Ophthalmic Surgeons, Ltd. v. Paychex, Inc.

United States Court of Appeals
For the First Circuit

No. 09-2291

OPHTHALMIC SURGEONS, LTD.,

Plaintiff, Appellant,

v.

PAYCHEX, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Ripple,* and Lipez,
Circuit Judges.

Daniel V. McKinnon, with whom McKinnon & Harwood, B. Jean
Rosiello, and MacFadyen, Gescheidt & O'Brien, were on brief for
appellant.
Robert K. Taylor, with whom Partridge Snow & Hahn LLP, was on
brief for appellee.

January 31, 2011

*
Of the Seventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. This case evidences the

importance of careful contract drafting. In this breach of

contract case, the appellee's liability depends primarily on

whether one sentence in the contract is clear and unambiguous.

Specifically, appellant, Ophthalmic Surgeons, Ltd. ("OSL"), alleges

that Paychex, Inc. ("Paychex"), its provider of direct deposit

payroll services, breached its obligations under a written

agreement when, over a period of six years and without objection

from appellant, it paid an OSL employee $233,159 more than her

authorized annual salary of $33,280. For the reasons explained

below, we affirm the district court's grant of summary judgment in

favor of Paychex.

I. Facts and Procedural History

OSL, a Rhode Island corporation, is a medical practice

specialized in ophthalmology. Dr. William J. Andreoni has worked

at OSL as a physician and surgeon for twenty-six years. He has

been part owner of OSL since 1986 and became the sole owner of the

practice in 1993. During the mid-1980s, OSL began to grow.

Therefore, the company sought to find a better way to administer

its payroll. To this end, in 1989, OSL entered into an oral

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contract with Paychex1 for payroll processing services (the "1989

Agreement").2

In 1994, OSL and Paychex entered into a written contract

pursuant to which Paychex was to provide direct deposit payroll

services (the "1994 Agreement"). The contract is governed by New

York law. The relevant parts of the agreement state the following:

2. SERVICES TO BE PERFORMED. In addition
to the services Paychex performs for the
Client as a payroll client, client hereby
employs Paychex to process direct deposit
payroll in compliance with Automated Clearing
House regulations. One business day prior to
the client's payroll check date, Paychex is
authorized to draw from Client's bank account
as specified by Client, such amounts as are
necessary to pay its employees. Such amounts
are to be held in an account established by
Paychex until check date when funds
availability are [sic] due to the employee(s).

3. CLIENT'S RESPONSIBILITY. The Client
agrees to accept the following obligations and
responsibilities:
A. To execute all necessary
documentation so that Paychex may withdraw
funds from the Client's bank account to
process direct deposit payroll.
B. To execute any other documents
which may be required for Paychex to perform
its responsibilities under this Agreement.

1
Paychex is a New York corporation, based in New York, with
branch offices in several states, including Rhode Island.
2
Dr. Andreoni alleges that at the time of the formation of this
original contract, he met with a Paychex representative who assured
him that he would not have to worry about payroll. Dr. Andreoni
understood from this representation that Paychex would inform him
if anything warranted his attention. This is extrinsic evidence
that OSL alleges goes to the parties' intent.

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 C. To have available in Client's bank
account sufficient funds for Paychex to make
the withdrawals provided for by this
Agreement.
. . .
5. LIMITATION OF LIABILITY. Paychex shall
only be liable for its own negligence and not
the negligence of any other person or entity
which provides services as a result of
Paychex's performance of its obligations under
this Agreement.

(Emphasis added in ¶ 2.) The contract also contains a merger

clause stating that "[t]he Client acknowledges that there have been

no other representations or warranties made by Paychex to the

Client which are not set forth in this Agreement."

Paychex's Rhode Island office handles approximately 7,000

clients. Paychex alleges that it performs its payroll processing

services based on the information its clients provide. Each new

client, through its designated payroll contact, provides Paychex

with the relevant employee information including names, addresses,

social security numbers and salary information. Paychex employees

load this information onto a computer and use this information to

process the client's payroll. Paychex submits reports and other

documents to its clients on a regular basis. These reports include

payroll journals and checks which are sent to the client prior to

the date the checks will be paid to the employees. Because Paychex

charges its clients per check processed, invoices to clients

indicate how many paychecks were issued per pay period. Finally,

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Paychex provides quarterly reports, yearly reports and W-2 earnings

statements to all clients.

