People v. Grasso

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 4, 2006, which denied defendant Kenneth Langone’s motion for summary judgment dismissing the complaint as against him, affirmed, without costs.

The Attorney General brought this action to challenge compensation and benefits awarded to the former CEO of the New York Stock Exchange (NYSE), Richard Grasso. A detailed discussion of the background of the litigation and the substance of the complaint is set forth in our decision in People v Grasso (42 AD3d 126 [2007]).

This appeal is from the denial of defendant Kenneth G. Langone’s motion for summary judgment to dismiss the seventh cause of action. In that claim, the Attorney General alleges that defendant Langone, a NYSE director and chair of its Compensation Committee from June 1999 until May 2003, breached his fiduciary duties to the NYSE by failing to make complete and accurate disclosures of Grasso’s compensation to the NYSE Board of Directors.1

In the early 1990s, the NYSE Compensation Committee determined that the Exchange was at a competitive disadvantage because it was unable to offer its senior executives stock-based forms of deferred compensation. To remedy this problem, in 1997, the Board of Directors approved the NYSE’s Capital Accumulation Plan (CAP) for four of its most senior executives. Originally CAP provided a 25% match of variable compensation awards for eligible executives in a given year. *536The variable compensation to which it applied was the NYSE’s Incentive Compensation Plan (ICP) and its Long Term Incentive Plan (LTIP). CAP payments were deferred until retirement or termination.

In May 1999, the NYSE Compensation Committee and Board of Directors approved, and Grasso executed, his second employment agreement as chairman and CEO of the NYSE. The 1999 agreement modified Grasso’s 1995 contract and extended his term to May 31, 2005. In fact, Grasso’s 1999 employment agreement set forth five components of his annual compensation, which, for the first time included CAP These were: (1) a base salary of $1.4 million; (2) a discretionary ICP bonus with a minimum target amount of $1 million annually; (3) a LTIP award; (4) a CAP award equal to 50% of his total variable compensation (ICP and LTIP); and (5) a Supplemental Executive Retirement Plan (SERF) award.

The annual compensation for all of the NYSE senior executives was set each February for the prior calendar year. Between the 1997 institution of CAP awards and Grasso’s 2003 resignation, the process for setting executive compensation was as follows: Frank Ashen, the head of human resources, would collect median target compensation for a group of comparator companies from NYSE’s compensation consultant, Hewitt Associates. He would also prepare a summary of each NYSE executive’s performance for the year, based upon input from operating managers. Next, Ashen compared his raw data against 65 quantitative measurements to reach a score for each executive. That score comprised 65% of the individual’s compensation. The chair of the Compensation Committee then had discretion to determine the remaining 35% of compensation figures. Thus, during his tenure as chair of the Compensation Committee, Langone was directly responsible for determining 35% of the compensation of NYSE executives. Also, he interacted with the NYSE Department of Human Resources by making his yearly proposals to Frank Ashen. After the chair made his recommendations, Ashen met individually with each of the members of the Compensation Committee to present and discuss the salary proposals. On the first Thursday of each February, the Compensation Committee would meet for a collective discussion and vote on all of the executives’ compensation. Later that same day, the full Board of Directors would meet and vote on the same matters. It was the role of the Compensation Committee chair to make oral presentations to the Committee and the full Board before they voted.

*537The first time the Board of Directors had to approve CAP awards was in February 1998. The written materials prepared for the 1998 and 1999 Compensation Committee meetings, under the leadership of then chair Bernard Marcus, provided the Committee Members with worksheets that gave an exact value of the recommended CAP award for each participant. The “total compensation” column of those worksheets also displayed the recommended sum of each executive’s base salary, ICIJ LTIP and CAP award for the year. For example, the 1997 salary worksheet for Robert Britz, a NYSE executive vice-president who received a 25% CAP award, contained the following information (emphasis supplied):

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After Langone became chair of the Compensation Committee in June 1999, the values of recommended CAP awards were removed from the worksheets distributed to Committee members. In addition, the values for “total variable compensation” and “total compensation” no longer included the recommended CAP awards. For example, the worksheet outlining Grasso’s recommended 1999 compensation was as follows:

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Grasso’s February 2000 recommended 1999 compensation worksheet had the following statement underneath the chart: “Grasso will receive 50% of his variable compensation in the Capital Accumulation Plan.” However, the document did not give a value for his 1999 CAP award, which was $3,300,000. The worksheet similarly failed to set forth that his actual recommended compensation was $11,300,000.

