Commercial Lubricants, LLC v. Safety-Kleen Systems, Inc.

Filing 103

MEMORANDUM & ORDER: The Defendant's motion for partial summary judgment is granted. Plaintiff's claims for unjust enrichment (count eight), breach of the implied covenant of good faith and fair dealing (count nine), and quantum merui t (count ten) are dismissed. Trial in this case is scheduled to begin on October 18, 2021. The parties shall appear for a final pretrial conference before the undersigned on October 8, 2021 at 3:00 p.m. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 9/22/2021. (Guy, Alicia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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COMMERICAL LUBRICANTS, LLC,
MEMORANDUM & ORDER
14-CV-7483(EK)(RLM)

Plaintiff,
-againstSAFETY-KLEEN SYSTEMS, INC,
Defendant.
------------------------------------x
ERIC KOMITEE, United States District Judge:

Plaintiff Commercial Lubricants, LLC claims that
Defendant Safety-Kleen Systems breached certain agreements
related to the collection and resale of what the parties call
“waste oil.”

Safety-Kleen now moves for summary judgment on

three of Commercial Lubricants’ claims, all of which arise out
of one contract — the Used Oil Incentive Agreement dated March
18, 2013 (the “Waste Oil Agreement”).

For the reasons that

follow, I grant Defendant’s motion.
I.

Background

The Court assumes familiarity with the underlying
facts and long procedural history of this case, as set forth in
prior decisions. 1

The following background is relevant to the

Several prior decisions were issued by the Honorable Margo K. Brodie,
the judge previously assigned to this case. See Order dated Aug. 8, 2017,
ECF No. 51 (granting in part and denying in part Defendant’s motion for
partial summary judgment as to Plaintiff’s claims, denying Defendant’s motion
for summary judgment as to Defendant’s counterclaims, and reserving judgment
1

instant motion.

These facts are drawn from Defendant’s Rule

56.1 Statement of Material Facts, Plaintiff’s Rule 56.1
Counterstatement, and their underlying exhibits.

I view the

facts in the light most favorable to Plaintiff, the nonmoving
party.

Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.

2005).
The parties are involved in the recycling and eventual
resale of waste oil (or “used” oil) of various types — including
motor oil, hydraulic fluid, and transmission fluid — in the New
York metropolitan area. 2

Commercial Lubricants is a recycled oil

distributor; it is in the business of selling lubricants to
customers like the Metropolitan Transportation Authority of New
York City, car dealerships, and others. 3

Safety-Kleen is an oil

on Plaintiff’s claim for breach of the Waste Oil Agreement); Order dated Oct.
17, 2018, ECF No. 59 (granting Defendant’s motion for partial summary
judgment on Plaintiff’s claim that Commercial Lubricants “wrongfully
attempted to repudiate the Waste Oil Agreement by letter dated December 16,
2014,” but noting that Plaintiff may be able to pursue post-termination
damages on “alternative legal theories other than based on the contract”);
Order dated June 14, 2019, ECF No. 74 (granting motion to amend the complaint
to add four claims: (i) breach of the Waste Oil Agreement for oil collected
between October 2014 and February 14, 2015 (i.e., pre-termination);
(ii) breach of the covenant of good faith and fair dealing in the Waste Oil
Agreement, for the period thereafter; (iii) unjust enrichment; and (iv)
quantum meruit); Order dated Nov. 25, 2019, ECF No. 84 (denying Defendant’s
motion to dismiss the new claims).
2 Defendant’s 56.1 Statement of Material Facts (“Def. 56.1”) ¶¶ 1-2, ECF
No. 99-1; Exhibit D to Def. 56.1, Deposition of Joseph Ioia 55:7-14, ECF No.
99-5.

Waste Oil Agreement at 1, ECF No. 44-5; Def. 56.1 ¶ 2; Exhibit I to
Def. 56.1, Deposition of Curt Knapp 33:21-25, ECF No. 99-9 (Commercial
Lubricants supplied “heavy duty engine oil” to the MTA); Exhibit H to
Plaintiff’s 56.1 Counterstatement of Material Facts (“Pl. 56.1
3

2

“re-refiner,” in the business of “waste oil recovery.” 4

It

retrieves used oil from entities like Commercial Lubricants’
customers, and sells the re-refined (or “cleaned”) oil back to
distributors. Waste Oil Agreement at 1-2.
The Waste Oil Agreement was entered into between
Safety-Kleen and New York Commercial Lubricants, Inc. (“NYCL”) —
a predecessor to Commercial Lubricants — in March 2013.
Oil Agreement at 1.