In 1984, Carleen Connor began working for OSL as a

technician who earned $7.00 per hour. She later became a licensed

optician and the office manager, at which point she earned $16.00

per hour. It is undisputed that, from the mid-1990s until her

termination in 2006, Connor handled payroll for OSL and was its

office manager and designated payroll contact.

Paychex contacted Connor regularly to inquire about OSL's

payroll. As Dr. Andreoni was aware, Connor would often call in

more than one week's worth of payroll at a time. OSL alleges that

during the years that Connor requested unearned paychecks, 2001 to

2006, its employees were paid on a weekly basis.3 In 2001, Connor

began requesting that Paychex direct deposit into her bank account

more money than required to pay her annual salary. During the pay

periods when Connor requested more than her base pay, she requested

that Paychex split her pay into two direct deposit payments. At

some point, a Paychex representative told Connor that issuing her

more than one payment for a given pay period was more expensive for

OSL. Connor stated that she wanted to split her checks because a

single larger check would result in a larger tax withholding.

Paychex did not contact anyone at OSL to verify Connor's request.

3
During some years, OSL asked Paychex to run payroll using a bi-
weekly pay period.

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 It is undisputed that between 2001 and 2006, Connor

directed Paychex to pay her, and Paychex did in fact pay her, a

total of $233,159 more than her authorized annual salary. It is

also undisputed that Paychex sent to OSL reports confirming all

payments made. These reports were sent to Connor's attention and

Dr. Andreoni alleges that he saw none of these reports because they

were not sent directly to his attention. OSL discovered the

unauthorized payments when another employee took over Connor's

duties.

On October 30, 2007, OSL and Dr. Andreoni, as co-

plaintiffs, filed a breach of contract action in Rhode Island

Superior Court against Paychex and Chase Bank, USA, NA. On

November 14, 2007, Paychex removed the action to the United States

District Court for the District of Rhode Island based on diversity

jurisdiction in accordance with 28 U.S.C. § 1332.

On December 4, 2007, Paychex filed a motion to dismiss

or, in the alternative, for a stay pending arbitration. On

February 19, 2008, the district court denied the motion for a stay

pending arbitration and denied the motion seeking to dismiss count

one seeking damages for breach of contract, but granted the motion

to dismiss count two seeking punitive damages. The court also

dismissed Dr. Andreoni as an improper party plaintiff. On May 21,

2009, the parties stipulated to the dismissal of the claims against

defendant Chase Bank, USA, NA.

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 On January 12, 2009, Paychex filed a motion for summary

judgment. On February 25, 2009, OSL filed a response, to which

Paychex filed a reply on March 18, 2009. On September 9, 2009, the

district court issued summary judgment in favor of Paychex. OSL

filed a timely notice of appeal on September 17, 2009. This court

has jurisdiction pursuant to 28 U.S.C. § 1291.

II. Discussion

A. Standard of Review

"We review a district court's grant of summary judgment

de novo." Fed. Ins. Co. v. Commerce Ins. Co., 597 F.3d 68, 70 (1st

Cir. 2010). The court views the facts and draws all reasonable

inferences in favor of the nonmoving party. Id. Granting summary

judgment is appropriate if the moving party "shows that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(a).4

4
On April 28, 2010, the Supreme Court of the United States
approved amendments to Federal Rule of Civil Procedure 56,
effective December 1, 2010.

The standard for granting summary judgment remains
unchanged. The language of subdivision (a) continues to
require that there be no genuine dispute as to any
material fact and that the movant be entitled to judgment
as a matter of law. The amendments will not affect
continuing development of the decisional law construing
and applying these phrases.

