FILED: NEW YORK COUNTY CLERK 02/08/2012

NYSCEF DOC. NO. 38-1

INDEX NO. 652274/2011 RECEIVED NYSCEF: 02/08/2012

SUPREME COURT OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION ) ) ) ) -against) ) KASOWITZ, BENSON, TORRES ) & FRIEDMAN LLP; AARON ) MARKS; KIM CONROY, ) Defendants-Respondents. ) _________________________________________ ) GREGORY BERRY, Plaintiff-Appellant,

Index No. 652274/2011 IAS Part 3 Hon. Eileen Bransten

PRE-ARGUMENT STATEMENT

Pursuant to section 600.17 of the rules of this Court, plaintiff-appellant Gregory Berry respectfully submits the following pre-argument statement: 1. TITLE OF ACTION: As set forth in the above caption. 2. FULL NAME OF ORIGINAL PARTIES: As set forth in the above caption. 3. NAME, ADDRESS, AND TELEPHONE NUMBER OF COUNSEL FOR PLAINTIFFAPPELLANT (PRO SE): Gregory S. Berry, Esq., pro se LAW OFFICE OF GREGORY BERRY 450 Seventh Avenue, Suite 3002 New York, New York 10123 (646) 380-8115 phone 4. NAME, ADDRESS, AND TELEPHONE NUMBER OF COUNSEL FOR DEFENDANTSRESPONDENTS: Joseph A. Piesco, Esq. KASOWITZ, BENSON, TORRES & FRIEDMAN, LLP 1633 Broadway New York, NY 10019 (212) 506-1700 5. COURT AND COUNTY FROM WHICH THIS APPEAL IS TAKEN: Supreme Court, New York County (Bransten, J.S.C.).

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6. NATURE AND OBJECT OF THE CAUSE OF ACTION: Plaintiff sued for declaratory judgment that the Separation Agreement between the parties is unenforceable because (1) defendants withdrew the offer embodied in the Agreement, and never thereafter accepted the plaintiffs offer to revive and enter into the Agreement; or (2) if a contract was formed, the plaintiff was under duress or undue influence when doing so; or (3) the contract was unconscionable; or (4) the plaintiffs promises under the contract never came due because defendants never performed or tendered offer to perform their own promises that were the constructive conditions of exchange. In addition, plaintiff sued defendants for fraudulent and negligent misrepresentation inducing plaintiff to accept employment at the defendant firm (against the defendant firm); tortious interference with prospective contractual relations (against defendant Conroy); conspiracy (against defendant Marks); breach of the firms implied-in-law obligation to act ethically; and retaliation in violation of N.Y. Labor Law 740 (both against the firm); intentional infliction of emotional distress (against all defendants); and tortious interference with prospective business advantage, injurious falsehood, and prima facie tort (all against the firm). 7. RESULT REACHED IN THE COURT BELOW: The Supreme Court, New York County, granted the defendants motion to dismiss by a decision and order dated January 12, 2012, and entered in the Clerks Office of the Supreme Court, New York County, on January 13, 2012. The order dismissed the complaint in its entirety. 8. GROUNDS FOR SEEKING REVERSAL, ANNULMENT, OR MODIFICATION: A. The trial court erred by applying the wrong standard of law to the defendants CPLR 3211 motion to dismiss. In a motion to dismiss the court must take the facts as alleged in the complaint as true, and accord the benefit of every possible favorable

