Omari Ramirez, Plaintiff–Respondent, v. LLC (2022)

Gardner Skelton PLLC, New York (Mark S. Pincus of counsel), for appellant.

Bailey Duquette P.C., New York (David I. Greenberger of counsel), for respondent.

Order, Supreme Court, New York County (Andrew Borrok, J.), entered March 25, 2022, which denied defendant's motion to dismiss the first cause of action for breach of contract, unanimously affirmed, with costs.

Defendant failed to establish, as a matter of law, that plaintiff waived his right to be compensated in accordance with the terms of a bonus provision in the parties' employment agreement.  The evidence it submitted to show that plaintiff had accepted a bonus amount lower than that to which he was entitled did not demonstrate a clear

manifestation of intent to relinquish the contractual right (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006];  Kamco Supply Corp. v. On the Right Track, LLC, 149 AD3d 275, 280–281 [2d Dept 2017], lv dismissed 30 NY3d 1036 [2017] ).