Key Points

  • The First Department unanimously affirmed summary judgment dismissing Invictus Global Management's amended complaint against Corbin Capital Partners.
  • The performance fee did not accrue until calendar quarter-end, the date the agreements set for calculating and paying it, and Corbin validly terminated the co-investment agreements before that date.
  • The agreements' termination provisions listed the provisions that survive termination and did not include the compensation provisions; the 10-day written notice requirement meant the fee promise was not illusory.
  • The indemnification provision was not unmistakably clear in covering attorneys' fees in disputes between the parties, so the indemnification claim failed under Sage Systems v. Liss.
  • The declaratory judgment claim was properly dismissed as duplicative of the breach of contract claim.

A New York appeals court ruled on Nov. 12 that Invictus Global Management was not entitled to a performance fee on a co-investment, because Corbin Capital Partners ended the governing agreements before the end of the calendar quarter, the date the contracts set for calculating and paying the fee.

The Appellate Division, First Department, unanimously affirmed a July 14, 2025, order by Justice Melissa A. Crane of Supreme Court in Manhattan. That order granted summary judgment to Corbin and its co-defendants, dismissed the amended complaint brought by Invictus and its co-plaintiffs, and denied Invictus's own motion for partial summary judgment on its breach of contract claim. The five-justice panel issued an unsigned decision and awarded costs to Corbin.

The decision treats the quarter-end calculation date as the moment the fee was earned, not as a bookkeeping step taken after the right to payment had already locked in. Because Corbin terminated the agreements first, and the agreements did not list their compensation terms among the provisions that outlast termination, Invictus had no claim to the fee. The panel also rejected Invictus's effort to recover its legal costs under an indemnification clause and threw out a companion claim for a declaratory judgment.

The panel consisted of Justice Kennedy, who presided, and Justices Friedman, Rodriguez, O'Neill Levy and Parker-Raso. The decision does not identify the underlying investment or state the amount of the disputed fee.

On the central question of when the fee came due, the panel looked to the agreements' own wording. The fee, it held, was not "earned" until "calendar quarter-end," which is the date on which the agreements state that the fee "shall be calculated and paid." That date fell after Corbin had terminated the deals. "Nothing in the agreements suggests that plaintiffs' entitlement to such fees accrued earlier," the panel wrote.

"Calculation is not purely an administrative exercise performed after the right to receive fees has already vested, as it entails deductions for losses, which may continue to be incurred until quarter-end," the decision said. For that point the court cited Pachter v. Bernard Hodes Group, a 2008 decision of the New York Court of Appeals, and a 1980 First Department ruling, Matter of Dean Witter Reynolds v. Ross.

The panel next turned to Invictus's argument that ending the agreements did not erase fees it had already earned. That position, the court wrote, "is at odds with the terms of the agreements." The decision notes that it was undisputed that Corbin validly terminated the agreements as their termination provisions required. Those provisions "specifically identify the provisions that survive termination, but do not include the provisions regarding compensation," the panel wrote, citing its own 2026 decision in Mulacek v. ExxonMobil Corp.

Invictus also contended that reading the contracts this way would make Corbin's promise to pay performance fees "illusory." The panel rejected that argument, finding "at least some limitation on defendants' ability to terminate, including the requirement of 10-days' written notice." It added: "Plaintiffs are sophisticated parties who bargained for these terms."

Because the accrual ruling resolved the contract claim, the panel said it did not need to reach the parties' competing arguments about the valuation of the overall portfolio. It also declined to take up Invictus's contention that Corbin had breached the implied covenant of good faith and fair dealing. The panel said it would not consider that theory "as no such claim was alleged, nor have plaintiffs sought leave to amend to add one."

The indemnification claim fared no better. Invictus had sought to use the agreements' indemnification provision to recover attorneys' fees in its suit against Corbin. Citing the Court of Appeals' 2022 decision in Sage Systems Inc. v. Liss, the panel held that the provision was not "unmistakably clear" in its intention to include attorneys' fees in intraparty disputes, and that its breadth did not save it. "It is not enough that the provision is broad," the decision said, citing the First Department's 2026 ruling in Board of Managers of the 432 Park Condominium v. 56th & Park (NY) Owner LLC.

The court also upheld the dismissal of Invictus's claim for a declaratory judgment. The panel held that claim duplicated the breach of contract claim, "which can afford full relief." The decision closes by saying the panel had "considered plaintiffs' remaining arguments and find them unavailing."

Lawyers for Invictus included Jeremy Wyeth Shulman of Hughes Hubbard & Reed LLP. Corbin was represented by William B. Adams of Quinn Emanuel Urquhart & Sullivan, LLP.

The ruling leaves Justice Crane's dismissal of the amended complaint in place, with costs awarded to Corbin. The decision, reported as 2026 NY Slip Op 06572, is marked uncorrected and subject to revision before publication in the Official Reports.