Fed. R. Civ. P. 56 advisory committee's note to 2010 amendment.
Because the amendment does not constitute a substantive change, we
find that referring to the amended rule is just and practicable.
Godin v. Schencks, No. 09-2324, 2010 WL 5175180, at *9 n.19 (1st
Cir. Dec. 22, 2010).

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 B. New York Law Governing Contract Interpretation

When considering a motion for summary judgment in a

contract interpretation case, New York law requires the court to

determine whether the contract is unambiguous with respect to the

disputed question. Law Debenture Trust Co. of N.Y. v. Maverick

Tube Corp., 595 F.3d 458, 465 (2d Cir. 2010). The determination of

whether a contract provision is ambiguous is an issue of law. Id.

To determine whether a contract is ambiguous, the court

must "'look[] within the four corners of the document, not to

outside sources.'" JA Apparel Corp. v. Abboud, 568 F.3d 390, 396

(2d Cir. 2009) (quoting Kass v. Kass, 696 N.E.2d 174, 180 (N.Y.

1998)). Courts must review the entire contract and "[p]articular

words should be considered, not as if isolated from the context,

but in the light of the obligation as a whole and the intention of

the parties as manifested thereby." Riverside S. Planning Corp. v.

CRP/Extell Riverside, L.P., 920 N.E.2d 359, 363 (N.Y. 2009)

(citation and internal quotation marks omitted).

Contract terms are ambiguous if the contract "could

suggest 'more than one meaning when viewed objectively by a

reasonably intelligent person who has examined the context of the

entire integrated agreement and who is cognizant of the customs,

practices, usages and terminology as generally understood in the

particular trade or business.'" Fabozzi v. Lexington Ins. Co., 601

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F.3d 88, 90 (2d Cir. 2010) (quoting Lightfoot v. Union Carbide

Corp., 110 F.3d 898, 906 (2d Cir. 1997)) (applying New York law).

C. The Direct Deposit Agreement

The relevant language of the 1994 Agreement is "Paychex

is authorized to draw from Client's bank account as specified by

Client, such amounts as are necessary to pay its employees." OSL

posits that the district court erred by finding that this sentence

was clear and unambiguous and by failing to give meaning to the

second operative clause -- "such amounts as are necessary to pay

its employees." Specifically, OSL states that the second operative

clause is ambiguous because it can be interpreted as either

creating a duty for Paychex to oversee whether the withdrawals are

"necessary" to pay OSL's employees or allowing Paychex to withdraw

from the client's account "blindly" as long as the designated

payroll contact so ordered. Paychex, on the other hand, states

that OSL's interpretation of the contract language would completely

negate the specific authorization to withdraw funds "as specified

by Client" by requiring Paychex to question whether the requested

payroll payments are "necessary" even when the client authorized

them. According to Paychex, the simplest reading of the agreement

is that Paychex is authorized to withdraw from OSL's account only

what OSL specifies is necessary to make the payroll payments that

OSL requested and no more.

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 We find that the relevant contract language clearly and

unambiguously establishes that it is the Client who has to specify

the amounts that Paychex is authorized to withdraw from the

Client's bank account. We read the second operative clause --

"such amounts as are necessary to pay its employees" -- to modify

the first and to create a limitation on the amount of money that

Paychex is authorized to withdraw from the Client's account and not

as creating an affirmative responsibility for Paychex to verify the

amounts the Client specifies.

We need not consider OSL's extrinsic evidence regarding

the conversation Dr. Andreoni allegedly had with a Paychex

representative in 1989 because we find that the provisions of the

1994 Agreement are clear and unambiguous. Law Debenture Trust Co.,

595 F.3d at 466. New York law provides that "'extrinsic and parol

evidence is not admissible to create an ambiguity in a written

agreement which is complete and clear and unambiguous upon its

face.'" S. Rd. Assocs., LLC v. Int'l Bus. Machs. Corp., 826 N.E.2d

806, 809 (N.Y. 2005) (citation omitted).

