.Y.S.2d
127, 128-29 (1st Dep't 2012). Here, Plaintiff fails to sufficiently allege a claim for breach of
contract in his first cause of action for a multitude of reasons: (i) the alleged agreement to
convey an interest in real property is barred by the Statute of Frauds; (ii) he alleges a classic
agreement to agree in the future, and does not sufficiently allege that a meeting of the minds ever
was achieved; (iii) the language of Plaintiff s Employment Agreement is clear that bonuses are
discretionary; and (iv) even if an oral agreement was permissible and occurred, Defendants did
not breach the oral agreement. Additionally, Peebles cannot be held personally liable for an
alleged breach of contract by TPC.
7
KL3 3003178.8
A. The Alleged Oral Agreement is Barred by the Statute of Frauds
The supposed oral agreement to provide Plaintiff a percentage of Defendants'
interest in acquired properties is barred by the Statute of Frauds and thus must be dismissed
pursuant to CPLR 3211(a)(5).
Plaintiff asserts that TPC orally agreed "to pay Plaintiff 5% of Defendants'
interest in 346 Broadway" — that is, that the alleged agreement awarded to Plaintiff a 5% interest
in real property. (Complaintil 35, 62). Yet, under New York General Obligations Law § 5-
703(1):
An . . . interest in real property . . . cannot be created, granted,

