Buckley and McGuire, JJ., dissent in a memorandum by McGuire, J., as follows:

Defendant Kenneth G. Langone appeals from the denial of his motion for summary judgment dismissing the complaint as to him. The principal issue on this appeal is a simple one: whether there is a triable issue of fact about whether Langone, who was a member of the Board of Directors (the Board) of the New York Stock Exchange (the Exchange) and the chair of its Compensation Committee at the time of the Board meetings at issue, failed to inform or remind the Board during three meetings of the Board (in February of 2000, 2001 and 2002) about a contractually-mandated consequence of the decision the Board was to make at each of these meetings on the amount of the bonus it was awarding to its chair and chief executive officer, Richard A. Grasso. In concluding that there is such an issue of fact, the majority relies on: (1) allegedly misleading worksheets prepared by Exchange staff, and (2) purported contradictory deposition testimony of certain directors of the Exchange. However, the worksheets were never presented to the Board, and thus could not possibly have misled the members of the Board, and the deposition testimony the majority relies upon either expressly supports Langone's position or fails to call it into question. Accordingly, there is no triable issue of fact and Langone is entitled to summary judgment for this reason alone. In addition, as discussed below, the majority fails to come to grips with the two other, independent grounds for reversal advanced by Langone.

On March 4, 1999, during a meeting of the Board, the Board met in "executive session" — i.e., outside the presence of Grasso — to discuss the terms of a new employment agreement with Grasso. Earlier that day, the Compensation Committee of the Board, which was then chaired by Bernard Marcus, had reviewed the agreement and voted to recommend it to the full Board. One of the key provisions of that agreement, Grasso's participation in the Capital Accumulation Plan (CAP or the CAP Program), is central to this appeal. And the central concept of CAP, as one of the directors, Gerald Levin, stated when he was deposed in this litigation, is "not at all" difficult. That simple concept is that each year Grasso would be entitled under the agreement to an award of deferred compensation (payable upon retirement or termination) in the amount of 50% of his annual "variable compensation," i.e., the annual bonus awarded to him by the Board. Thus, each year the Board would decide the amount of Grasso's bonus and, by operation of law, the employment agreement would dictate an additional benefit set at one half of the bonus in the form of the deferred CAP award.

As the minutes of the Board meeting state, Director Marcus addressed the Board regarding the proposed employment agreement with Grasso, reviewed its terms and informed the Board that the Compensation Committee had reviewed the agreement and recommended it to the Board. As was testified to by numerous attendees of the Board meeting, both directors and Exchange staff, one of the terms that Director Marcus expressly disclosed to the Board was that Grasso would participate in the CAP Program and receive a deferred 50% match of his annual bonus. Significantly, there is no testimony or any other evidence that Director Marcus did not make this disclosure concerning a central feature of the proposed agreement. The Board unanimously approved the proposed agreement.

In addition to being uncomplicated, the CAP Program was familiar to the Board. In September 1997, some 18 months earlier, the CAP Program was commenced when the Board approved the program, which was then limited to four "Group Executive Vice Presidents" and provided for a deferred 25% match of their variable compensation. As the minutes of the September 1997 Board meeting make clear, and as is undisputed, the CAP Program was explained to the Board by Frank Ashen, the Exchange's vice-president for human resources, and he informed the Board, inter alia, that the four participants would receive a deferred 25% match of their annual variable compensation. In addition, the then chair of the Compensation Committee, Ralph Larsen, who at the time was also the chair of Johnson Johnson, told the Board that the Compensation Committee had reviewed the CAP Program and recommended its adoption. By unanimous vote, the Board approved the program.