Waste

Approximately four months later, in July

2013, Commercial Lubricants purchased its oil-distribution
business from NYCL, along with the right to do business under
the name “Metrolube.” 5

Through that transaction, Commercial

Lubricants stepped into NYCL’s shoes under the Waste Oil
Agreement. 6
Under the Waste Oil Agreement, Commercial Lubricants
was obligated to “exclusively promote” Safety-Kleen’s rerefining services to its customers and use its “best efforts” to
generate new customers for Safety-Kleen.
1.

Waste Oil Agreement at

Safety-Kleen would then collect waste oil from those

Counterstatement”), Deposition of Gary Stetz (“Stetz Dep.”) 38:24-39:21, ECF
No. 100-11.
4

Waste Oil Agreement at 1; Def. 56.1 ¶ 1.

Def. 56.1 ¶¶ 4-5. The record does not prominently reveal whether or
how NYCL and Commercial Lubricants were affiliated prior to this transaction.
Commercial Lubricants describes NYCL simply as a “distinct entity” in the
complaint. Third Am. Compl. ¶ 18.
5

Def. 56.1 ¶¶ 4-5, 7; Stetz Dep. 27:3-28:4, ECF No. 100-11;
Certification of Gary Stetz ¶ 3, ECF No. 100-2.
6

3

customers for re-refining, and that oil, in turn, would be made
available for delivery back to distributors like Commercial
Lubricants for sale to end users. 7

Commercial Lubricants’

“managing member,” Gary Stetz, described this cycle as a “cradle
to grave” arrangement for end-users.

Stetz Dep. 38:1-11. 8

To the extent Commercial Lubricants introduced SafetyKleen to “new customers” (meaning customers with which SafetyKleen did not have a pre-existing relationship), Safety-Kleen
was to pay Commercial Lubricants a commission.
Agreement at 1 (defining “New Customer”).

Waste Oil

The Waste Oil

Agreement set forth both (a) the price per gallon that SafetyKleen would pay Commercial Lubricants’ customers for the waste
oil that it picked up from them, and (b) the commission that
Safety-Kleen would pay Commercial Lubricants (also on a pergallon basis).
Specifically, the Waste Oil Agreement provided that
Safety-Kleen would pay Commercial Lubricants’ customers a price

See Exhibit B to Pl. Letter Br. in Opp. to Def. Mot. for Summary
Judgment (“Pl. Opp. Letter”), Stetz Dep. 31:1-11, ECF No. 97-2 (Safety-Kleen
picked up waste oil from customers); id. 38:1-11 (Commercial Lubricants sold
it back to customers).
7

Generally speaking, it appears that once Commercial Lubricants made
introductions, Safety-Kleen would negotiate its own arrangements with those
customers. See id. 38:19-23 (Commercial Lubricants’ managing member says
that “I was always involved in these [pricing] conversations,” but that “at
the end of the day, you know, the number was agreed to by Safety-Kleen and
that’s how we got there.”). The Waste Oil Agreement expressly contemplated
that an end user might sign a contract with Safety-Kleen or “request[]
service with Safety-Kleen . . . without a contract.” Waste Oil Agreement at
1.
8

4

for used oil to be set “in accordance with the terms of Exhibit
A . . . or as authorized by the Safety-Kleen Area General
Manager.”

Id. at 1.

Exhibit A to the agreement, titled

“Authorized PFO Price Range,” listed “price ranges” per gallon
of oil collected.

Id. at Exhibit A.

The more waste oil Safety-

Kleen was picking up from a given customer, the higher the pergallon price Safety-Kleen would pay.

See id.

Exhibit A stated,

however, that the price per gallon “will fluctuate as based upon
the industry indexes for under used oil.”

Id.

The Waste Oil Agreement’s Exhibit B, in turn,
described how the commissions that Safety-Kleen paid Commercial
Lubricants were to be calculated.