assigned, surrendered or declared, unless by act or operation of
law, or by a deed or conveyance in writing, subscribed by the
person creating, granting assigning, surrendering or declaring the
same, or by his lawful agent, thereunto authorized by writing.
Gen. Oblig. Law § 5-703(1). Defendants' interest in 346 Broadway — a property purchased for
the purposes of development — constitutes an "interest in real property." See Prnsker v. Kazan,
132 A.D.2d 507, 507, 518 N.Y.S.2d 143, 144 (1st Dep't 1987) (holding that a stock interest
constitutes an interest in real property when the only asset is realty).
Peebles' June 27, 2012 e-mail does not satisfy the writing required by the Statute
of Frauds, as it is clear by Peebles' language that he had no intention of binding TPC to the terms
of the e-mail. Indeed, he described it as "some of my initial thoughts" — clearly implying that
additional considerations might be raised in the future and that the e-mail was merely a starting
point for negotiations. (Ex. C, at 1). Because Plaintiff concedes that the parties never entered
into a "fully integrated compensation agreement," the supposed oral agreement conveying
Defendants' interest in 346 Broadway is barred by the Statute of Frauds.
Finally, it is immaterial that Peebles allegedly promised to generate a formal
writing and failed to do so. (Complaint ¶ 62). An agreement to agree is unenforceable under the
8
K1,3 3003178.8
Statute of Frauds. See La Barca v. Ahenkirch, 193 A.D.2d 586, 586, 597 N.Y.S.2d 158, 159 (2d
Dep't 1993) (rejecting contract claim based on mere negotiations where the parties intended to
enter into a "more complete and formal contract").
B. There Was No Meeting of the Minds and, Therefore, No Contract
Even if Plaintiff s breach of contract claim is not barred by the Statute of Frauds,
it still cannot survive a motion to dismiss. Plaintiff alleges that Defendants breached agreements
to (i) grant Plaintiff 5% of Defendants' interest in 346 Broadway and (ii) generate a formal
writing. (Complaint !I 62). However, Plaintiff s allegations and legal precedent demonstrate that
he has no claim for breach of contract.
The discussion upon which Plaintiff relies for his claim to an interest in 346
Broadway occurred in June 2012. (Id. at III 29-31). Plaintiff requested an increased salary and
half a percentage of the purchase price for each winning Civic Center property, of which 346
Broadway would qualify, and 1% of the ownership interest in each property. (Id. at If 30, Ex. C,
at 2). He concedes that Peebles rejected his request and e-mailed "initial thoughts" in response.
(Complaint ¶ 31, Ex. C, at 1). In relevant part, Peebles offered a counterproposal indicating that
TPC would be "comfortable" with offering Plaintiff 5% of TPC's "promote interest." (Ex. C, at
1). Plaintiff alleges that he spoke with Peebles and they agreed that Plaintiff "would receive 5%
of Defendants' interest" and Peebles would generate "a fully integrated compensation
agreement." (Complaint !I 35). But nowhere does Plaintiff allege that he and Peebles agreed
regarding what constitutes "Defendants' interest" or the remaining terms addressed in Peebles'
June 27, 2012 e-mail. Indeed, he concedes that for more than one year following such e-mail
they continued to discuss additional compensation relating to 346 Broadway, including new
concessions made by Plaintiff, and the creation of a "fully integrated compensation agreement."
9
KL3 3003178.8
(Id. at IfIf 50, 52, 59). The parties would not need a "fully integrated compensation agreement" if
their oral agreement contained all the essential terms of their agreement.
Plaintiff s allegations amount, at best, to a mere agreement to agree at a later time
— an agreement that as a matter of law cannot form the basis for a claim of breach of contract.
"Generally, where the parties anticipate that a signed writing is required, there is no contract
until one is delivered." Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70
A.D.3d 423, 426, 894 N.Y.S.2d 47, 50 (1st Dep't 2010) (finding that even where the parties
executed a written summary of terms and conditions, they were not bound by the agreement
because they contemplated a future finalized agreement). See also Aksman v. Xiongwei Ju, 21
A.D.3d 260, 261-62, 799 N.Y.S.2d 493, 495 (1st Dep't 2005) (reversing lower court decision
and dismissing breach of contract claim because parties only agreed to agree). In a case
presenting similar facts to those alleged here, the First Department dismissed a claim by an
employee that he was orally promised a percentage of fees earned on work he performed. See
Schutt)) v. Speiser Krause P.C., 86 A.D. 3d 484, 485, 928 N.Y.S.2d 4, 6 (1st Dep't 2011). The
court found that the parties were unsuccessful in negotiating the terms of the employment
contract, and the fact that the parties' correspondence contemplated the creation of a new
employment contract established that (i) there was no intent to be bound until there was a signed
written contract and (ii) there was no meeting of the minds on all material terms of the
agreement. See id Throughout the Complaint, Plaintiff repeatedly states that the parties
intended to enter into a "fully integrated compensation agreement." (Complaint'r 2, 35, 51, 54,
65) "[D]efiniteness as to material matters is of the very essence in contract law. Impenetrable
vagueness and uncertainty will not do." Tribune Printing Co. v. 263 Ninth Ave Realty, Inc., 88
A.D.2d 877, 879, 452 N.Y.S.2d 590, 593 (1st Dep't 1982).
10
KL3 3003178.8
Furthermore, Plaintiff fails to allege consideration on his part. He merely alleges
that he "performed all of his obligations pursuant to his duties" (Complaint !I 64), but Plaintiff
was already obliged to perform those duties pursuant to his employment with TPC and he makes
no distinction as to what he was obligated to do differently in connection with the alleged oral
agreement. (Ex. B at 1). Indeed, Plaintiff concedes that when he took on the new role in New
York, the parties had not even discussed the terms of any such arrangement — he first did so on
June 23, 2012, at least seven months later. (Complaint !I 23, 29-30). "Neither a promise to do
that which the promisor is already bound to do, nor the performance of an existing legal
obligation constitutes valid consideration." Tierney v. Capricorn Investors, L.P., 189 A.D.2d
629, 631, 592 N.Y.S.2d 700, 703 (1st Dep't 1993) (affirming motion to dismiss a contract claim
where plaintiff failed to allege consideration because he was continuing to perform the same
duties for his employer).
The parties simply never reached agreement regarding the terms of any additional
compensation that might become payable to Newhouse. ,As such, no contract ever existed, and
Plaintiff s claim for breach of contract must therefore be dismissed.
C. Defendants Did Not Breach the Alleged Oral Agreement
Even if Plaintiff could rely upon an oral agreement, by the terms of the Complaint
and the documents incorporated therein, he does not assert of a breach of such agreement.
Plaintiff's description of the supposed oral agreement is vague and confusing; however, to assert
that the parties agreed upon the essential terms necessary for an enforceable contract, Plaintiff
must rely upon Peebles' June 27, 2012 e-mail because nowhere else in the Complaint is the
"interest" defined or are the other relevant terms discussed.
Peebles' e-mail, containing his "initial thoughts," indicated that "[w]e are
comfortable with an ownership interest of 5% of our promote interest for deals that you are not
11
KL3 3003178.8
the procuring cause." (Ex. C, at 1). Plaintiff asserts that on June 28, 2012 the parties agreed
that Plaintiff would "receive 5% of Defendants' interest" (Complaint ¶ 35), which, must mean
that Plaintiff agreed to receive 5% of Defendants' promote interest. 2 Indeed, Plaintiff alleges
that at the time Peebles "anticipated employing the 'promote' structure to acqtfire and develop
the 'Civic Center' properties." (Id. at !I 33). However, Plaintiff concedes that a promote interest
never arose in connection with 346 Broadway. (Id. at ¶ 42, 47).
As discussed above, the Complaint explains that in a promote structure TPC
partners with a "funding, or equity partner, to obtain most of the capital necessary to acquire the
property." (Id. at ¶ 33). Such agreement then provides for "an ownership split favoring the more
substantial equity partner until that equity investor's capital investment is repaid" and would
typically provide the equity partner with a preferred rate of return. (Id.). Following the
repayment of the investment and payment of the preferred rate, TPC's ownership split changes
more favorably and this percentage change is considered TPC's "promote interest." (Id.).
Instead of entering into a promote structure, on February 25, 2013, CCGB
executed a purchase agreement with the City of New York for 346 Broadway and did so without
an equity partner. (Id. at 11142). CCGI3 II later entered into a preliminary joint venture
agreement with an Elad-affiliated entity that provided CCGB II with certain cash payments,
reimbursement of expenses, and a 35% interest in the property. (Id. at IT 47). Because no
promote interest arose, Plaintiff cannot assert that Defendants breached the alleged oral
agreement when it declined to pay Plaintiff a percentage of the promote interest.
2
Indeed, otherwise Plaintiff s allegations make no sense. Plaintiff proposed a 0.5% ownership
interest in the Civic Center properties, but Peebles rejected that proposal and instead offered a
portion of TPC's promote. (Ex C, at 2). It is illogical that six days later he would accept a
proposal granting a direct 5% interest in the property — fully ten times what Newhouse requested.
12
1{1.2 3003178.8
Furthermore, Plaintiff does not — and cannot — allege that he met the vesting
conditions under the June 27, 2012 e-mail: "You would need to be employed with TPC [at the]
time of each milestone in order to receive the applicable ownership interest." (Ex. C at 1).
For all of these reasons, Plaintiff fails to adequately allege a breach of the
supposed oral agreement.
1). Peebles Cannot Be Held Personally Liable for Breach of Contract
Even if the breach of contract claim were properly pled, Plaintiff fails to plead
facts upon which Peebles could be held personally liable. "[I]t is well established that officers or
agents of a company are not personally liable on a contract if they do not purport to bind
themselves individually." Georgia Malone & Co. v. Rieder, 86 A.D.3d 406, 408, 926 N.Y.S.2d
494, 496-97 (1st Dep't 2011) (affirming a motion to dismiss and finding no personal liability
where officer entered into the agreement on behalf of his company). Indeed, the general rule "is
that an officer Or director is liable when he acts for his personal, rather than the corporate
interests." Joan Hansen & Co. v. Everlast World's Boxing Headquarters Corp., 296 A.D.2d
103, 110, 744 N.Y.S.2d 384, 390 (1st Dep't 2002) (dismissing claim of personal liability for
breach of contract where plaintiff failed to allege that defendants "sought to obtain a personal
benefit, as opposed to a benefit to the corporation he represented").
The Complaint acknowledges that Peebles is the Chairman and CEO of TPC.
(Complaint ¶ 17). Plaintiff nowhere alleges that any agreement existed between him and
Peebles, rather than him and TPC — indeed, if that were the case then the claim against TPC
would have to be dismissed — or that Peebles intended to be personally bound by any agreement
with Plaintiff. Plaintiff does not allege that Peebles sought a benefit for himself rather than a
benefit to TPC. As is clear in the Employment Agreement, Plaintiff worked for TPC, not
Peebles personally (Ex. B, at 1). Similarly, the June 27, 2012 e-mail from Peebles refers to "our
13
KL3 3003178.8
company" and states that "[y]ou would need to be employed by TPC [at the] time of each
milestone in order to receive the applicable ownership interest." (Ex. C, at 1).
Because Plaintiff does not allege that Peebles intended to be personally bound by
any agreement with Plaintiff and Peebles was acting in his capacity as Chairman and CEO of
TPC, his breach of contract claim against Peebles should be dismissed.
III. Plaintiffs Implied and Quasi Contract Claims Also Fail
Given that his claim for breach of contract cannot succeed, Plaintiff asks this
Court to create a contract where none exists, asserting a kitchen sink of baseless and unsupported
quasi contract and implied contract claims. None of these allegations can survive dismissal.
A. Plaintiffs Implied Contract Claim Must Fail
An implied-in-fact contract requires the same elements as a -written contract,
including "consideration, mutual assent, legal capacity, and legal subject matter." Maas V.
Cornell Univ., 94 N.Y.2d 87, 93-94 (1999). Here, the allegations in the Complaint reveal that
there was no mutual assent. As discussed above, it is clear that the parties intended to negotiate a
written agreement that would contain all of the as-yet-unnegotiated terms of a fully integrated
agreement. Plaintiff rejected the Proposed Agreement proffered on January 9, 2014 and now
claims an implied-in-fact contract, but "[a] contract may not be implied in fact from the conduct
of the parties where it appears that they intended to be bound only by a formal written
agreement." Valeniino v. Davis, 270 A.D.2d 635, 638, 703 N.Y.S.2d 609, 612 (3d Dep't 2000)
(dismissing implied-in-fact claim where parties intended that agreement would be formalized in
writing by an attorney).
Moreover, Plaintiff seems to misunderstand the legal construct upon which he
seeks to rely. Implied-in-fact contracts "res[t] upon the conduct of the parties and not their
verbal or written words." Parsa v. Stale, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27, 29-30 (1984)
14
KL3 3003178.8
(analyzing the difference between implied-in-fact and implied-in-law or quasi contracts). "[A]
contract implied in fact contemplates not assurances or promises but conduct." Zimmer v. Town
of Brookhaven, 247 A.D.2d 109, 114, 678 N.Y.S.2d 377, 381 (2d Dep't 1998) (affirming
dismissal of implied-in-fact contract claim in part because claim was based on assurances that
defendant Town would pay expenses for plaintiff). Plaintiff s claim for breach of implied
contract merely lists "promises" allegedly made by Defendants. (Complaint ¶ 68). Indeed,
Plaintiff uses the term "promise" or "promises" six times as the basis for this claim. (Id.) He
asserts no actual conduct, but seeks to recast words as conduct. 3
In any event, Plaintiff's claim must fail given the existence of an actual express
contract covering the same subject matter as the alleged implied contract. Plaintiff s services
were covered by the valid Employment Agreement (Ex. B), and thus the implied contract claim
is precluded. See Peter Lampack Agency, Inc. v Grimes, 93 A.D.3d 430, 431, 939 N.Y.S.2d 409,
410 (1st Dep't 2012) (dismissing implied contract claim "because there exists an express
contract covering the same subject matter"); A&S Welding & Boiler Repair, Inc. v. Siegel, 93
A.D.2d 712, 712, 460 N.Y.S.2d 582, 582 (1st Dep't 1983) ("A contract cannot be implied in fact
. . . where there is an express contract covering the subject-matter involved; or against the
intention or understanding of the parties.") (internal citation omitted). Because Plaintiff was
duly compensated for the services he performed under the Employment Agreement, the
existence of that agreement bars any claim for breach of an alleged implied contract.
B. Plaintiff Has Not Adequately Alleged a Breach of the

