SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

932 

CA 15-00356 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. 

 

THOMAS O. FITZGERALD, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

SMS/800, INC., DEFENDANT-APPELLANT. 

 

LITTLER MENDELSON, P.C., ROCHESTER (IVAN NOVICH OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

HARTER SECREST & EMERY LLP, ROCHESTER (JEFFREY J. CALABRESE OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Matthew

A. Rosenbaum, J.), entered May 15, 2014. The order denied defendant’s

motion to, inter alia, dismiss the amended complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting that part of the motion

seeking dismissal of the second cause of action insofar as it seeks a

declaration, and as modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this action following his

termination as President and Chief Executive Officer of defendant. In

the original complaint, plaintiff alleged a single cause of action for

breach of the parties’ employment agreement (Agreement). Defendant

moved to dismiss the complaint or stay the action pending arbitration

based upon the arbitration provision of the Agreement. Supreme Court

denied the motion. Plaintiff amended the complaint to add three

causes of action, and defendant moved for leave to renew its motion to

dismiss the breach of contract cause of action based upon evidence

relating to the negotiation of the Agreement. Defendant also sought

to dismiss the three causes of action added in the amended complaint

and to compel arbitration. The court’s denial of that second motion

(hereafter, motion) is the subject of this appeal.

The court properly denied that part of the motion seeking leave

to renew inasmuch as defendant failed to provide a reasonable

justification for its failure to present facts relating to the

negotiation of the Agreement in support of the original motion (see

CPLR 2221 [e] [3]; Robinson v Consolidated Rail Corp., 8 AD3d 1080,

1080). Further, defendant’s submissions in support of renewal were

not “new facts . . . that would change the prior determination” (CPLR

2221 [e] [2]; see People ex rel. Seals v New York State Dept. of Corr.

Servs., 32 AD3d 1262, 1263).
-2- 932 

CA 15-00356 

With respect to that part of the motion seeking dismissal of the

causes of action added in the amended complaint, we agree with

defendant that the second cause of action, insofar as it seeks

declaratory relief, is duplicative of the breach of contract cause of

action (see Apple Records v Capital Records, 137 AD2d 50, 54). We

therefore modify the order by dismissing that part of the second cause

of action. Contrary to defendant’s further contention, however, we

conclude that the court properly denied that part of the motion

seeking dismissal of the second cause of action insofar as it seeks

specific performance of the Agreement. Although under the law of

Delaware, which governs the interpretation of the Agreement, contracts

for personal services generally will not be specifically enforced (see

Northern Delaware Indus. Dev. Corp. v E.W. Bliss Co., 245 A2d 431, 434

[Del Ch]), plaintiff has asserted a claim for specific performance

sufficient to survive defendant’s motion to dismiss (see generally

NAMA Holdings, LLC v Related World Mkt. Ctr., LLC, 922 A2d 417, 437-

438 [Del Ch]). In addition, accepting the facts alleged in the

amended complaint to be true and affording plaintiff the benefit of

every favorable inference (see J.P. Morgan Sec. Inc. v Vigilant Ins.

Co., 21 NY3d 324, 334), we conclude that the court properly denied

that part of the motion seeking dismissal of the causes of action

alleging defamation (see Kamchi v Weissman, 125 AD3d 142, 157-159),

and seeking injunctive relief (see Elow v Svenningsen, 58 AD3d 674,

675).

Finally, we conclude that the court properly denied that part of

the motion seeking to compel arbitration. Although the Agreement

contains a provision reflecting the parties’ intention to arbitrate,

it also makes repeated references to courts and judicial remedies. We

agree with plaintiff, therefore, that if the parties intended to

arbitrate all of their disputes, the references to judicial

intervention in the Agreement “either mean[] nothing or mislead[]”

(Kuhn Constr., Inc. v Diamond State Port Corp., 990 A2d 393, 397

[Del]). Thus, the court properly declined to enforce the Agreement

inasmuch as it “unclearly or ambiguously reflects the intention to

arbitrate” (id. at 396). 

Entered: October 2, 2015 Frances E. Cafarell

Clerk of the Court