The particulars of these

commission terms are not relevant to this order.
The Waste Oil Agreement could be terminated by
“[e]ither party . . . upon 60 days[’] prior written notice.”
Id. at 1.

It also expressly bound Commercial Lubricants to a

180-day non-solicitation obligation after the termination of the
contractual relationship.

Id. at 2.

This provision was

conditioned on Safety-Kleen continuing to pay all amounts due to
Commercial Lubricants, including during the 180-day period.

Id.

Importantly, this non-solicitation obligation was not bilateral
— the contract imposed no equivalent obligation on Safety-Kleen.
In December 2014, Safety-Kleen sent Commercial
Lubricants a letter stating that as of December 21, Safety-Kleen
5

was adjusting all waste-oil payment rates under the Waste Oil
Agreement to $0.00 per gallon.
No. 44-5.

Letter dated Dec. 16, 2014, ECF

Safety-Kleen contends this was a company-wide policy,

and was due to historically low crude oil rates.
¶¶ 11-12.

Def. 56.1

Later, Safety-Kleen began to pay negative rates —

that is, to charge customers for each gallon of oil it
collected, instead of paying them.

Id. ¶ 11.

Judge Brodie found that the December 16 letter served
as a termination notice, effective sixty days later (per the
Waste Oil Agreement’s notice period) — i.e., on February 14,
2015.

Commercial Lubricants, LLC v. Safety-Kleen Sys., Inc.,

No. 14-CV-7483 (MKB), 2018 WL 5045760, at *12 (E.D.N.Y. Oct. 17,
2018).

Following the termination of the Waste Oil Agreement,

Safety-Kleen allegedly continued to collect waste oil from
Commercial Lubricants’ customers through November 2018.
Commercial Lubricants claims it is owed more than $474,000 for
used oil collected from its customers after February 14, 2015.
Pl. 56.1 Counterstatement ¶ 9.

This calculation is based on the

rate set forth in Exhibit B to the agreement.
Safety-Kleen moves for summary judgment on three
counts in the third amended complaint that arise out of its
termination of the Waste Oil Agreement and its subsequent
solicitation of Commercial Lubricants’ customers.

These claims

allege unjust enrichment (count eight), breach of the implied
6

covenant of good faith and fair dealing (count nine), and
quantum meruit (count ten).

Defendant does not move to dismiss

count seven, which is breach of contract for failing to pay
Plaintiff $243,429.95 in commissions for waste oil collected by
Defendant from October 2014 through February 14, 2015 (the
period prior to the termination notice becoming effective).
II.

Standard of Review

Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A material fact is one that “can affect the

outcome under the applicable substantive law.”
Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

Graham v.

A genuine dispute of

material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A defendant’s motion for summary judgment will be
granted if the plaintiff “fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party may demonstrate the absence of a genuine issue
of material fact “in either of two ways: (1) by submitting
evidence that negates an essential element of the non-moving
7

party’s claim, or (2) by demonstrating that the non-moving
party’s evidence is insufficient to establish an essential
element of the non-moving party’s claim.”

Nick’s Garage, Inc.

v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir.
2017).

When the moving party has carried its burden, its

opponent must produce “sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.”
Anderson, 477 U.S. at 249.

The non-moving party must, however,

“do more than simply show that there is some metaphysical doubt
as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.”

Brown v. Eli Lilly

& Co., 654 F.3d 347, 358 (2d Cir. 2011) (citations and
quotations omitted).

If “no rational finder of fact could find

in favor of the nonmoving party because the evidence to support
its case is so slight, summary judgment must be granted.”

Id.

(quotations omitted).
In performing this analysis, the Court must resolve
all ambiguities and draw all inferences in favor of the nonmoving party.

Gallo v. Prudential Residential Servs., Ltd.

P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994).

“If, in this

generous light, a material issue is found to exist, summary
judgment is improper.”

Nationwide Life Ins. Co. v. Bankers

Leasing Ass'n, 182 F.3d 157, 160 (2d Cir. 1999).

8

III. Discussion
Plaintiff challenges the Defendant’s termination of
the Waste Oil Agreement and its subsequent collection of waste
oil from Plaintiff’s customers.

