UBS SECURITIES LLC, Plaintiff-res-ap, v. RAE SYSTEMS INC., Defendant-Appellant-res

8800. UBS SECURITIES LLC, Plaintiff-res-ap, v. RAE SYSTEMS INC., Defendant-Appellant-res Kaplan Rice LLP, New York (Justin M. Garbaccio of counsel), for appellant-res — Miller & Wrubel P.C., New York (Joel M. Miller of counsel), for res-res — Order, Supreme Court, New York County (Jeffery K. Oing, J.), entered on or about February 28, 2012 which denied defendant-appellant's motion to dismiss pursuant to CPLR 3211, and granted plaintiff's cross motion for summary judgment insofar as finding that the parties' agreement included a right to indemnification of plaintiff for its attorney's fees, but denied the cross motion insofar as it sought pay of a discretionary bonus, unanimously modified, on the law, to grant the motion to dismiss the complaint, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.

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8800. UBS SECURITIES LLC, Plaintiff-res-ap, v. RAE SYSTEMS INC., Defendant-Appellant-res Kaplan Rice LLP, New York (Justin M. Garbaccio of counsel), for appellant-res — Miller & Wrubel P.C., New York (Joel M. Miller of counsel), for res-res — Order, Supreme Court, New York County (Jeffery K. Oing, J.), entered on or about February 28, 2012 which denied defendant-appellant’s motion to dismiss pursuant to CPLR 3211, and granted plaintiff’s cross motion for summary judgment insofar as finding that the parties’ agreement included a right to indemnification of plaintiff for its attorney’s fees, but denied the cross motion insofar as it sought pay of a discretionary bonus, unanimously modified, on the law, to grant the motion to dismiss the complaint, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.

Contrary to the finding of the IAS court, the clause at issue, which provides that defendant “may” in its “sole discretion” pay plaintiff a bonus based on an assessment of its performance, was not a conditional promise, but an entirely discretionary clause that imposed no obligation on defendant to pay (Hunter v. Deutsche Bank AG, N.Y. Branch, 56 AD3d 274 [1st Dept 2008]). Nor did the “approval” of the bonus by defendant’s special committee create some obligation on defendant to make the wholly discretionary payment (id.; see generally Matter of Cosmopolitan Mut. Cas. Co. of N.Y. v. Monarch Concrete Corp., 6 AD2d 163, 166 [1st Dept 1958], revd 6 NY2d 383, 388 [1959]).

UBS SECURITIES LLC, Plaintiff-res-ap, v. RAE SYSTEMS INC., Defendant-Appellant-res

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