In June 1999, shortly after Grasso's new employment agreement was approved by the Board, Langone became chair of the Compensation Committee. By then, a three-step process was already in place for determining and approving the annual incentive compensation awards for the prior year for senior Exchange executives, including Grasso. First, Ashen would meet individually with members of the Committee. The materials Ashen brought to these meetings included worksheets he prepared with proposed incentive compensation amounts for senior executives other than Grasso. During the one-on-one meetings, however, Ashen also reviewed the components of Grasso's possible compensation (the annual salary fixed by the agreement at $1.4 million and his incentive or variable compensation), and his potential CAP award. As Ashen testified, "I would say that he [Grasso] would get 50 percent of his variable compensation wherever it ended up." Second, in early February, the Compensation Committee met to discuss and approve the variable (i.e., incentive) compensation of senior executives, including Grasso. In most years, Ashen circulated a worksheet to Committee members with the proposed variable compensation for Grasso after Grasso left the room. Third, after the Committee approved recommendations for incentive compensation awards for Grasso and other senior executives, the full Board would meet later that same day. Assisted by "Speaking Points" prepared by Ashen, the Committee chair summarized the recommendations and the Board voted on and approved the compensation awards for the senior executives. When Grasso's compensation was under discussion, Grasso would leave the room and the Board would meet in executive session.

At meetings of the Board on February 3, 2000, February 1, 2001 and February 7, 2002 (the February meetings) the Board, in accordance with recommendations of the Compensation Committee, approved variable compensation awards for Grasso of $6.6 million (for 1999), $13.6 million (for 2000) and $16.1 million (for 2001). At the latter two meetings, the Board also approved a "special award" to Grasso of $5 million, a payment that would be excluded from both his variable compensation (and thus from the CAP Program) and his pension plans. Accordingly, pursuant to the 1999 employment agreement, the Board's actions at the February meetings resulted in CAP awards to Grasso of $3.3 million, $6.8 million and $8.05 million.

The crux of the Attorney General's allegations against Langone are set forth as follows in paragraph 208 of the complaint: "Langone breached his fiduciary duty to the NYSE by misleading the NYSE Board of Directors — which had delegated to him the task of explaining the proposed compensation — about the amount of the annual compensation the Compensation Committee was recommending be approved by the Board, through, among other things, his failure to disclose that Grasso would be receiving as deferred compensation an additional 50 percent of his bonus or ICP [Incentive Compensation Plan] award" (emphasis added).

In moving for summary judgment dismissing the complaint as to him, Langone relied in part on testimony and documentary evidence relating both to the meetings on March 4, 1999 of the Compensation Committee and the Board approving Grasso's employment agreement and to the September 1997 meeting of the Board at which the CAP Program was established. In addition, and in particular, Langone relied on testimony from directors and other attendees at the February meetings of the Board and the Compensation Committee, and on documentary evidence relating to these meetings. For present purposes, suffice it to say that numerous directors and others present at the February meetings testified that Langone expressly referred to Grasso's CAP award, and that no director or other person present at the February meetings testified that Langone failed to disclose the CAP award. In short, the evidence relating to the February meetings provided further support for Langone's position that: (1) the Board was fully aware that its decisions on Grasso's variable compensation entailed an additional benefit under the CAP Program of an award of deferred compensation in the amount of 50% of his bonus, and (2) he specifically informed the Board at each of the February meetings of the additional CAP award.

Another meeting of the Board, on April 5, 2001, is relevant. At the meeting both Ashen and Langone made presentations to the Board regarding a proposal, approved earlier that day by the Compensation Committee, to eliminate one of the bonus programs and expand the CAP program beyond the six senior executives who were then participating in it. As the Speaking Points prepared for Langone by Ashen state:

"The Committee recommends expanding the participation in the Capital Accumulation Plan . . .

"There are presently six participants in the Plan. Dick Grasso, Bob Britz and Cathy Kinney participate at the 50% of variable compensation level."

Ashen and Board members Gerald Levin and Robert Murphy testified that Langone, consistent with the Speaking Points, stated that Grasso was one of the executives participating in the CAP plan at the 50% level. Ashen and Board members Murphy and Mel Karmazin also testified that no Board members stated at the April 2001 meeting that he or she had been unaware two months earlier, when Grasso's 2000 variable compensation was approved, that Grasso also was getting a CAP award of 50% of his bonus. On Langone's motion for summary judgment, none of this testimony was controverted.

