Newmark & Co. Real Estate, Inc. v. Frischer

This appeal raises the familiar question of when an employee’s bonus constitutes a discretionary bonus subject to forfeiture at the will of the employer or earned compensation not subject to forfeiture. The majority answers this question in favor of the plaintiff-employer, dismissing each of the defendant-employee’s counterclaims, based upon plaintiff’s documentary evidence. While I agree with the majority that plaintiff’s documentary evidence is sufficient to conclusively refute defendant’s counterclaims insofar as they relate to an alleged oral promise to pay an annual nondiscretionary…