HUNTER v. DEUTSCHE BANK AG NEW YORK BRANCH (2008)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about November 16, 2007, which, in actions arising out of defendant's refusal to pay bonuses, granted defendant's motion for summary judgment dismissing the complaints, unanimously affirmed, with costs.

 Plaintiffs' claims for breach of contract lack merit in view of the unambiguous language of their contracts and the employee handbook plainly making bonus awards solely and completely a matter of defendant's discretion (see Kaplan v. Capital Co. of Am., 298 A.D.2d 110, 111, 747 N.Y.S.2d 504 [2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003];  cf. Caruso v. Allnet Communication Servs., 242 A.D.2d 484, 484–485, 662 N.Y.S.2d 468 [1997] ).  Language that bonuses would be contingent on criteria such as performance and profitability cannot be interpreted as a limitation on defendant's discretion, since doing so would render the clear language of discretion meaningless (see Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324, 834 N.Y.S.2d 44, 865 N.E.2d 1210 [2007] ).  The claims for breach of the implied covenant of good faith and fair dealing, even assuming they can coexist in this context with a right of unfettered discretion (but cf. Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 304–305, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] ), are not supported by any evidence of bad faith (see Richbell Info. Servs. v. Jupiter Partners, 309 A.D.2d 288, 303, 765 N.Y.S.2d 575 [2003] ).  The claims for unjust enrichment and quantum meruit are not viable since an express contract governs the subject matter (see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 23, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).  Unpaid bonuses do not constitute “wages” under Labor Law § 193 (see Truelove v. Northeast Capital & Advisory, 95 N.Y.2d 220, 224, 715 N.Y.S.2d 366, 738 N.E.2d 770 [2000] ), plaintiffs' “commission” nomenclature notwithstanding.