We must, however, examine the entire contract and view

the relevant language "in the light of the obligation as a whole

and the intention of the parties as manifested thereby." Riverside

S. Planning Corp., 920 N.E.2d at 363. OSL argues that the relevant

contract language describes one of Paychex's duties under the

contract because it appears in the paragraph entitled "Services to

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be Performed." Specifically, OSL alleges that the language "such

amounts as are necessary to pay its employees" creates an

obligation for Paychex to verify that the amounts that it withdraws

each pay period match the employees' salaries. OSL also asserts

that Paychex was responsible for verifying the amounts that Connor

specified because paragraph three ("Client's Responsibility") does

not list verifying such amounts as one of OSL's responsibilities.

Although the 1994 Agreement is not a model of a

comprehensive contract, we do not view the fact that the section

titled "Client's Responsibility" does not list verifying the

amounts that Paychex is authorized to withdraw as indicating that

this task is Paychex's responsibility. If we examine the whole

agreement, other sections of the contract create obligations with

which OSL must comply. For example, in paragraph four, "Client's

Default," the parties create a duty for OSL to reimburse Paychex

for all fees that it incurs as a result of OSL's failure to have

sufficient funds in its accounts. Also, OSL's payment obligations

are addressed in a separate paragraph. The fact that the "Client's

Responsibility" paragraph does not list every one of OSL's

obligations is not dispositive here.

After examining the contract as a whole, we conclude that

the writing evidences the intent to agree that it was OSL's

responsibility to specify the amounts that Paychex was authorized

to withdraw from the accounts.

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 D. Connor's Authority

Although we have found that the contract creates no

obligation for Paychex to verify the information that the payroll

contact provides, we must now examine whether agency law creates

such an obligation. OSL argues that the district court erred by

ignoring a disputed issue of material fact regarding Connor's lack

of apparent authority to "specify" the withdrawal of payments

adding up to more than her authorized weekly salary. We find that

OSL's argument is without merit.5

A corporation must, by necessity, act through its agents.

Kirschner v. KPMG LLP, 15 N.Y.3d 446, 465 (2010) (discussing

general principles of agency and corporations). It is undisputed

that Connor was in fact authorized to handle payroll and was the

designated payroll contact assigned to communicate with Paychex.

Connor's actual authority, however, did not extend to embezzling

funds by authorizing the issuance of paychecks in amounts in excess

5
Although the existence of apparent authority is normally a
question of fact that courts do not resolve on a motion for summary
judgment, here we find that even viewing the facts in the light
most favorable to OSL, it is clear that OSL acted in a manner that
created apparent authority in Connor. See Moreau v. Local Union
No. 247, Int'l Bhd. of Firemen and Oilers, AFL-CIO, 851 F.2d 516,
520 (1st Cir. 1988) (affirming district court's grant of summary
judgment based on its conclusion that the local unions had apparent
authority to enter into binding side agreements); Minskoff v. Am.
Express Travel Related Servs. Co., Inc., 98 F.3d 703, 708-09 (2d
Cir. 1996) (recognizing that determining apparent authority
involves a question of fact not usually resolved on a motion for
summary judgment, yet finding sufficient evidence to determine that
the agent had apparent authority as to use of a credit card).

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of her salary as this is not what OSL, the principal, instructed

her to do. The question remains, however, as to whether Connor was

cloaked with apparent authority6 such that Paychex could have

reasonably relied upon her authority to issue additional paychecks

in her name. Restatement (Third) of Agency § 2.03 cmt. a ("Apparent

authority may survive the termination of actual authority or of an

agency relationship.").7 OSL argues that Connor had no apparent

authority where OSL, as principal, did not act in a way that gave

the appearance that Connor had the authority to order the paychecks

at issue here and that Paychex is therefore liable for making the

unauthorized payments.