For the following reasons,

Plaintiff has failed to establish the existence of a genuine
dispute of material fact regarding these claims.
A.

Implied Covenant of Good Faith and Fair Dealing
The complaint’s “Ninth Cause of Action” alleges breach

of the Waste Oil Agreement.

Commercial Lubricants does not

point to a specific term of the Waste Oil Agreement and argue
that Safety-Kleen breached that term.

Instead, it contends that

Safety-Kleen breached the implied covenant of good faith and
fair dealing.

Safety-Kleen did this, according to Commercial

Lubricants, by its “improper termination” of the agreement.
Commercial Lubricants argues that the termination was improper
because (i) Safety-Kleen did not rely on industry indices in
dropping price to zero; (ii) the agreement authorized a price
change based on “used” oil, not “crude” oil rates; and (iii) the
price drop was not part of company-wide policy.

This “improper”

termination, according to Commercial Lubricants, resulted in the
denial of commissions due on waste oil that Safety-Kleen
continued to collect from Commercial Lubricants’ customers after
the Waste Oil Agreement terminated.
ECF No. 97.
9

See Pl. Opp. Letter at 2,

“Implicit in all contracts is a covenant of good faith
and fair dealing in the course of contract performance.”
v. Educ. Testing Serv., 87 N.Y.2d 384, 389 (1995).

Dalton

“This

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.’”

Id.

(quoting Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79,
87 (1933)).

“The implied covenant of good faith and fair

dealing is breached when a party acts in a manner that would
deprive the other party of the right to receive the benefits of
their agreement.”

Singh v. City of New York, 189 A.D.3d 1697,

1700 (2d Dep’t 2020).
It is well settled, however, that the covenant of good
faith and fair dealing is circumscribed by the express
provisions of an arms-length agreement.

The covenant “cannot be

construed so broadly” as to “effectively [] nullify other
express terms of a contract, or to create independent
contractual rights.”

Fesseha v. TD Waterhouse Inv. Servs., 305

A.D.2d 268, 268 (1st Dept. 2003).

A plaintiff cannot,

therefore, assert that the defendant acted in bad faith when it
exercised a discretionary right expressly granted by the
contract in question.

Baker v. 16 Sutton Place Apartment Corp.,

110 A.D.3d 479, 480 (1st Dept. 2013).

Where a contract includes

“a termination clause [that] permits the parties to terminate
10

[that] agreement at will,” New York courts “do not qualify an
otherwise absolute power to terminate by requiring termination
to be in good faith.”

Joseph Victori Wines, Inc. v. Vina Santa

Carolina S.A., 933 F. Supp. 347, 353 (S.D.N.Y. 1996) (quotations
omitted); Schwartz v. Fortune Mag., 89 F. Supp. 2d 429, 434
(S.D.N.Y. 1999) (evidence of “bad faith” is “irrelevant, as the
court does not inquire into why a party exercised his right to
terminate a contract when the contract is terminable without
cause”).
Here, it is undisputed that the contract was — by its
express provisions — terminable at will by either party.
Waste Oil Agreement at 1.

See

The contract permitted termination

for any reason or no reason, and (as Judge Brodie determined)
Safety-Kleen exercised this right by sending the December 16,
2014 letter to Commercial Lubricants.
LLC 2018 WL 5045760, at *12.

Commercial Lubricants,

Plaintiff cites no case in which

New York’s implied covenant of good faith and fair dealing was
breached via the “improper termination” of a business-tobusiness contract that was terminable at will, and the Court has
located none. 9

Even if Safety-Kleen did focus on the wrong index

9 There are (rare) cases invoking the implied covenant on behalf of
individual employees who are otherwise at-will. Those cases involve special
circumstances. In Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 112 (2d
Cir. 1985), the circuit held that an employer could be liable under the
implied covenant for terminating an at-will employee “precisely in order to
avoid paying him commissions on sales that were completed but for

11

in adjusting its prices, that fact is immaterial in light of
Safety-Kleen’s undisputed right to terminate with no explanation
whatsoever. 10
Second, there is no provision in the Waste Oil
Agreement that conferred any post-termination rights on
Plaintiff or imposed any post-termination obligations on
Defendant.

This is a prominent omission, given that the

contract imposed a non-solicitation restriction on Commercial
Lubricants.