Implied Covenant of Good Faith and Fair Dealing
Plaintiff's third cause of action for breach of the implied covenant of good faith
and fair dealing collapses because (i) he fails to adequately allege the existence of a valid
3
Moreover, these "promises" are merely unenforceable future expectations.
15
KL3 3003178.8
agreement that gives rise to an implied covenant claim; (ii) even if an agreement is found to
exist, he does not allege that Defendants acted in a way that while not forbidden by the alleged
agreement deprived him of his rights under the agreement; and (iii) he merely repeats his breach
of contract claim in asserting the implied covenant allegations. Consequently, this claim cannot
survive a motion to dismiss.
A claim for breach of the implied covenant of good faith and fair dealing may be
pursued only where Plaintiff establishes the existence of a valid and binding contract. See
American-European Art Assocs. v. Trend Galleries, Inc., 227 A.D.2d 170, 171, 641 N.Y.S.2d
835, 836 (1st Dep't 1996) (dismissing claim where there was no valid contract). If a binding
contract exists, then the implied covenant is breached "when a party to a contract acts in a
manner that, although not expressly forbidden by any contractual provision, would deprive the
other party of the right to receive the benefits under their agreement." Jaffe v Paramount
Commc 'ns Inc. , 222 A.D.2d 17, 22-23, 644 N.Y.S.2d 43, 47 (1st Dep't 1996) (upholding
dismissal of claim where plaintiff failed to allege that defendant deprived him of any rights under
their employment agreement).
Here, Plaintiff has no valid contract from which an implied covenant could arise.
His allegations.in support of this claim focus on Defendants' "refusal to negotiate [the Proposed
Agreement] in good faith." (Complaint '1174). Courts will not impute a duty to negotiate the
terms of an agreement without "a clear set of guidelines against which to measure a party's best
efforts." Bernstein v. Felske, 143 A.D.2d 863, 865, 533 N.Y.S.2d 538, 540 (2d Dep't 1988).
Plaintiff cannot allege any such guidelines. See id. (upholding dismissal of claim for breach of
good faith and fair dealing based on a failure to come to a complete agreement that was based on
a vague letter of intent). Plaintiff is left with a claim based merely on the failure to agree, but
16
KL3 3003178.8
there is no violation of the obligation to negotiate in good faith simply because negotiations
failed. See Mode Contempo, Inc. v Raymours Furniture Co., 80 A.D.3d 464, 465, 915 N.Y.S.2d
528, 529 (1st Dep't 2011) (dismissing claim for implied breach of good faith and fair dealing
because mere failure of negotiation does not state a claim).
Plaintiff's claim also is duplicative of his contract claim, as he simply restates that
Defendants breached the oral agreement. However, when a claim for breach of the implied
covenant of good faith and fair dealing arises from the same facts as the cause of action for
breach of contract and seeks identical damages for each alleged breach, the claim must be
dismissed. See Amcan Holdings, Inc., 70 A.D.3d at 426, 894 N.Y.S.2d at 49-50 (implied
covenant claim "was properly dismissed as duplicative of the breach-of-contract claim, as both
claims arise from the same facts and seek the identical damages for each alleged breach"); Logan
Advisors, LLC v. Patriarch Partners, LLC, 63 A.D.3d 440, 443, 879 N.Y.S.2d 463, 466-67 (1st
Dep't 2009) (upholding dismissal of claim where it was "duplicative of the breach of contract
claim because both claims arise from the same facts"). Consequently, Plaintiff s claim that
Defendants breached an implied covenant of good faith and fair dealing should be dismissed.
C. Plaintiff Cannot Sustain His Claims Pleaded Under 'Theories of

