Vanacore v. Expedite Video Conferencing Services, Inc. et al

Filing 39

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Defendants' Objections are OVERRULED, Judge Brown's R&R (Docket Entry 37) is ADOPTED in its entirety, and Defendants' counterclaims are DISMISSED. So Ordered by Judge Joanna Seybert on 3/23/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
STEPHEN VANACORE,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-6103(JS)(GRB)

EXPEDITE VIDEO CONFERENCING
SERVICES, INC. and LARRY ROHER,

Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Jason L. Abelove, Esq.
Law Offices of Jason Abelove
666 Old country Road, Suite 304
Garden City, NY 11530
Jonathan Matthew Borg, Esq.
Bedell & Forman LLP
44 Wall Street, 12th floor
New York, NY 10005
For Defendants:

Paul R. Williams, Esq.
Schupbach, Williams & Pavone, LLP
1010 Franklin Avenue
Garden City, NY 11530

SEYBERT, District Judge:
Plaintiff Stephen Vanacore (“Plaintiff”) commenced this
action on October 17, 2014 against Defendants Expedite Video
Conferencing

Services,

Inc.

and

Larry

Roher

(collectively

“Defendants”), alleging causes of action for breach of contract,
unjust enrichment, and violations of New York Labor law.

(See

Compl. ¶¶ 26-42.) Defendants also assert two counterclaims against
Plaintiff for breach of the duty of loyalty and for the recovery
of unpaid commissions.

(See Am. Answer, Docket Entry 26, at 5-

11.)

Pending before the Court is Plaintiff’s motion to dismiss

Defendants’ counterclaims (Docket Entry 30), Magistrate Judge Gary
R. Brown’s Report and Recommendation (“R&R”) recommending that
Plaintiff’s motion be granted (Docket Entry 37), and Defendants’
Objections to Judge Brown’s R&R.

(Docket Entry 38.)

For the

following reasons, the Court OVERRULES Defendants’ Objections and
ADOPTS Judge Brown’s R&R in its entirety.
BACKGROUND
The Court assumes familiarly with the facts of this case,
which are discussed within Judge Brown’s R&R.

Briefly, Plaintiff

worked for Defendants from 2007 to 2014 as a full-time sales
representative and was paid a salary, commission, and reimbursed
for his expenses.

(R&R at 2.)

Conversely, Plaintiff claims that

Defendant failed to pay him at least $116,579.49 in compensation
during his employment.

(Compl. ¶ 24.)

Defendants allege in their

Answer that they actually paid Plaintiff too much compensation and
are entitled to be reimbursed.

(Am. Answer ¶¶ 32-35.)

In

addition, Defendants allege that Plaintiff breached his duty of
loyalty and good faith to Plaintiff by “performing significant
‘information technology’ services for hire on behalf of an entity
named Champion Lumber Corporation.”

(Am. Answer. ¶ 46.)

Plaintiff filed a motion to dismiss Defendants’ two
counterclaims

on

August

11,

2015.

(Docket

Entry

30.)

On

August 25, 2015, the undersigned referred Plaintiff’s motion to
2

Judge Brown for an R&R on whether the motion should be granted.
(Docket Entry 35.)
Judge
recommending

Brown

that

issued

his

Plaintiff’s

R&R

on

motion

be

Defendants’ two counterclaims be dismissed.

December

10,

granted

2015,

and

(R&R at 8.)

that

Although

Defendants did not file any substantive opposition to Plaintiff’s
motion to dismiss, Defendants nevertheless object to Judge Brown’s
R&R on the ground that Judge Brown misinterpreted the cases
Plaintiff relied upon in its motion.

(Objections at 6-12.)

DISCUSSION
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).
specific,

written

objections

to

A party may serve and file
a

magistrate’s

report

and

recommendation within fourteen days of receiving the recommended
disposition.

See FED. R. CIV. P. 72(b)(2).

Upon receiving any

timely objections to the magistrate’s recommendation, the district
“court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

28

A party

that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
3

object.

See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at

*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.

See Pizarro v. Bartlett, 776 F. Supp.

815, 817 (S.D.N.Y. 1991).
or

general

But if a party “makes only conclusory

objections,

or

simply

reiterates

his

original

arguments, the Court reviews the Report and Recommendation only
for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51

(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s specific
objections, the Court ordinarily will not consider “arguments,
case law and/or evidentiary material which could have been, but
[were]

not,

instance.”

presented

to

the

magistrate

judge

in

the

first

Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at

*1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
omitted).
I.

Breach of the Duty of Loyalty and Good Faith
In

his

R&R,

Judge

Brown

recommended

dismissing

Defendants’ cause of action for breach of the duty of loyalty and
good faith. He concluded that even if Plaintiff spent time working
for other clients that he should have devoted to Defendants’
business, no cause of action existed for breach of the duty of
loyalty

and

good

faith

absent

the
4

allegation

that

Plaintiff

actually competed with Defendants’ business.

(R&R at 8.)

The

Court agrees with Judge Brown’s conclusion.

See Cerciello v.

Admiral Ins. Brokerage Corp., 90 A.D.3d 967, 968, 936 N.Y.S.2d
224, 226 (2d Dep’t 2011)

(“[T]he mere failure of an employee to

perform assigned tasks does not give rise to a cause of action
alleging breach of that duty.”)

Allowing an employer to sue an

employee for breach of fiduciary duty merely because the employee
was not devoting enough time to his job is contrary to the current
state

of

problems.

the

law

and

would

create

unnecessary

line-drawing

Employers already have an adequate remedy for this kind

of conduct--they can fire the employee.
II.

The Recovery of Overpaid Compensation
Judge Brown determined in his R&R that under New York

law, an employer cannot claw back commissions it paid to an
employee absent the existence of a “special agreement” authorizing
the claw back.
the

existence

(See R&R at 5.)
of

such

an

Since Defendant did not allege

agreement,

Judge

Brown

recommended

dismissing Defendants’ overpayment claim. (R&R at 6.) Defendants’
primary objection regarding their overpayment claim is bound up
with their contention that Plaintiff breached his fiduciary duty
to

Defendants,

a

cause

(Objections at 11-12.)
that

their

of

action

that

the

Court

dismissed.

Defendants also argue, for the first time,

counterclaim

seeking

the

recovery

of

overpaid

commissions sounds in fraud. (Objections at 12.) Since Defendants
5

raise this point for the first time in their Objections, however,
the Court need not address it.
*1

(E.D.N.Y.

evidentiary

Sept.

material

1,

See Kennedy, 2006 WL 3704784, at

2006)

which

(“arguments,

could

have

been,

case
but

law

and/or

[were]

not,

presented to the magistrate judge in the first instance” (internal
quotation marks and citation omitted)).

Plaintiff’s objections

regarding Defendants’ overpaid claim are therefore OVERRULED.
CONCLUSION
For the foregoing reasons, Defendants’ Objections are
OVERRULED, Judge Brown’s R&R (Docket Entry 37) is ADOPTED in its
entirety, and Defendants’ counterclaims are DISMISSED.

SO ORDERED.

Dated:

March
23 , 2016
Central Islip, New York

6

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.