After the Committee voted to approve Grasso’s compensation, a worksheet quantifying all of the components of Grasso’s compensation, including the CAP award, and their sum total, *538was sent to the NYSE CFO to effect payment:

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Dale Bernstein, the deputy head of NYSE’s Human Resources Department, testified at her deposition that it was her job to prepare the worksheets of executives’ compensation. She related that after Langone became chair of the Compensation Committee, Frank Ashen told her to remove the CAP column from the materials distributed to the Compensation Committee. Bernstein stated that she told Ashen that she thought the worksheets were clearer with the CAP awards displayed. However, she testified that she deferred to Ashen, who told her that Grasso did not want the CAP columns displayed. Thus, from February 2000 to February 2003, the materials distributed to the Compensation Committee did not have a CAP column. Bernstein stated that after the compensation packages were approved, she gave the finance division worksheets which displayed the values of CAP and total compensation figures.

In February 2000, the Compensation Committee4 was given materials indicating that Grasso’s total 1999 compensation was $8 million, notwithstanding that his actual total compensation was $11.3 million. The minutes from the February 2000 Compensation Committee meeting do not indicate that Grasso’s CAP award was discussed. However, speaking points prepared for Langone’s remarks at the February 3, 2000 Board meeting indicate that Langone specifically told the Board that Grasso’s 2000 CAP award was $3.3 million.

One member of the Compensation Committee, D. Maughan, testified at his deposition that the worksheet he was given at the February 2000 Committee meeting would have been clearer if it included a CAP column and a “real total compensation” figure. Two other members of the Compensation Committee gave deposition testimony that they thought Grasso had been awarded approximately $8 million in total compensation for 1999, when in fact, the actual total compensation approved for Grasso in 1999 was $11.3 million. Notably, the $3.3 million discrepancy was the exact value of the CAP award (which, again, was not disclosed on the compensation worksheet). However, four Board members (M. Karmazin, L. Wachner, G. Levin, and *539R Murphy), testified at their depositions that it was clear to them, before they voted, that Langone was recommending that Grasso receive a $3.3 million CAP award for 1999.

Similar to the format for the prior year, the February 2001 worksheet for Grasso’s compensation indicated a recommended “total 2000 Cash Comp” of $15 million.

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The 2001 and 2002 worksheets added the word “also” to the CAP statement under the chart. They both stated: “Grasso will also receive 50% of his variable compensation in the Capital Accumulation Plan.” However, the February 2001 worksheet did not reveal: (1) that Grasso’s 2000 recommended CAP award was $6.8 million, (2) that a $5 million special award was recommended for Grasso for 2000; or (3) that Grasso’s total recommended compensation for 2000 was $26.8 million. The minutes from the February 2001 Compensation Committee meeting do not indicate that Grasso’s CAP award was discussed. C. Booklet, a member of the Compensation Committee,5 testified at his deposition that he believed that Grasso’s total 2000 compensation was $15 million. This was the value in the “total compensation” column of the worksheet, not the $26.8 million Grasso was actually awarded.

The same procedures were followed in February 2002. The worksheet given to the Committee was as follows:

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The notations under the chart on the February 2002 worksheet indicated that: (1) Grasso would also receive a CAP equal to 50% of his variable compensation; (2) in February 2001, Grasso was granted a special award of $5,000,000; and (3) in February 2002 Mr. Grasso was proposed for a special award of $10,500,000. Thus, the worksheet (including the table and the proposed $10.5 million special award) itemized a recommended compensation for Grasso of $22.5 mil*540lion in 2001.6 Again, neither Langone’s speaking points nor the Compensation Committee minutes indicate a discussion of Grasso’s CAP award. Thus, the actual value of Grasso’s proposed compensation for 2001, including the $8.05 million CAP award, was $30.55 million.