Quantum Meruit, Unjust Enrichment, and Promissory Estoppel
Plaintiff fails to state claims for quantum meruit, unjust enrichment, and
promissory estoppel because these claims are duplicative of the breach of contract claim. In all
three causes of action, Plaintiff merely alleges that his work benefitted Defendants and therefore
he should receive the same damages he seeks in connection with his claim for breach of contract.
(Complaint 11177-80, 82-84, 86-89). However, an "unjust enrichment claim is not available
where it simply duplicates, or replaces, a conventional contract or tort claim," and "if plaintiffs'
other claims are defective, an unjust enrichment claim cannot remedy the defects." Corsello v.
17
KU 3003178.8
Verizon N.Y, Inc., 18 N.Y.3d 777, 790-91 (2012). See also Rogowsky v. MCGarry, 55 A.D.3d
815, 816-17, 865 N.Y.S.2d 670, 672 (2d Dep't 2008) (dismissing claim for unjust enrichment
because "the underlying basis for these claims was the alleged breach of the oral agreement.").
Because Plaintiff s claims for quantum meruit and unjust enrichment completely mirror his claim
for breach of contract, these causes of action should be dismissed. Moreover, each proposed
claim fails for other, specific reasons described below.
1. Plaintiff Does Not Properly Allege a Claim for Quantum Meruit
To assert a claim for quantum meruit, Plaintiff must allege "the performance of
services in good faith, acceptance of the services by the person to whom they are rendered, an
expectation of compensation therefor, and the reasonable value of the services." Georgia
Malone & Co., 86 A.D.3d at 410, 926 N.Y.S.2d at 499. Plaintiff claims that he "performed
services for Defendants in the reasonable expectation that he would be compensated for his
work," Defendants "accepted the benefits" of his work, and he therefore is "entitled to recover
the reasonable value of his services for Defendants, to the extent that he has not been
compensated before." (Complaint ¶J 77-79). He also alleges that the compensation he is owed is
identical to that alleged under his breach of contract claim. (Id. at ¶ 80).
However, "Mecovery in quantum meruit is not warranted when the services
rendered by the plaintiff were required by the terms of an express contract between the parties."
Mary Matthews Inferiors v. Levis, 208 A.D.2d 504, 506, 617 N.Y.S.2d 39,41 (2d Dep't 1994).
In Freedman v. Pearlman, 271 A.D.2d 301, 303-04, 706 N.Y.S.2d 405, 408 (1st Dep't 2000),
plaintiff alleged that he performed work for defendants for a salary and was orally promised
additional fees as well as an interest in a corporation for which plaintiff performed advisory
work. The court affirmed dismissal of this claim:
18
KL3 3003178.8
Freedman's allegation that he performed services far greater than

