Plaintiff, an attorney, was formerly employed by defendant law firm (collectively with the other defendants, Speiser) pursuant to a written agreement executed in 2003. Plaintiff alleges that, in March 2005, Speiser orally promised him that, if he remained with the firm, he would be paid, in addition to his salary, 10% of fees earned on certain work. Plaintiff remained with the firm, but the parties’ subsequent efforts to agree on the terms of a new employment contract were unsuccessful. Ultimately, plaintiff resigned from Speiser in July 2007 and subsequently commenced this action for breach of contract and other causes of action. On plaintiffs appeal from the order granting Speiser’s pre-answer motion to dismiss pursuant to CPLR 3211 (a) (1), (5) and (7) with respect to most portions of the complaint, we modify to reinstate the cause of action for breach of contract insofar as it seeks to recover unpaid salary, and otherwise affirm.
Plaintiff’s first cause of action, for breach of contract, has three branches, the second and third of which are at issue on this appeal. The second branch seeks to recover plaintiff’s unpaid salary for the first six months of 2007; at the time, Speiser allegedly told plaintiff that it needed to suspend his salary due to cash flow problems. The motion court erred in
The remaining causes of action at issue were correctly dismissed. The third cause of action (entitled “promissory misrepresentation”) and fourth cause of action (entitled “promissory fraud”) seek recovery for Speiser’s failure to honor the alleged oral promise to pay plaintiff 10% of fees for certain work, on which promise plaintiff allegedly relied by declining another offer of employment. To the extent these causes of action seek recovery under a theory of promissory estoppel, the documentary evidence of the parties’ lengthy and fruitless negotiations establishes as a matter of law that there was no clear and unambiguous promise on which plaintiff reasonably could have relied (see Azimut-Benetti S.p.A. v Magnum Mar. Corp., 55 AD3d 483, 484 [2008]; Steele v Delverde S.R.L., 242 AD2d 414, 415 [1997]). Similarly, the third and fourth causes of action are legally insufficient to the extent they seek recovery under a theory of fraud or misrepresentation inasmuch as the documentary evidence of the parties’ negotiations negates as a matter of law the element of justifiable reliance on the alleged false promise (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]). The fifth cause of action, for quantum meruit, was correctly dismissed because, in the absence of an agreement on new terms, plaintiffs employment continued to be governed by