As discussed below, Supreme Court denied Langone's motion, ruling that material issues of fact existed that precluded granting the motion and that the testimony Langone relied on "drips of credibility [issues]." On this appeal, Langone argues that his motion should have been granted for three reasons: (1) he was under no duty to remind the Board each year of what the Board unquestionably knew when it approved Grasso's 1999 employment agreement, viz., that Grasso would receive an additional benefit under the CAP Program of an award of deferred compensation in the amount of 50% of his bonus, (2) the undisputed evidence submitted on the motion demonstrated that he did so remind the Board at the February meetings, and (3) the Attorney General failed to raise an issue of fact concerning causation, because the Board did understand that Grasso was entitled to an additional CAP award and thus any alleged failure so to remind the Board could not have been the cause of any injury to the Exchange. I need not reach the first and third of these arguments as Langone's motion should have been granted on the second of these three grounds.

As Langone correctly maintains, the evidence he presented on his motion for summary judgment demonstrates that he did inform the Board of the amount of Grasso's CAP award at each of the February meetings. The Attorney General, however, failed to meet his burden ( see Zuckerman v. City of New York, 49 NY2d 557, 562) of producing evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact requiring a trial on the question of whether Langone so informed the Board.

The Attorney General and the majority maintain that the worksheets presented to the Compensation Committee members are sufficient to establish a material issue of fact as to whether Langone so informed the Board at the February meetings. To understand why that is incorrect, the worksheets must be discussed in some detail.

The worksheet prepared by Ashen relating to Grasso for the February 3, 2000 meeting of the Compensation Committee contains columns for his 1999 "Base Salary," "ICP" (Incentive Compensation Plan) and "LTIP" (Long Term Incentive Plan), i.e., the two components of his bonus or variable compensation, "Total Compensation" and "Total Variable Compensation." Immediately below these columns a notation states as follows: "In 1999 Mr. Grasso will receive 50% of his variable compensation in the Capital Accumulation Plan." The worksheets prepared by Ashen relating to Grasso for the other two February meetings of the Compensation Committee contain columns for his 2000 and 2001 "Base Salary," "ICP" and "LTIP," "Variable Comp[ensation]" and "Total Cash Comp[ensation]." On both worksheets, immediately below these columns a notation prominently states (in type identical in size to the preceding text) as follows: "Mr. Grasso will also receive a capital accumulation award equal to 50% of the Variable Compensation."

At most, the first worksheet is ambiguous in that someone not knowledgeable about Grasso's participation in the CAP Program pursuant to the 1999 employment agreement might understand the notation to mean that the $6.6 million figure in the "Total Variable Compensation" column included a CAP award of $3.3 million. For that to be the case, however, Grasso's award of deferred compensation under the CAP Program would have to have been set at 100% (rather than 50%) of his variable compensation. Moreover, the amount of "Total Variable Compensation" exactly matches the sum of ICP and LTIP (the two components of Grasso's bonus or variable compensation) and the figure set forth as "Total Compensation" equals that amount plus the "Base Salary," thus indicating that CAP must be an additional category.

Putting aside that the notations in the latter two worksheets unequivocally state that the CAP award is an additional 50% of the variable compensation, the first worksheet is irrelevant in any event. In the first place, even if the worksheet could have been ambiguous to a director on the Compensation Committee, it does not affirmatively misstate the CAP award, let alone negate or cast doubt on the testimonial and documentary proof both that the Board correctly understood Grasso's participation in the CAP Program and that Langone specifically informed the Board at the February 3, 2000 meeting that Grasso would receive a $3.3 million CAP award in addition to his bonus of $6.6 million. Perhaps most notable in this regard is the testimony of Linda J. Wachner, a member of the Board. Her uncontradicted testimony was that Langone "was careful to articulate each piece, including the CAP award, the 1999 compensation will be $8 million, and that Dick will also receive another $3.3 [million]." In addition, after making his presentation to the Board, Langone asked the members of the Compensation Committee "if there were any things he left out."

The second reason the worksheet is irrelevant is that only Compensation Committee members received the worksheets. The full Board never received either the lone and ostensibly ambiguous worksheet or any of the other worksheets prepared by Ashen. This undisputed fact — the majority ignores it — is critical because, as noted above, the operative allegation of the complaint is that Langone "misle[d] the NYSE Board of Directors . . . through . . . his failure to disclose that Grasso would be receiving as deferred compensation an additional 50 percent of his bonus" (emphasis added).