defendants deserved for the compensation he actually received are
not sufficient to state a cause of action in quantum meruit where
none of the services allegedly performed are so distinct from the
duties of his employment and of such nature that it would be
unreasonable for the employer to assume that they were rendered
without expectation of further pay.
Freedman, 271 A.D.2d at 304, 706 N.Y.S.2d at 408 (citation omitted). Similarly, here, Plaintiff
does not allege that he performed services beyond what was required by his employment with
TPC, and his claim thus fails,
Furthermore, Plaintiff knew, by the language of the Employment Agreement, that
any bonus payment made to him would be subject to TPC's discretion. (Ex. B at 1).
Consequently, he cannot claim he had a contractual right to any bonus outside of TPC's
discretion when he acknowledged this fact in writing. See Kaplan v. Capital Co. of Am., 298
A.D.2d 110, 111, 747 N.Y.S.2d 504, 506 (1st Dep't 2002) (quantum meruit claim fails where
plaintiff was aware that bonuses were discretionary). Consequently, even without the barriers
discussed. above, Plaintiff cannot proceed with his claim of quantum meruit.
2. Plaintiff s Unjust Enrichment Claim Fails
To state a claim for unjust enrichment, Plaintiff must allege that "the defendant
has obtained a benefit which in equity and good conscience should be paid to the plaintiff."
Corsello, 18 N.Y.3d at 790 (citations and internal quotation marks omitted). The Court of
Appeals explained that unjust enrichment "is not a catchall cause of action to be used when
others fail" and is "available only in unusual situations when, though the defendant has not
breached a contract nor committed a recognized tort, circumstances create an equitable
obligation running from the defendant to the plaintiff" Id. (citations omitted). A "typical case"
is when a defendant commits no wrongdoing, but "has received money to which he or she is not
entitled." Id.
19
KL3 3003170.8
Plaintiff s allegations supporting his claim for unjust enrichment merely recite
that he performed work that benefited Defendants and they were unjustly enriched. (Complaint
IN 82-83). Such a claim does not rise to the "unusual" situation contemplated by the Court of
Appeals in Corsello. Instead, this is a common occurrence where Plaintiff performed his job in
connection with his employment obligations and wanted to be paid more money, even though his
salary rose quickly and exponentially throughout his brief tenure. (Ex. B; Complaint ¶J 24, 35).
Indeed, as with his quantum meruit claim, Plaintiff s unjust enrichment claim is
barred precisely because he performed under, and received compensation pursuant to, a valid
written agreement. See Zolotar v. New York Life Ins. Co., 172 A.D.2d 27, 33, 576 N.Y.S.2d 850,
854 (1st Dep't 1991) (upholding summary judgment dismissing unjust enrichment and quantum
meruit claims where employee had "fully performed under a written contract, whose existence is
undisputed, and whose terms cover the subject matter of the dispute"); Vitale v. Steinberg, 307
A.D.2d 107, 111, 764 N.Y.S.2d 236, 239 (1st Dep't 2003) (dismissing unjust enrichment claims
where express contract, a compensation plan, governed the subject matter of plaintiff s claims).
As with his quantum meruit claim, there is no allegation that Plaintiff performed duties outside
of the scope of his regular employment.
3. Plaintiff s Promissor 7 Esto el Claim Also Fails
Promissory estoppel is "reserved for a limited class of cases based on unusual
circumstances," none of which are present in the instant matter. Tribune Printing Co. v. 263
Ninth Ave. Realty, Inc., 88 A.D.2d 877, 879, 452 N.Y.S.2d 590, 593 (1st Dept. 1982). It requires
a "clear and unambiguous promise on which plaintiff reasonably could have relied." Schutty, 86
A.D.3d at 485, 928 N.Y.S.2d at 4. Yet as discussed above, there was no such clear promise. The
term "Defendants' interest" is not defined and there is no allegation concerning Plaintiff s duties
under the alleged promise. The only thing that was clear was the parties' intent to negotiate a
20
1(1.3 3003178.8
written, fully integrated agreement — something that never happened. Thus, Plaintiff cannot
demonstrate either the existence of a "clear and unambiguous promise" or reasonable reliance on
any such promise.
Moreover, to make a claim for promissory estoppel, Plaintiff must allege some
"prejudicial change in his position." Tierney, 189 A.D.2d at 632, 592 N.Y.S.2d at 704. Plaintiff
pleads only that he "relocated, worked diligently and otherwise performed services on
Defendants' behalf." (Complaint ¶ 87). However, the alleged oral promise concerning the
percentage interest he would earn from Defendants' activities did not occur until seven months
oiler he relocated to New York, and thus he clearly did not relocate in reliance on any such
promise. (Id. at '11123, 35). In fact, Plaintiff s supposed reliance consisted of him merely
continuing to do his job — he flatly fails to allege a prejudicial change in position. See Tierney,
189 A.D.2d at 632, 592 N.Y.S.2d at 703-04 (noting that continuing to do one's job and earning a
salary cannot support a claim for promissory estoppel); Tsabbar v. Auld, 289 A.D.2d 115, 115,
735 N.Y.S.2d 31, 32 (1st Dep't 2001) (to support a claim for promissory estoppel, performance
must be "unequivocally referable to the alleged oral agreement")
Finally, Plaintiff s promissory estoppel claim cannot avoid the Statute of Frauds
unless he demonstrates that it would be "unconscionable to deny" the oral promise upon which
allegedly relied. See Ginsberg v. Fairfield-Noble Corp., 81 A.D.2d 318, 320-21, 440 N.Y.S.2d
222, 224-25 (1st Dep't 1981) (barring contract claim due to Statute of Frauds and finding that
plaintiff s decision to forego other employment based upon alleged oral promises did not rise to
the level of unconscionability necessary to overcome the Statute of Frauds). To circumvent the
Statute of Frauds, Plaintiff must allege that his "rights under the previous situation, or missed
opportunity, were so valuable that injury of Unconscionable proportions would flow from the
21
KL3 3003 178.8
failure to enforce the oral contract." Cunnison v. Richardson Greenshields Sec., Inc., 107
A.D.2d 50, 53, 485 N.Y.S.2d 272, 276 (1985). Yet, Plaintiff's alleged reliance is solely focused
on his relocation and continued work for TPC. (Complaint at 1187). Neither fact even
approaches the level of injury required to avoid the Statute of Frauds. "[I]t has been consistently
held that a change of job or residence, by itself, is not sufficient to trigger invocation of the
promissory estoppel doctrine." Cunnison, 107 A.D.2d at 53, 485 N.Y.S.2d at 276 (explaining
that the decisions based on "rosy promises" do "not put the stigma of unconscionability upon the
defendants' right to assert the Statute of Frauds.").
D. Peebles Cannot Be Personally Liable for