Compensation Committee member R. Murphy, and Board members W. Harrison and J. Duryea all testified at their depositions that they believed they had voted to approve 2001 compensation for Grasso in the $20 million range. C. Booklet and R. Murphy also testified that the members of the NYSE would not be happy if they knew that the Compensation Committee was approving paying Grasso $30 million for his work in 2001.

Grasso’s employment contracts also entitled him to a lump-sum Supplemental Executive Retirement Plan (SERF) distribution upon his departure from the NYSE. This SERF award was determined based upon the length of his service at the NYSE and the amount of his variable compensation during that time. In the summer of 2002, Grasso sought to extend his contract and accelerate payment of some of his deferred compensation. The Compensation Committee held a special meeting during which some members first learned that Grasso’s SERF would be $152 million as of the date of his projected retirement. The Committee was concerned about the rapid, substantial growth of Grasso’s deferred compensation, and they decided that a third party should be retained to review the issue. Langone hired Vedder, Price, Kaufman & Kammholz, a consulting firm, for this purpose. Vedder, Price requested a copy of the materials provided to the Compensation Committee for their February 2002 meeting. However, Ashen provided Vedder, Price with the worksheets that were prepared for the CFO; namely, those which included the actual recommended CAP awards and compensation totals incorporating CAP awards, rather than the worksheet provided to the Committee, which did not display these figures.

Grasso then made a proposal to cap his final pay at $12 million, extend his contract to 2006, and to move $56 million of his accrued SERF benefit into his Supplemental Executive Savings Plan (SESP). The Compensation Committee considered this proposal, because it would lessen the NYSE’s accrual expenses, but it made no determination on the matter. Then, in January 2003, Grasso revised his proposal to request the immediate pay*541ment of approximately $140 million in deferred compensation, including more than $11 million in CAP benefits.

At its February 2003 meeting, the Compensation Committee was given worksheets which included, for the first time under Langone’s leadership, a figure for Grasso’s proposed CAP award. The “Total Compensation” figures in this worksheet also included, again, for the first time under Langone’s leadership, the CAP awards. Thus, the format of the February worksheet was inconsistent with those distributed to the Compensation Committee in February 2000, February 2001, and February 2002.

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Grasso’s recommended total compensation for 2002 was $12 million. The minutes from the February 2003 Compensation Committee meeting also indicate the disclosure and approval of Grasso’s CAP award. However, the Compensation Committee did not vote to approve Langone’s recommendation, but referred it for further study of the financial implications for the NYSE.

On August 27, 2003 Grasso executed his third employment agreement with the NYSE. The same day the NYSE issued a press release revealing that $139.5 million would be immediately payable to Grasso. The press release did not reveal that $48 million was also due to be paid Grasso upon his retirement. In September 2003, the Chairman of the Securities and Exchange Commission contacted the NYSE and requested information concerning Grasso’s compensation. In response to increasing internal and external pressure, Grasso agreed to forgo future benefit payments. Several weeks later, he resigned.

The Attorney General then brought this action. The complaint alleges that the NYSE paid Grasso an unlawful amount of compensation and seeks the return of such sums to the NYSE. The seventh cause of action alleges that as an officer of the NYSE and chair of its Compensation Committee, Langone violated N-PCL 717 (a) by, “among other things,” misleading the Board about the CAP awards. Paragraph 207 of the complaint quotes the relevant portion of N-PCL 717 (a), a codification of the fiduciary duty owed by all officers and directors of not-for-profit corporations. That section provides in pertinent part: “Directors and officers shall discharge the duties of their respective positions in good faith and with that degree of dili*542gence, care and skill which ordinarily prudent men would exercise under similar circumstances in like positions.” (Id.) In paragraph 208 of the complaint, the Attorney General asserts that as chair of the Compensation Committee, Langone breached his fiduciary duties under section 717 (a) by misleading its Board of Directors, “which had delegated to him the task of explaining the proposed compensation.” Langone’s digressions, the complaint continues, are actionable under N-PCL 720 (b)7 and 720 (a) (l).8