6
Under principles of agency, "[a]pparent authority may exist in
the absence of authority in fact . . . ." Greene v. Hellman, 412
N.E.2d 1301, 1306 (N.Y. 1980). Actual authority refers to the
manifestation that the principal makes to the agent. Id.;
Restatement (Third) of Agency § 2.01 cmt. c ("Actual authority is
a consequence of a principal's expressive conduct toward an agent,
through which the principal manifests assent to be affected by the
agent's action, and the agent's reasonable understanding of the
principal's manifestation."). Apparent authority arises when the
agent deals with third parties and refers to the manifestation that
the principal makes to the third party. Greene, 412 N.E.2d at
1306; Restatement (Third) of Agency § 2.03 cmt. c ("Apparent
authority holds a principal accountable for the results of
third-party beliefs about an actor's authority to act as an agent
when the belief is reasonable and is traceable to a manifestation
of the principal.").
7
We find it appropriate to cite the Restatement (Third) of Agency
because the New York Court of Appeals recently relied on it when
discussing traditional agency principles. See Kirschner, 15 N.Y.
3d at 468-69. We also note that New York courts have consistently
relied on the Restatement (Second) of Agency. See, e.g., Standard
Funding Corp. v. Lewitt, 678 N.E.2d 874, 877 (N.Y. 1997); Hallock
v. State, 474 N.E.2d 1178, 1181 (N.Y. 1984); Greene, 412 N.E.2d at
1305-06.

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 We recognize that "[t]he mere creation of an agency for

some purpose does not automatically invest the agent with 'apparent

authority' to bind the principal without limitation." Ford v.

Unity Hosp., 299 N.E.2d 659, 664 (N.Y. 1973). Under New York law,

apparent authority can only be created through "'words or conduct

of the principal, communicated to a third party'" such that a third

party can reasonably rely on the "'appearance and belief that the

agent possesses authority to enter into a transaction.'" Standard

Funding Corp. v. Lewitt, 678 N.E.2d 874, 877 (N.Y. 1997) (quoting

Hallock v. State, 474 N.E.2d 1178, 1181 (N.Y. 1984)) (emphasis

added).

We find that Paychex's reliance was reasonable and that

Connor had apparent authority because OSL put Connor in a position

where it appeared that she had the power to authorize additional

paychecks. Telenor Mobile Commc'ns AS v. Storm LLC, 584 F.3d 396,

411 (2d Cir. 2009) ("Under New York law, an agent has apparent

authority if 'a principal places [the] agent in a position where it

appears that the agent has certain powers which he may or may not

possess.'") (citation omitted). In her position as the designated

payroll contact, Connor often called in more than one week's worth

of payroll at a time without objection from OSL. Further, Dr.

Andreoni admits that, after 1989, he had no further contact with

Paychex. Even if we assume that, in 1989, the purported

conversation between Dr. Andreoni, as agent of OSL, and a

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representative of Paychex occurred8 and that during that

conversation, Dr. Andreoni informed Paychex that he wanted OSL

employees to be paid weekly for fifty-two weeks each year, OSL's

argument fails.9 This conversation does not expressly convey a

limitation on Connor's authority, especially where the conversation

did not occur in connection with the formation of the 1994

Agreement. Further, it was reasonable for Paychex to assume its

clients' needs might change and that the payroll contact would be

authorized to convey such a change.

Paychex's reliance was also reasonable because of OSL's

failure to object to the transactions that Connor authorized.

A principal's inaction creates apparent
authority when it provides a basis for a third
party reasonably to believe the principal
intentionally acquiesces in the agent's

8
We briefly consider OSL's parol evidence, not to alter the terms
of the contract, but with respect to Paychex's obligations under
principles of agency. See Wooster v. Sherwood, 25 N.Y. 278 (1862)
(parol evidence admissible where it did not tend to vary or change
the written contract); McCormack Motor Sales v. Hayes, 346 N.Y.S.2d
460, 460 (App. Div. 1973) (finding, in an action to recover
balances due on contracts, that the parol evidence rule did not
preclude proof of defendant's claims with respect to whether the
agent had apparent authority). We refer to New York law regarding
the admissibility of parol evidence because it is a rule of
substantive contract law. See Wheeler v. Blumling, 521 F.3d 1, 4
(1st Cir. 2008) (noting that the parol evidence rule is a rule of
substantive law); Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1177
(2d Cir. 1995) (concluding that the parol evidence rule is "a rule
of substantive contract law, not a rule of evidence").
9
OSL argues that these instructions limit Connor's authority such
that she could only order 52 paychecks a year for each employee.
As such, Paychex should have questioned Connor when she ordered
more than 52 paychecks for herself.