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inference to the non-movant. To the contrary the trial court took the facts as alleged in the defendants attorneys affirmation as true, and failed to consider the facts alleged in the complaint. B. Affidavits and affirmations are not documentary evidence under CPLR 3211(a)(1). The trial court erred in considering the defendants attorneys affirmation as evidence to be weighed against the factual allegations in the complaint. C. The trial court erred in finding the defendants had accepted the plaintiffs offer of a separation agreement. The court erred by accepting the defendants factual claim that they had mailed their acceptance to the plaintiff, when they provided no documentary evidence to that effect as required by CPLR 3211(a)(1). D. The trial court erred in finding the defendants March 31, 2011, e-mail constituted acceptance. An acceptance must be an actual acceptance that is clear and unequivocal. To the contrary, this e-mail changed the terms of the offer, and was otherwise insufficiently specific to constitute an acceptance. E. Partial and inadequate performance cannot serve as acceptance of an offer. The trial court erred by finding that defendants had accepted the offer through performance, when they never provided the plaintiff with the promised e-mail and phone service, never paid his vacation pay, and what severance payments they did disburse were 15 days late and $600 short.. At most partial performance creates an option on the offeracceptance through performance is only rendered by completing the performance of the promises. F. Regarding the defendants failure to perform its obligations under the contract, the trial court erred in finding that the Separation Agreement constituted a general

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release, rather than what it was, a contractan exchange of promisesin which the plaintiff agreed to release the defendants in return for the benefits described in the contract: phone and e-mail service, vacation pay, and severance pay, none of which did defendants perform (only the severance payment was even partially performed). The trial court erred by finding that the plaintiffs obligation to execute a release was due before the obligations of the defendants were due. To the contrary, under New York contract law, where the promised acts are capable of simultaneous performance, each duty of performance is constructively conditioned upon conditional tender of the other. G. The trial court erred by deciding questions of materiality as a question of law. To the contrary, the materiality of the promises of a contract is a question of fact that cannot be decided in a motion to dismiss. H. The defendants paid plaintiff $600 less than they promised, and began payments 15 days later than they promised. The trial court erred by finding that these breaches were immaterial. I. The trial court in its decision failed to address the $600 deficit in the severance payment. Defendants made no legal argument regarding this deficit, and provided the court with no documentary evidence to explain it. Whether the severance payment was sufficient is a question of fact that cannot be decided in this motion to dismiss. J. The trial court erred in its interpretation of the contract. Paragraph 1 of the contract states that while the plaintiff was fired on May 10, 2011, the defendants will pay his regular salary through May 15, 2011. Then in paragraph 3 the defendants promise to pay for plaintiffs accrued and unused vacation days. The trial court violated canons

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of contract term construction by concluding that the May 11 to 15 payment was intended to be the plaintiffs vacation pay. K. The trial court erred in failing to consider the dispositive issue that the defendants did not provide phone and e-mail service to the plaintiff, as the contract obligated them to do to the extent feasible. Their only defense to this failure is their claim that doing so was infeasible. This purely factual claim was unsupported by documentary evidence, and cannot be decided in a motion to dismiss. The trial court in its decision did not consider the phone and e-mail service at all, and the defendants failure to provide those services requires the denial of the motion to dismiss. L. While a partys representation by counsel is one factor of a procedural unconscionability analysis, the presence of counsel is not determinative. In this case, where the defendants attorney refused even to discuss the agreement with plaintiffs attorney, the contract is procedurally unconscionable even though plaintiff was nominally represented by counsel. The trial court erred by focusing exclusively on the fact that plaintiff had retained an attorney. M. Such other issues as may become apparent upon review of the papers on appeal. 9. RELATED ACTIONS: None.

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Dated: New York, New York February 8, 2012 Respectfully submitted, LAW OFFICE OF GREGORY BERRY By: /s/ Gregory S. Berry Gregory S. Berry

Gregory S. Berry, Esq., pro se 450 Seventh Avenue, Suite 3002 New York, New York 10123 (646) 380-8115 phone (646) 514-5827 facsimile gberry@gregoryberrylaw.com e-mail

TO:

CLERK OF THE SUPREME COURT NEW YORK COUNTY 60 Centre Street New York, NY 10007 Attorney for defendants: Joseph A. Piesco, Esq. Kasowitz Benson Torres & Friedman 1633 Broadway New York, New York 10019

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