After substantial discovery, including 61 depositions and the exchange of approximately one million documents, Langone moved for summary judgment dismissing the seventh cause of action. Langone asserted that he was falsely accused of misleading the NYSE Board as to Grasso’s CAP award. He averred that he personally disclosed Grasso’s CAP program to the Board and was present for similar disclosures by others. He stated that Grasso’s $3.3 million 1999 CAP award was disclosed to the Board at their February 2000 meeting. Langone also asserted that his presentations in 2001 and 2002 fairly and accurately represented all of the components of Grasso’s compensation. He claimed that the “undisputed facts” demonstrated that “[he] and others repeatedly disclosed Grasso’s CAP awards, both orally and in writing.” Langone’s motion contained 45 exhibits. These included Langone’s speaking points for various Board meetings, minutes from February 1997, 1999-2002 Compensation Committee meetings, excerpts from the deposition testimony of various Board members, and salary worksheets for the 2000-2002 Compensation Committee meetings. In support of Langone’s contention that the Board was fully informed about Grasso’s CAP awards, his counsel also annexed, as required by rule 19-a of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]), a 23-page “Statement of Material Undisputed Facts.”

*543In opposition, the Attorney General submitted excerpts from the depositions of 26 individuals, including Board members, NYSE employees, Grasso and Langone. He also presented 58 exhibits, a 14-page response disputing aspects of Langone’s “Statement of Material Undisputed Facts,” and a 32-page “Counter-Statement of Material Undisputed Facts.” The Attorney General’s submissions pointed to the necessity of annual disclosure of the CAP awards. The Attorney General also submitted excerpts from the deposition testimony of a number of the Board members, including Deryck Maughan, Charles J. Booklet, David Komansky, James Duryea, William Harrison, Robert Murphy, and H. Carl McCall. These witnesses’ testimony, much of which is set forth in the factual recitation, indicated misconceptions as to the magnitude of the compensation that they had voted to approve for Grasso in February 2000—Febru-ary 2002.

In reply, Langone submitted 29 additional exhibits, including documents and deposition testimony. These were to establish that Langone met his duty to fully inform the Board about Grasso’s compensation.

At oral argument and on the record, before deciding the motion, the IAS court inquired as to why, upon Langone’s succession to leadership as chair of the Compensation Committee, compensation worksheets circulated to the Committee members no longer itemized the exact values of CAP awards. Langone’s counsel responded that his client had nothing to do with the formatting of the worksheets shown to the Compensation Committee, and that he should not be faulted for those documents’ failure to disclose the CAP awards. The Attorney General countered that Langone was the only NYSE director who interacted with the Department of Human Resources, and that he was also responsible for recommending compensation to the remaining members of the Compensation Committee. The Attorney General added that in his role as chair of the Compensation Committee, Langone had a duty to ensure that the Committee was provided with a complete and accurate presentation of proposed compensation.

Langone’s counsel then asserted that the speaking points from the February 2000 Compensation Committee meeting showed, unequivocally, that Langone disclosed the exact amount of Grasso’s recommended CAP award to the Committee. However, the Attorney General produced evidence that Grasso’s CAP award was not included in Langone’s speaking points for the February 2001 or 2002 meetings. The Attorney General also asserted that there was no evidence that the exact values of *544Grasso’s 2000 or 2001 CAP awards were disclosed to any member of the Compensation Committee or the Board prior to voting to approve his compensation packages.

The IAS court denied Langone’s motion. It found issues of fact as to whether Langone breached his duties to the Board. The court held that the worksheets omitting the exact values of Grasso’s CAP awards constituted evidence that Langone may have breached his obligation to fully and accurately disclose his salary recommendations to the Board. The court noted that Langone’s speaking points for Compensation Committee meetings were inconsistent from year to year. The court also observed that Board members’ deposition testimony indicated that some directors were not aware of the magnitude of the total compensation that they were approving for Grasso.