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 representations or actions. . . . If the
third party has observed prior interactions
between the agent and the principal, the third
party may reasonably believe that a subsequent
act or representation by the agent is
authorized because it conforms to the prior
pattern observed by the third party. The
belief is thus traceable to the principal's
participation in the pattern and failure to
inform the third party that no inferences
about the agent's authority should be based
upon it.

Restatement (Third) of Agency § 3.03 cmt. b (internal citation

omitted).10 In Minskoff v. American Express Travel Related

Services. Co., Inc., 98 F.3d 703 (2d Cir. 1996), the Second Circuit

found such inaction or omission sufficient to create apparent

authority in an agent who was fraudulently using her employer's

credit card. Id. at 709-10.

We find the Second Circuit's reasoning in Minskoff

persuasive.11 Minskoff involved an office assistant, Susan Schrader

10
We find it reasonable to infer that the New York Court of
Appeals would adopt the Restatement (Third) of Agency with respect
to this issue because apparent authority based on a principal's
inaction is similar to the principle of estoppel to deny apparent
authority that the Second Circuit applied in Minskoff v. American
Express Travel Related Services Co., Inc. 98 F.3d 703, 708 (2d
Cir. 1996) (citing Restatement (Second) of Agency § 8b) (applying
New York Law regarding apparent authority); see also Restatement
(Third) of Agency Introduction (noting that this Restatement deals
with situations where an agent is claimed to have acted without the
principal's consent and acknowledging that the legal consequences
of such appearances of agency are governed principally by apparent
authority and to a lesser degree estoppel).
11
Although Minskoff involved the application of the Truth in
Lending Act, 15 U.S.C. § 1601 et seq., which explicitly defines
"unauthorized use" of a credit card, the court determined that
Congress contemplated "primary reliance on background principles of

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Blumenfeld, who was explicitly responsible for the personal and

business affairs of a company's president and CEO. Id. at 706.

Her duties included screening her employer's mail, reviewing credit

card statements, and forwarding these statements to the company's

bookkeepers for payment. Id. Less than a year after she began

working for the company, Blumenfeld fraudulently requested that

American Express issue an additional credit card in her name for

the company's corporate account. Id. After discovering the fraud

over one year later, the company filed a suit to recover the money

the company had paid in connection with the unauthorized charges

and sought a declaration that it was not liable for the outstanding

balances. Id. at 707. The court held that, pursuant to the Truth

in Lending Act, Blumenfeld acted without actual, implied, or

apparent authority when she forged the credit card applications.

Id. at 708 (finding that there was no apparent authority to order

an additional credit card where Congress intended that cases

involving charges incurred due to involuntary card transfers are

unauthorized under the Truth in Lending Act). However, the court

held that there was apparent authority for Blumenfeld's subsequent

use of the fraudulently obtained credit card where the company

failed to examine credit card and bank statements documenting the

fraudulent charges. Id. at 709-10 ("A cardholder's failure to

agency law in determining the liability of cardholders for charges
incurred by third-party card bearers." 98 F.3d at 708 (internal
quotation marks and citation omitted).

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examine credit card statements that would reveal fraudulent use of

the card constitutes a negligent omission that creates apparent

authority for charges that would otherwise be considered

unauthorized under the [Truth in Lending Act].").

We find Minskoff directly applicable to these

circumstances. Like the company in Minskoff, OSL failed to examine

the payroll reports that Paychex sent. That these reports were

sent to Connor's attention is not dispositive where OSL, as

principal, did not convey any instructions to Paychex that it

should do otherwise. Further, OSL's failure to object to the

"extraordinary" transactions would reasonably convey to a third

party that it acquiesced in its agent's acts. Cf. id. at 710

(noting that the company's omissions created a continuing

impression that nothing was wrong with the accounts); Bus.

