CICARDO NATIONAL INC v. LOEB (2023)

Order, Supreme Court, New York County (Andrew S. Borrok, J.), entered on or about October 14, 2022, which, to the extent appealed from, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their prima facie entitlement to summary judgment by submitting evidence that the parties never actually entered into a so-called “make whole agreement” — that is, an alleged oral agreement intended to compensate plaintiff's principal Jason Cicardo for a reduction in his compensation — that forms the basis of plaintiff's complaint.  In opposition, plaintiff failed to raise an issue of material fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]).  Plaintiff submitted no corroborating evidence of the purported make whole agreement, instead offering nothing more than Cicardo's self-serving, internally inconsistent, and uncorroborated testimony that the parties had entered into it (see e.g. Carthen v. Sherman, 169 A.D.3d 416, 417–418, 94 N.Y.S.3d 34 [1st Dept. 2019]).  The record contains no emails or other documentary evidence referring to the make whole agreement or its terms;  at most, the record shows that plaintiff tried to collect money from defendants under the alleged agreement.  Indeed, plaintiff's counsel conceded at oral argument that there is no evidence memorializing the make whole agreement for the more than seven years that it was supposedly in existence.

We have considered plaintiff's remaining contentions and find them unavailing.