On appeal, Langone contends that the Attorney General failed to raise an issue of fact as to the claim that he violated his fiduciary duties. He asserts that he had no duty to annually remind the Compensation Committee that it had approved a 50% CAP award for Grasso, and that even if he had such a duty, the undisputed facts reveal that he fulfilled it. Langone also claims that the element of causation has not been met because no Board members could have “reasonably relied” upon the worksheets to conclude that Grasso was not entitled to his contractual CAP award. Finally, Langone contends that any claims which rely upon his purported failure to apprise the Board of Grasso’s SERF awards were not pleaded in the complaint, and cannot be a basis for a determination that Langone breached his duties.

In response, the Attorney General asserts that Langone had a duty to disclose Grasso’s compensation to the Committee and the Board. He claims that the record is replete with evidence that Langone did not fulfill his obligations, and that his failures led the Board to vote in favor of compensation packages which were substantially higher than what they had understood. The Attorney General asserts that omissions regarding Grasso’s CAP and SERF both preclude summary judgment in favor of Langone.

Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant’s papers justify holding, as a matter of law, “that there is no defense to the cause of action or that the cause of action or defense has no merit.” Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 [1990]).

*545The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact as to the claim or claims at issue (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ of Apostolic Faith v Williams, 84 AD2d 648, 649 [1981]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [1974]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Once the prima facie showing has been made, the party opposing a motion for summary judgment bears the burden of “produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact” (Zuckerman, 49 NY2d at 562; see also Romano v St. Vincent’s Med. Ctr. of Richmond, 178 AD2d 467, 470 [1991]; Tessier v New York City Health & Hosps. Corp., 177 AD2d 626 [1991]). The substantive law governing a case dictates what facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” (Anderson v Liberty Lobby, Inc., 477 US 242, 248 [1986].)

Here, Langone’s motion sought dismissal of the seventh cause of action, which alleged that he violated N-PCL 717 (a), a codification of the fiduciary duty of corporate officers and directors. The elements of the Attorney General’s seventh cause of action are (1) the existence of a fiduciary duty; (2) breach of that duty; (3) and a showing that the breach was a substantial factor in causing an identifiable loss. The first element of the cause of action is not controverted. N-PCL 717 (a) expressly provides, and Langone concedes, that as a NYSE director and chair of the Board’s Compensation Committee, he had a fiduciary obligation to discharge his duties, “with that degree of diligence, care and skill which ordinarily prudent men would exercise under similar circumstances in like positions.”

The dissent correctly recognizes that the scope of Langone’s duties present a question of law for the court (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 288 [2001]). In 532 Madison Ave., the Court of Appeals aptly summarized our role in making this determination, which is to: “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportion*546ate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. At its foundation, the common law of torts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining actionable duty, courts must therefore always be mindful of the consequential, and precedential, effects of their decisions” (id. at 288-289 [internal quotation marks and citations omitted]).

As chair of the Compensation Committee, Langone had discretion to recommend 35% of NYSE executives’ variable compensation. With that discretion, Langone had the responsibility, under N-PCL 717 (a), to accurately and completely convey his compensation recommendations to the Board. Langone also had a duty to make compensation recommendations which were in the interest of the NYSE, in good faith and with “conscientious fairness, morality and honesty in purpose” (see Kavanaugh v Kavanaugh Knitting Co., 226 NY 185, 193 [1919]; see also Pebble Cove Homeowners’ Assn. v Shoratlantic Dev. Co., 191 AD2d 544, 545 [1993], lv dismissed 82 NY2d 802 [1993] [“directors of a corporation have the fiduciary obligation to act on behalf of the corporation in good faith and with reasonable care so as to protect and advance its interests”]).

The issue of whether Langone breached his duties to the Board and to the Exchange is fact based, and it cannot be determined on the record before us: “New York courts have long held fiduciaries to a standard ‘stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is . . . the standard of behavior.’ Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928) (Cardozo, C.J.). A corporate officer’s fiduciary duty includes discharging corporate responsibilities ‘in good faith and with conscientious fairness, morality and honesty in purpose’ and displaying ‘good and prudent management of the corporation.’ Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557, 569, 483 N.Y.S.2d 667, 473 N.E.2d 19 (1984) (internal quotations omitted)” (Gully v National Credit Union Admin. Bd., 341 F3d 155, 165 [2d Cir 2003]).