If Commercial Lubricants wanted to constrain

Safety-Kleen’s ability, post-termination, to continue to do
business with the “new customers” that Commercial Lubricants
introduced, then Commercial Lubricants had only to negotiate an

formalities.” (The court was applying New Jersey law, but still took pains
to distinguish a seminal New York employment-law case in the process — Murphy
v. American Home Products, Inc., 58 N.Y.2d 293, 304–05 (1983). See id.)
Here, Commercial Lubricants is claiming that it was entitled to commissions
for years post-termination — not just commissions that were all-but-due at
the time the contract was terminated. (Those would be the commissions for
sales during the sixty-day termination period, and Safety-Kleen concedes
liability for those — see Note 10, infra.) In addition, of course,
Commercial Lubricants is not an individual employee.
Special circumstances also obtained in Wieder v. Skala, 80 N.Y.2d 628,
609 (1992), where the New York Court of Appeals held that an associate
attorney’s claim for breach of “employment relationship” was improperly
dismissed despite the associate being employed at-will. There, the associate
was fired for reporting attorney misconduct to the Disciplinary Committee;
the court grounded its ruling in the recognition that an attorney’s mandatory
reporting obligation was “critical to the unique function of self-regulation
belonging to the legal profession.” Id.
10 Safety-Kleen acknowledges its obligation to pay $243,429.95 in
commissions to Commercial Lubricants for the oil it picked up from Commercial
Lubricants’ customers between October, when Safety-Kleen stopped paying waste
oil commissions, through the date on which the termination was effective
(February 14, 2015). Def. 56.1 ¶ 33 (“SK does not dispute that it owes CL
the aforementioned $243,429.95”).

12

appropriate provision into the operative contract — or to
negotiate an appropriate amendment to that contract, after the
NYCL transaction.

“Courts generally have been reluctant to find

a breach of an implied covenant of good faith when doing so
reads so much into the contract as to create a new term or when
the alleged misconduct is expressly allowed by the contract.”
Keene Corp. v. Bogan, 1990 WL 1864, at *14 (S.D.N.Y. 1990).
I decline to create such a new term here, given the
parties’ clear and obvious determination that post-termination
restrictions on solicitation should run in only one direction.
Simply put, the Waste Oil Agreement was the product of armslength negotiation between sophisticated parties — in business
for many years — and I cannot rewrite that contract to
substitute a bilateral covenant for a unilateral one under the
rubric of good faith and fair dealing.

See Hirsch v. Qingdao

Orien Com. Equip. Co., No. 12-CV-952, 2015 WL 1014352, at *12
(E.D.N.Y. Mar. 6, 2015) (where contract language “expressly
describes a particular act, thing or person to which it shall
apply, an irrefutable inference must be drawn that what is
omitted or not included was intended to be omitted or
excluded”).
Plaintiff’s reliance on Keene Corp. v. Bogan is thus
misplaced.
1864, *14).

Pl. Opp. Letter at 2 (citing Keene Corp., 1990 WL
The court there noted that New York law “implies a
13

covenant of good faith when one party maintains control over the
benefits that the other party is supposed to receive under the
contract,” id. at *15, and that that covenant is “violated when
a party promises commissions or profits and then does not act in
good faith to permit such commissions or profits to be earned,
thereby depriving the other party of the benefit of the
bargain.”

Id. at *14 (quotations omitted).

But, the court

continued, “[t]he covenant is breached only when one party to a
contract seeks to prevent its performance by, or to withhold its
benefits from, the other . . . .

The mere exercise of one’s

contractual rights, without more, cannot constitute such a
breach.”

Id.

Keene ultimately held that the covenant had not

been breached, for reasons that apply equally here: namely, that
Safety-Kleen merely exercised its rights under the Waste Oil
Agreement.
The Defendant’s motion is therefore granted.

The

breach of the implied covenant of good faith and fair dealing
claim is dismissed.
B.

Unjust Enrichment and Quantum Meruit
Defendant also seeks summary judgment on the quantum

meriut (count ten) and unjust enrichment (count eight) counts.
Quantum meruit and unjust enrichment “are not separate causes of
action”; rather, unjust enrichment “is a required element for an
implied-in-law, or quasi contract, and quantum meruit, meaning
14

‘as much as he deserves,’ is one measure of liability for the
breach of such a contract.”

