OPINION OF THE COURT
In this breach of contract action, plaintiff John Sheehy, a for
At all times relevant to this case, the firm’s retirement plan, incorporated by reference into the partnership agreement, provided for early retirement for partners between the ages of 60 and 64. Partners who reached the age of 65 were eligible for normal retirement, while mandatory retirement began at age 70. The retirement benefits available to partners taking normal or mandatory retirement included four years of payments equal to 37.5% of the distribution of partnership profits which the partner would have received had he or she not retired (the four-year payout), participation in the firm’s medical and life insurance plans, use of office space and secretarial assistance, and supplemental retirement payments (SRPs), which are paid for life beginning in the fifth year after the partner’s retirement.
By contrast, partners taking early retirement would receive the amount in the partner’s net capital account, actual cash distributions made to the partner on or before the date of retirement and the partner’s share of the partnership profits accrued during the year of retirement. Partners taking early retirement were not entitled to subsequent profit distributions or SRPs. According to the partnership agreement, early retiring partners could receive additional payments only if the Executive Committee, in the exercise of its discretion, entered into a written agreement authorizing such payments. Moreover, the retirement plan stated that SRPs “shall not be paid to a Partner who takes Early Retirement, except at the specific written request of the Executive Committee.”
In December 1994, the firm’s Executive Committee requested plaintiffs resignation. According to plaintiff, he then met with James Asher, the supervising partner and member of the Executive Committee, who asked plaintiff to withdraw frоm the firm
From 1996 until 1999, plaintiff indisputably received the four-year payоut, consisting of annual profit distribution payments of approximately $200,000. Plaintiff maintained that he also participated in the firm’s health and life insurance benefits, and utilized firm office space and secretarial assistance. According to the complaint, the firm hired an outside actuary and latеr directed the firm’s controller to calculate the amount of SRPs that plaintiff would receive. The controller prepared a memorandum stating that plaintiff was entitled to receive SRPs in the amount of $81,245 each year beginning January 1, 2000. However, the firm subsequently refused to pay SRPs to plaintiff.
Plaintiff brought this lаwsuit against the firm alleging breach of contract, unjust enrichment and breach of fiduciary duty arising from the failure to pay him SRPs. The firm raised various affirmative defenses, including the statute of frauds and the lack of a written agreement for the payment of SRPs in accordance with the provisions of the partnеrship agreement and the retirement plan. Plaintiff subsequently moved for an order, pursuant to CPLR 3212 (b), granting partial summary judgment, or alternatively, pursuant to CPLR 3211 (b), dismissing the firm’s affirmative defenses. Defendant cross-moved for summary judgment dismissing the complaint in its entirety for failure to comply with the statute of frauds or, in the alternative, fоr partial summary judgment dismissing so much of the complaint seeking damages for the present value of future installment payments not yet due. Supreme Court denied plaintiffs motion and granted defendant’s summary judgment motion dismissing the complaint in its entirety. In so doing, the court concluded that the statute of frauds barred plаintiff’s claims because the firm’s alleged obligation to make annual payments to him beginning five years after plaintiff’s retirement could not be performed within one year. Therefore, the court concluded, the contract was required to be in writing in
The Appellate Division modified the order of Supreme Court, оn the law, denied defendant’s cross motion as to plaintiff’s cause of action alleging breach of contract (except insofar as that cause sought damages for the present value of future installment payments not yet due), reinstated that cause of action to that extent and granted plaintiff’s motion dismissing certain affirmative defenses, and otherwise affirmed the order. Citing this Court’s decision in Kane v Rodgers (
The Appellatе Division granted defendant leave to appeal, and we now reverse the order of the Appellate Division, insofar as appealed from, and reinstate the order of Supreme Court dismissing the complaint.
The statute of frauds, as incorporated in section 5-701 (a) (1) of the General Obligаtions Law, provides that an agreement is
In this сase, plaintiff concedes that no written agreement exists between the parties entitling him to SRPs. Nor does he dispute that such payments were not to begin until five years after his retirement. However, relying on Kane v Rodgers (
In Kane, plaintiffs claimed they had an oral agency agreement with the defendants who, as agents of plaintiffs, had entered into written agreements with another defendant, Pisa, for the transfer of stock. Plaintiffs, as principals, thus claimed rights under the written agreements although they were not named in the agreements. Pisa alleged that the statute of frauds barred the claim, because his obligation to perform continued for more than one year. The Court held, and this Court affirmed, that the fact that the transfer of the stoсk was to take place over a period in excess of one year did not bring the oral agreement establishing the agency relationship within the statute of frauds (
Here, plaintiff argues that this case is analogous to the situation presented in Kane. According to him, “[t]he oral agreement gives [plaintiff] the status of Early Retirement at the Firm’s
We disagree. In Kane, the acts to be performed beyond a year concerned enforcement of plaintiffs’ rights under the written agreement, not the oral agency agreement. Here, plaintiff has no right to SRPs under the written partnership documents, and his claim of entitlement to SRPs does not flоw from the oral agreement giving him the status of early retired partner. As previously noted, the benefits to which an early retired partner is entitled under the retirement plan are significantly less than those available to a partner taking normal or mandatory retirement. Generally, a partner taking early retirement is not entitled to SRPs. Under the partnership agreement, an early retired partner may receive additional payments, including SRPs, if the Executive Committee chooses to enter into a written agreement authorizing such payments. Here, there was no such written agreement. Kane, thus, is inapplicable.
Under the retirement plan, a partner taking early retirement is not entitled to receive SRPs unless the early retirement was made at the specific written request of the Executive Committee. While the Executive Committee here asked plaintiff to withdraw from the firm, that request was never made in writing. Therefore, plaintiffs chаnge of status from partner to early retired partner (at the oral request of the firm) did not entitle him to SRPs under either the retirement plan or the partnership agreement. Accordingly, plaintiffs claim of entitlement to SRPs is based not on the Executive Committee’s oral request for him to take early retirеment, but on a separate oral promise to provide monetary benefits in addition to those normally provided to early retired partners. In order for plaintiff to enforce this alleged promise of SRPs, the performance of which could not possibly have been completed within one year of the agreement, it was necessary that the agreement be reduced to writing and subscribed by the firm’s representative. In the
Finally, the Appellate Division determined that the parties had orally agreed that in exchange fоr plaintiffs departure from the firm, he would be “deemed to have taken early retirement at the specific written request of the executive committee.” (
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the order of Supreme Court reinstated and the certified question answered in the negative.
Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur; Judge Ciparick taking no part.
Order, insofar as appealed from, reversed, etc.
Notes
. We have also been asked to decide whether the complaint should be dismissed based on the plain language of the firm’s retirement plan and partnership agreement. However, we need not reach this issue because wе conclude that the statute of frauds bars plaintiffs claims.
. Plaintiff asserts that various documents prepared by the firm sufficiently satisfied the writing requirement of the statute of frauds, including his change of status form designating him a senior counsel, a letter from the firm’s business administrator incorporating the “Rogers & Wells Benefit Plans Guidе for Partners,” a handwritten note prepared by the firm’s outside actuary and a memorandum from the firm’s controller. None of these documents, however, satisfy the statute of frauds. Neither the change of status form nor the letter from the business administrator, incorporating the firm’s benefit guide, makes any reference to plaintiffs entitlement to SRPs. In addition, the note from the actuary cannot satisfy the statute of frauds because the firm did not prepare it. Finally, the memorandum prepared by the firm’s controller merely reports the calculations of the outside actuary. It does not state that the firm agreed to pay SRPs to plaintiff. More importantly, the memorandum was not signed by anyone with authority to do so on behalf of the firm.