In support of summary judgment, Langone submitted excerpts from deposition testimony, minutes from Compensation Committee and Directors meetings, and other documentary evidence. These purported to conclusively establish that Langone effectively communicated Grasso’s proposed compensation to the Board in conformity with his duties to his codirectors and the Exchange. Langone asserted that because CAP was a component of Grasso’s 1999 employment agreement, a reminder of yearly *547CAP awards was not a material element of his presentations to the Board. He alternatively asserted that the Board members were all aware of CAR that the participants’ yearly CAP award was “an automatic contractual consequence” of the Board’s other compensation decisions, and that Langone nonetheless made adequate disclosures of recommended CAP awards at the annual February compensation meetings. Langone submitted excerpts from the depositions of a number of Board members who related that they were fully informed as to their compensation decisions under Langone’s leadership.

However, in opposition, the Attorney General submitted deposition testimony, minutes from Compensation Committee and Board meetings, and documentary evidence, which demonstrated that while he was chair of the Compensation Committee, Langone may not have effectively communicated Grasso’s compensation to the Board. In addition, the record raises questions as to whether Langone’s executive compensation recommendations were in the best interest of the NYSE. The Attorney General’s submissions included deposition testimony from seven Board members, which indicated that they did not understand the impact of their votes in favor of Grasso’s compensation awards.

First, it is uncontested that the Department of Human Resources was directed to remove both the CAP award column and the total compensation column incorporating CAP awards contemporaneous with Langone’s succession to the position as chair of the Compensation Committee. It is unclear from the extant record who was responsible for the changes to the format of the compensation worksheets. However, it is also unclear whether Langone adequately explained the newly formatted written materials to the Compensation Committee. Further, some of the Board members testified that they believed Grasso’s total compensation for a given year was an amount which, the record reveals, was equal to the value displayed in the total compensation column in the worksheet for that year (a figure which excluded the CAP award referenced in the notations). Whether this was confusion or coincidence is an issue to be explored at trial.

As to damages, the Attorney General asserts that Grasso received exorbitant, unwarranted compensation awards between 2000 and 2002, while Langone was the chair of the Compensation Committee, at the expense of the NYSE. On this issue, the Attorney General’s submissions included the testimony of two Board members who opined that they knew that the NYSE members would not be happy if they had been made aware of *548the total compensation Grasso was awarded for his work in 2001.

Finally, the relevant inquiry on the present motion is whether, viewing the submissions in the light most favorable to the Attorney General, Langone has established, as a matter of law, that his actions did not constitute a breach of his duties as Compensation Committee chair (see N-PCL 717).

Further, the court’s role is limited to identifying whether there are material issues of fact, not to determine them (Sillman, 3 NY2d at 404). Thus, whether any of the directors who testified that they did not comprehend the implications of their votes either could, or should, have either done additional research or asked questions before approving Grasso’s compensation is an issue to be explored at trial. The dissent concludes that the notations describing Grasso’s CAP award on the 2000-2002 worksheets adequately apprised the Board that Grasso’s actual compensation was the “total compensation” figure in the chart plus 50% of the recommended ICE and LTIP awards. However, deposition testimony in the record indicates that the disclosures and the postulated mathematical calculations may not have been as clear to some of the directors voting to approve Grasso’s compensation as they are to the author of the dissenting opinion.

This record exemplifies the general rule that “comparison of a party’s conduct with the fiduciary standard of care is a question of fact” (Cramer v Devon Group, Inc., 774 F Supp 176, 185 [SD NY 1991]). For example, the record shows that there were changes in the format of the worksheets under Langone’s leadership which may have required explanation to the Compensation Committee; there is inconsistent deposition testimony about Langone’s oral presentations to the Compensation Committee and the Board between 2000 and 2002; and there is deposition testimony indicating that Committee members were confused. Thus, Langone has not established as a matter of law that he fulfilled his obligations under N-PCL 717. Accordingly, we affirm the order appealed denying his motion for summary judgment. Concur—Mazzarelli, J.E, Saxe and Sweeny, JJ.