Plaintiff's Alleged Implied or Quasi Contract Claims
As discussed above with respect to Plaintiff s breach of contract claim, Peebles
cannot be held personally liable for any alleged breach of an implied or quasi contract. Plaintiff
does not allege - that Peebles acted in his individual capacity, rather than as CEO of TPC, when he
directed Plaintiff to perform certain duties. Indeed, Plaintiff was employed by TPC and at all
times performed services for TPC alone. Similarly, Plaintiff does not allege that Peebles made
any promises to Plaintiff in his personal capacity, such as promising to pay Plaintiff out of his
own pocket. Consequently, Peebles cannot be held liable for Plaintiff's causes of action
sounding in implied contract, the covenant of good faith and fair dealing, quantum meruit, unjust
enrichment, or promissory estoppel. See Waldman v. Englishiown Sportswear, Ltd., 92 A.D.2d
833, 836-37, 460 N.Y.S.2d 552, 556-57 (1st Dep't 1983) (dismissing quantum meruit and unjust
enrichment claims in employment case where at all times the individual defendants were acting
on behalf of the corporate defendant in their capacity as officers of corporation); Rosenberg v.
Home Box Office, Inc., 33 A.D.3d 550, 550, 822 N.Y.S.2d 921, 921 (1st Dep't 2006) (affirming
dismissal of a claim for promissory estoppel because plaintiff failed to plead a promise of a
22
KL.13 3003178.8
personal action by the individual defendant); Oladokun v. Ryan, No. 06 cv 2330 (KMW), 2011
WL 4471882, at *13 (S.D.N.Y. Sept. 27, 2011) (applying New York law and dismissing a breach
of implied contract claim against an individual defendant because implied contract was between
employee and employer).
IV. Plaintiff's Labor Law Claim Should Be Dismissed
Plaintiff's seventh cause of action fails as a matter of law because Plaintiff does
not allege a substantive violation of the Labor Law. Labor Law § 198 sets forth the remedies
available for a breach of the Labor Law but contains no substantive provisions:
In any action instituted upon a wage claim by an employee . . . in

which the employee prevails, the court shall allow such employee
reasonable attorney's fees and, upon a finding that the employer's
failure to pay the wage required by this article was willful, an
additional amount as liquidated damages equal to twenty-five
percent of the total amount of the wages found to be due.
N.Y. Labor Law § 198(1-a).
The Court of Appeals has made clear that the remedies provided by Section 198
are available only in actions brought under the substantive provisions of Labor Law Article 6 and
are not available to individuals seeking recovery only under other theories, such as breach of
contract. See Gottlieb v. Kenneth D. Laub & Co., 82 N.Y.2d 457, 463 (1993). Plaintiff merely
states that "the foregoing causes of action constitute wage claims as the Labor Law defines the
term." (Complaint 1193). He nowhere alleges how or why Plaintiff s claims are based upon
substantive violations of the Labor Law or which provisions of the Labor Law Defendants
supposedly violated.
In Gottlieb, the Court of Appeals rejected the plaintiff s argument that Section
198 of the Labor Law should apply to his common law contract claim, finding that the statute
applies only to claims brought for violations of the Labor Law: "[T]he remedies provided in
23
KL3 3003178 8
section 198 were intended to be limited to claims based upon substantive violations of the
article." Gottlieb, at 463. See also Scheer v. Kahn, 221 A.D.2d 515, 517, 634 N.Y.S.2d 148,
151 (2d Dep't 1995) (dismissing Section 198 claim because "the only causes of action based on
the Labor Law are for costs, attorney's fees, and liquidated damages which do not come under
the substantive provisions of Labor Law § 198(1-a)"). Because the Complaint does not include a
claim for a substantive violation of the Labor Law, this claim for remedies under Section 198
should be dismissed.
V. Plaintiff Fails to Adequately Allege the Existence of a Fiduciary