Mid–Hudson Catskill Rural Migrant

Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir.
2005).

They are therefore generally considered together as a

single quasi-contract cause of action.

Id.

One essential element of these claims is a plaintiff’s
expectation of remuneration.

E.g., Id. (quantum meruit lies

where the plaintiff has an “expectation of compensation” for
services performed); Leibowitz v. Cornell Univ., 584 F.3d 487,
509 (2d Cir. 2009) (unjust enrichment results when a defendant
is “benefitted . . . at the plaintiff’s expense . . . [and]
equity and good conscience require restitution”).

Here, Safety-

Kleen should pay commissions post-February 2015, Commercial
Lubricants argues, because Safety-Kleen continued to solicit
waste oil from Plaintiff’s customers after terminating the
agreement.
An implied contract claim, however, is barred by the
existence of a valid and enforceable written contract on the
subject. 11

E.g., Chartwell Therapeutics Licensing, LLC v. Citron

Plaintiff’s reliance on Milton Abeles, Inc. v. Farmers Pride, Inc.,
603 F. Supp. 2d 500, 504 (E.D.N.Y. 2009), see Pl. Opp. Letter at 4-5, is
misplaced for these same reasons. There, the plaintiff, a distributor,
alleged that the defendant “cut plaintiff out of the distribution
arrangement” in order to sell the product “directly to the subdistributors.”
Id. at 501-02. The court allowed a quantum meruit claim to proceed past
summary judgment only because, unlike count nine here, “the distribution
services for which plaintiff [sought] recovery [did] not fall within the
scope of a valid, enforceable agreement.” Id. at 504.
11

15

Pharma LLC, No. 16-CV-3181, 2020 WL 7042642, at *11 (E.D.N.Y.
Nov. 30, 2020).

Plaintiff’s principal, when asked what this

expectation was based on, invoked only the contract.

Def. 56.1

¶ 29 (citing Stetz Dep. 82:4-6, ECF No. 99-12) (“Well, it’s an
agreement of what we were going to do about these customers in
common and that they would compensate me for it.

They

[Safety-

Kleen] stopped compensating, even though they continued doing
business with those customers.” (emphasis added)).

Plaintiff

has adduced no other evidence, apart from the contract, about
the basis for its expectation of continued compensation.

The

Sixth Circuit — applying New York State law — spoke to this
precise dynamic in Harry W. Applegate, Inc. v. Stature Electric,
writing that “the parties clearly contemplated and rejected post
termination commissions in their contract, and as a result,
Plaintiff is foreclosed from asserting an unjust enrichment
claim.”
law).

275 F.3d 486, 489 (6th Cir. 2001) (applying New York
Summary judgment is therefore granted as to both the

quantum meruit and unjust enrichment claims.
The Plaintiff is still, of course, entitled to collect
the alleged unpaid commissions for used oil “purchases” by the
Defendant during the sixty-day period following the termination
notice, when the contract remained in effect.

Indeed, the

parties do not dispute that the Defendant owes Plaintiff these
commissions.

See Def. Mem. of Law in Support of Partial Mot.
16

for Summary Judgment at 8-9, ECF No. 99 (“It is not disputed
that [Safety-Kleen] owes Commercial Lubricants $243,429.95 in
commissions for waste oil that [Safety-Kleen] collected from
October 2014 through February 2015.”).

These damages will be

cognizable under count seven of the complaint, which alleges
breach of contract for that period (without reference to the
implied covenant).
IV.

Conclusion

For the foregoing reasons, the Defendant’s motion for
partial summary judgment is granted.

Plaintiff’s claims for

unjust enrichment (count eight), breach of the implied covenant
of good faith and fair dealing (count nine), and quantum meruit
(count ten) are dismissed.
Trial in this case is scheduled to begin on October
18, 2021.

The parties shall appear for a final pretrial

conference before the undersigned on October 8, 2021 at 3:00
p.m.
SO ORDERED.

_/s Eric Komitee____________
ERIC KOMITEE
United States District Judge
Dated:

September 22, 2021
Brooklyn, New York
17