Judge Harold Baer
Cherniak worked for Solow Realty and Development Co. LLC (Solow LLC) until 2008. In 2002, Solow, Solow LLC's president, "personally guaranteed" the 2002 Supplemental Executive Retirement Plan (SERP). Claiming that his termination without cause entitled him to SERP benefits, Cherniak sought benefits under ERISA §502(a). In addition to seeking to enforce Solow's guarantee, Cherniak alleged Solow LLC breached its agreement, independent of any ERISA plan, to compensate him if terminated without cause. District court denied dismissal of Cherniak's state law contract breach claims. Despite ERISA's general preemption of breach actions, Cherniak's claim against Solow LLC was brought in the alternative to his ERISA claim. From the pleadings the court could not determine if the SERP is an ERISA benefits plan. If not, Cherniak's claim could not be construed an ERISA §502(a) claim for benefits. In finding his claim against Solow not completely preempted the court construed Solow's guarantee as promising Cherniak benefits even if he did not receive them from the SERP. Interpretation of the SERP would only determine the amount of damages Cherniak would be entitled to for Solow's breach of his independent promise.