Relationship, Thus His Claim for Breach of Fiduciary Duty Fails
Plaintiff's eighth cause, for breach of fiduciary duty, fails because no fiduciary
relationship existed between the parties. A claim for breach of fiduciary duty requires the
existence of a fiduciary relationship. See Batas v. Prudential Ins. Co. of Am., 281 A.D.2d 260,
264, 724 N.Y.S.2d 3, 7 (1st Dep't 2001) (no fiduciary duty arose between contracting parties).
Indeed, lilt is well settled in New York that no fiduciary obligation is owed by an employer to
an at-will employee." Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon, 172 A.D.2d 254,
254, 568 N.Y.S.2d 84, 85 (1st Dep't 1991) (upholding dismissal of claim for breach of 'fiduciary
duty because an employer does not owe an employee a fiduciary obligation). See also Vitale,
307 A.D.2d at 108, 764 N.Y.S.2d at 237 ("An employer-employee relationship providing for the
division of profits will not give rise to a fiduciary obligation on the part of the employer absent
an agreement to also share losses."). While Plaintiff asserts that Defendants caused him to
repose trust in them, and thereby somehow became his fiduciaries, his allegations support only
that he was an employee working closely with Peebles, Peebles expressed hopes for the future
such as "we're going to make a fortune together," Peebles respected Plaintiff s views, and they
had a personal relationship. (Complaint 1198). None of these allegations are sufficient to elevate
24
KL3 3003178.8
Plaintiff s relationship with Defendants' from that of employer and employee, and supervisor
and subordinate, to that rare type of relationship that gives rise to fiduciary obligations. See
Eden v. St. Luke's-Roosevelt Hosp. Ctr., 96 A.D.3d 614, 615, 947 N.Y.S.2d 457, 459 (1st Dep't
2012) ("Neither an agreement by an employer to share profits with an employee as compensation
for the latter's services nor a contract of mere hiring and providing for compensation in a
particular manner supposedly tending to induce greater energy and faithfulness on the part of the
employee creates a fiduciary relationship between the employer and employee.").
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court
(i) dismiss the Complaint in its entirety, with prejudice and without leave to amend, pursuant to
CPLR 3211(a)(1), 3211(a)(5), and 3211(a)(7); and (ii) grant such other relief as the Court may
deem just and proper.
Dated: New York, New York

February 17, 2015
KRAMER LEVIN NAFTALIS & FRANKEL LLP
By:
Robert N. Holtzman
Katrina L. Baker
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100
RHoltzman a kramerlevin.com
KBaker a kramerlevin.com
Attorneysfor Defendants
R. Donahue Peebles and
The Peebles Corporation
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1(13 3003170.0
02/17/2015 04:48
04:26 PM INDEX NO. 652178/2021
653998/2014
NYSCEF DOC. NO. 53
02/17/2015
REQUEST FOR JUDICIAL INTERVENTION For Court Clerk Use Only:

UCS-840 (7/2012) IAS Entry Date
Supreme COURT, COUNTY OF New York

Judge Assigned
Index No: 653998/2014 Date Index Issued: 12/31/2014
Enter the complete case caption. Do not use et al or et ano. If more space is required, HJT Date
CAPTION:
attach a caption rider sheet.
DANIEL NEWHOUSE
Plaintiff(s)/Petitioner(s)
-against-
THE PEEBLES CORPORATION and R. DONAHUE PEEBLES
Defendant(s)/Respondent(s)
NATURE OF ACTION OR PROCEEDING: Check ONE box only and specify where indicated
MATRIMONIAL COMMERCIAL
()Contested 0 Business Entity (including corporations, partnerships, LLCs, etc.)
NOTE: For all Matrimonial actions where the parties have children under 0 Contract
the age of 18, complete and attach the MATRIMONIAL RJI Addendum. 0 Insurance (where insurer is a party, except arbitration)
For Uncontested Matrimonial actions, use RJI form UD-13. O UCC (including sales, negotiable instruments)
TORTS 0 Other Commercial:
(specify)
Asbestos 0
0 Breast Implant NOTE: For Commercial Division assignment requests [22 NYCRR §
0 Environmental: 202.70(d)], complete and attach the COMMERCIAL DIV RJI Addendum.
(specify)
REAL PROPERTY: How many properties does the application include?
0 Medical, Dental, or Podiatric Malpractice 0 Condemnation

0 Motor Vehicle 0 Mortgage Foreclosure (specify): 0 Residential 0 Commercial
0 Products Liability: Property Address:

(specify) Street Address City State Zip
0 Other Negligence: NOTE: For Mortgage Foreclosure actions involving a one- to four-family,
(specify) owner-occupied, residential property, or an owner-occupied
0 Other Professional Malpractice: condominium, complete and attach the FORECLOSURE RJI Addendum.
(specify) 0 Tax Certiorari - Section: Block: Lot:
0 Other Tort: 0 Tax Foreclosure
(specify) 0 Other Real Property:
(specify)
OTHER MATTERS
0 Certificate of Incorporation/Dissolution [see NOTE under Commercial] SPECIAL PROCEEDINGS
0 Emergency Medical Treatment 0 CPLR Article 75 (Arbitration) [see NOTE under Commercial]
0 Habeas Corpus o OPLR Article 78 (Body or Officer)

0 Local Court Appeal 0 Election Law
0 Mechanic's Lien 0 MHL Article 9.60 (Kendra's Law)
0 Name Change O MHL Article 10 (Sex Offender Confinement-Initial)
0 Pistol Permit Revocation Hearing 0 MHL Article 10 (Sex Offender Confinement-Review)
0 Sale or Finance of Religious/Not-for-Profit Property o MHL Article 81 (Guardianship)