Integration Servs., Inc. v. AT&T Corp., 251 F.R.D. 121, 128

(S.D.N.Y. 2008) ("Applying the general principles of agency, we

find that [the principal's] failure to respond in any way to the

allegedly unauthorized disclosure [of its agent], . . . of which it

obviously has been aware for a long time, justifies the 'reasonable

assumption' [of assent]. . . . Silence may constitute a

manifestation when . . . a reasonable person would express dissent

to the inference that other persons will draw from silence.")

(internal quotation marks and citations omitted).

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 We find that by placing Connor in a position where it

appeared that she had authority to order additional checks and by

acquiescing to Connor's acts through its failure to examine the

payroll reports, OSL created apparent authority in Connor such that

Paychex reasonably relied on her authority to issue the additional

paychecks.

E. Implied Covenant of Good Faith and Fair Dealing

We understand OSL's final claim against Paychex to be

that Paychex breached the implied covenant of good faith and fair

dealing when it negligently failed to check Connor's request for

paychecks that amounted to more than her allowed annual salary. We

find that Paychex did not breach the implied covenant.

New York law recognizes the existence of an implicit

covenant of good faith and fair dealing. See Tractebel Energy

Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 98 (2d Cir.

2007); Kalisch-Jarcho, Inc. v. City of New York, 448 N.E.2d 413,

416 (N.Y. 1983) (citing Restatement (Second) of Contracts § 205).

"Every contract imposes upon each party a duty of good faith and

fair dealing in its performance and its enforcement." Restatement

(Second) of Contracts § 205. "[L]ack of diligence and slacking

off" has been recognized as bad faith. Id. cmt. d.

Good faith is ordinarily an "excluder" – it typically is

not explicitly defined, but is defined in contrast to examples of

bad faith. Robert S. Summers, The General Duty of Good Faith – Its

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Recognition and Conceptualization, 67 Cornell L. Rev. 810, 820

(1982); Restatement (Second) of Contracts § 205 cmt. d; but see

U.C.C. § 1-201(b)(20) (defining "good faith" as "honesty in fact in

the conduct or transaction concerned"). New York courts have,

however, recognized that the covenant of good faith and fair

dealing "embraces a pledge that neither party shall do anything

which will have the effect of destroying or injuring the right of

the other party to receive the fruits of the contract." Tractabel

Energy Mktg., Inc., 487 F.3d at 98 (quoting Dalton v. Educ. Testing

Serv., 663 N.E.2d 289, 291 (N.Y. 1995)). Further, "[t]he implied

covenant of good faith encompasses 'any promises which a reasonable

person in the position of the promisee would be justified in

understanding were included' in the agreement . . . ." 1-10

Industry Assocs., LLC v. Trim Corp. of Am., 747 N.Y.S.2d 29, 31

(App. Div. 2002) (internal citations omitted). Courts may not,

however, use the covenant to imply an obligation that "would be

inconsistent with other terms of the contractual relationship."

Dalton, 663 N.E.2d at 292 (internal quotation marks and citation

omitted).

We do not think the facts of this case constitute a

breach of the implied covenant of good faith. First, we have found

that Paychex has not breached any explicit contractual obligation.

Second, Paychex complied with its duty of good faith by regularly

sending reports. That Dr. Andreoni, OSL's sole owner, failed to

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check on OSL's employee or to specify to Paychex that the reports

should be sent to his attention does not suggest that Paychex

breached the implied covenant of good faith. OSL was in the best

position to monitor its finances and its employees. If there is

any negligence to be found in this case, it is OSL's own negligence

in failing to properly supervise Connor. Cf. Minskoff, 98 F.3d at

709-10 (stating that company's failure to examine its credit card

statements that would reveal employee's fraudulent use constituted

a negligent omission); Kirschner, 15 N.Y.3d at 465 ("The risk of

loss from the unauthorized acts of a dishonest agent falls on the

principal that selected the agent.") (internal quotation marks and

citations omitted).

III. Conclusion

For the reasons stated, we affirm the district court's

grant of summary judgment in appellee's favor.

Affirmed.

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