0 Other: 0 Other Mental Hygiene:
(specify) (specify)
0 Other Special Proceeding:

(specify)
STATUS OF ACTION OR PROCEEDING: Answer YES or NO for EVERY question AND enter additional information where indicated
YES I NO I
Has a summons and complaint or summons w/notice been filed? 0 0 If yes, date filed: 12/31/2014
Has a summons and complaint or summons w/notice been served? 0 0 If yes, date served: 01/05/2015
Is this action/proceeding being filed post-judgment? 0 0 If yes, judgment date:
NATURE OF JUDICIAL INTERVENTION: Check ONE box only AND enter additional information where indicated.
O Infant's Compromise
O Note of Issue and/or Certificate of Readiness
O Notice of Medical, Dental, or Podiatric Malpractice Date Issue Joined:
O Notice of Motion Relief Sought: Dismiss Return Date: 03 / 13 /2015
O Notice of Petition Relief Sought: ReturnDa:
O Order to Show Cause Relief Sought: Return Date:
0 Other Ex Parte Application Relief Sought:
O Poor Person Application
O Request for Preliminary Conference
O Residential Mortgage Foreclosure Settlement Conference
0 Writ of Habeas Corpus
O Other (specify):
List any related actions. For Matrimonial actions, include any related criminal and/or Family Court cases.
RELATED CASES:
If additional space is required, complete and attach the RJI Addendum. If none, leave blank.
Case Title Index/Case No. Court Judge (if assigned) Relationship to Instant Case
For parties without an attorney, check "Un-Rep" box AND enter party address, phone number and e-mail address in space provided.
PARTIES:
If additional space is required, complete and attach the RJI Addendum.
Parties: Attorneys and/or Unrepresented Litigants:
Issue
Un- List parties in caption order and Provide attorney name, firm name, business address, phone number and e-mail Insurance
Joined
ReP indicate party role(s) (e.g. defendant; address of all attorneys that have appeared in the case. For unrepresented Carrier(s):
(Y/N):
3rd-party plaintiff), litigants, provide address, phone number and e-mail address.
Newhouse Haftel Richard E.

Last Name Last Name First Name
(,'YES
Daniel -iaftel & Silverman, P.C.
First Name Firm Name
Primary Role:
260 Madison Avenue, 18th Floor New York New York 10016
Plaintiff
Secondary Role (if any):
Street Address City State Zip
O NO
i- 1 (212) 686 - 3100 +1 (917) 210 - 2912 haftel@haftekcom
Phone Fax e-mail
The Peebles Corporation -loltzman Robert N.

OYES
Kramer Levin Naftalis & Frankel
Primary Role:
1177 Avenue of the Americas New York New York 10036
Defendant Street Address City State Zip 0
NO
+1 (212) 715-9513 +1 (212) 715-8035 rholtzman@kramerlevin.com
Phone Fax e-mail
Peebles -io)tzman Robert N.

OYES
R. Donahue Kramer Levin Naftalis & Frankel
Primary Role:
1177 Avenue of the Americas New York New York 10036
Defendant Street Address City State Zip ATh
ii- 1 (212) 715 - 9513 +1 (212) 715 - 8035 rholtzman@kramerlevin.com
Phone Fax eqoail

(aYES
7 First Name
Primary Role:
Firm Name
Street Address City State

Secondary Role (if any): Zip
ONO
Phone Fax e-mail
I AFFIRM UNDER THE PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE AND HAVE
BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR JUDICIAL INTERVENTION PREVIOUSLY BEEN FILED IN
THIS ACTION OR PROCEEDING.
Dated: 02/17/2015
SIGNATURE
2563047 Robert N. Holtzman
ATTORNEY REGISTRATION NUMBER PRINT OR TYPE NAME
Print Form
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Don Peebles / The Peebles Corporation / 652178 2021 The Peebles Corporation V The Peebles Corporation EXHIBIT S 53

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Don Peebles / The Peebles Corporation / 652178 2021 The Peebles Corporation V The Peebles Corporation EXHIBIT S 53

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FILED: NEW YORK COUNTY CLERK 04/27/2021

SUPREME COURT OF THE STATE OF NEW YORK

- against — Index No. 653998/2014

THE PEEBLES CORPORATION and

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS'

Plaintiff s Breach of Contract Claim Fails 7

III. Plaintiff s Implied and Quasi Contract Claims Also Fail 14

IV. Plaintiff s Labor Law Claim Should Be Dismissed 23

V. Because Plaintiff Fails to Adequately Allege the Existence

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N.Y. Labor Law § 198 2, 23, 24

N.Y. Gen. Oblig. Law § 5-703(1) 8

Defendants The Peebles Corporation ("TPC") and R. Donahue Peebles ("Peebles"

Plaintiff seeks to transform a series of communications in which he and Peebles,

an enforceable contract which he claims entitles him to "5% of Defendants' interest" in a

Moreover, Plaintiff s claim to a percentage of Defendants' interest in 346

Plaintiff s 108-paragraph Complaint is devoid of any viable legal theories of

entirety, with prejudice.

Officer ("CEO"). (Ex. A, Complaint 'If 15, 17).

Development and Investments. (Complaint II 17; Ex. B, Plaintiff s Employment Agreement,

Throughout Plaintiff s employment, he provided advice, hired and managed

all on behalf of TPC. (Id. atli 3)

In September 2011, Peebles informed Plaintiff that he was being promoted to

In New York, Plaintiff focused on Requests for Proposals ("RFPs") solicited by

• a salary increase to $150,000;

2012 and June 27, 2012).

"some of my initial thoughts" and in relevant part, wrote:

We are comfortable with an ownership interest of 5% of our

increased only seven months earlier. (Id.).

Civic Center properties would utilize a promote structure. (Complaint IT 34).

to $150,000 — an increase of almost 25% within one year. (Id).

Broadway. (Id at ¶ 43).

Civic Center Community Group Broadway Mezzanine LLC ("CCGB II")