Unfortunately, despite their irrelevance, further discussion of the worksheets is necessary given that they are so critical to the majority's position. The majority takes pains to note that "[a]fter 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" and that "the values for 'total variable compensation' and 'total compensation' [columns] no longer included the recommended CAP awards." The majority also maintains that "[i]t is unclear from the extant record who was responsible for the changes to the format of the compensation worksheets."

Why the majority makes these statements and places such reliance on the changes in the worksheets is bewildering. Langone had nothing whatsoever to do with these changes in the worksheets. Not a shred of evidence is to the contrary. In fact, Ashen testified that Langone never told him "how to do" or "set . . . up" the worksheets. The only other relevant testimony on this subject is that of Bernstein. As the majority also notes, Bernstein testified that Ashen told her to remove the CAP column from the worksheets. But Bernstein offered only the hearsay explanation that Ashen told her that Grasso, not Langone, did not want "CAP Accumulation" and "Total Compensation" columns to be displayed. It may be unclear whether Grasso played a role in the changes to the format of the worksheets, but the record is not unclear with respect to Langone. Nothing but rank speculation and a blatant fallacy — post hoc, ergo propter hoc — would support linking to Langone the hearsay-based attribution of these changes to Grasso. Immediately before its claim that the record is unclear with respect to who was responsible for the format changes, the majority stresses that "it is uncontested that the Department of Human Resources was directed to [make the changes] contemporaneous with Langone's succession to the position as Chairman of the Compensation Committee." The majority may not overtly commit this fallacy, but it plainly intends to suggest that the mere fact that the changes occurred after Langone became chair of the Compensation Committee raises an issue of fact regarding who decided to make the changes.

The majority also states that "Bernstein stated that she told Ashen that she thought the worksheets were clearer with the CAP awards displayed." In the first place, however, merely because a statement can be made more clearly, it hardly follows that the statement actually made is not clear, let alone that it is false or misleadingly incomplete. As noted above, the worksheets for the February 2001 and 2002 meetings unambiguously support Langone's position and the worksheet for the February 2000 meeting does not create a material issue of fact. Moreover, the majority fails to mention that Bernstein also testified that she did not "feel uncomfortable" with the changes in the worksheets "because the CAP was footnoted, so I felt that the information was there."

On the subject of the worksheets, finally, the majority also is wrong in asserting that I "conclude [] 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 ICP and LTIP awards." To the contrary, my position is that the worksheets do not create a material issue of fact precluding summary judgment for at least two reasons. First, and most importantly, the worksheets submitted to the Committee members do not undercut or create a material issue of fact regarding the evidence submitted by Langone that he specifically informed the full Board at each of the February meetings of the additional CAP award. Second, and as I have noted without contradiction by the majority, the worksheets for the February 2001 and 2002 meetings of the Committee unambiguously support Langone's position while the worksheet for the February 2000 meeting is at most ambiguous.

In its oral decision denying Langone's motion for summary judgment, Supreme Court relied on the absence of any statement in the minutes of the February meetings of either the Board or the Compensation Committee evidencing a discussion of Grasso's CAP award. Indeed, Supreme Court went so far as to opine that "the Attorney General probably makes a prima facie case by just showing the minutes." In attempting to defend its contention that material issues of fact precluded the granting of Langone's motion, the majority does not rely on the minutes. In stating its view of the facts, however, the majority repeatedly notes that the minutes from each of the three February meetings of the Compensation Committee do not indicate that Grasso's CAP award was discussed. On appeal, moreover, the Attorney General continues to rely on the minutes in this regard.

The absence of any reference in the minutes to a discussion of Grasso's CAP award is as unsurprising as it is irrelevant. As Langone correctly observes, it is hornbook law that board minutes are meant to reflect the board's actions, not all of its discussions ( see 5A Fletcher, Cyclopedia of Corporations § 2190, at 155-156 [Perm ed] [minutes "should definitely and positively show what action was taken by the corporation in the matters that they purport to memorialize," but the "secretary is not obligated to include everything that is said in the minutes as long as the secretary accurately transcribes what has taken place" (emphasis added)]). The majority offers nothing by way of response to this basic point of corporate law and procedure.

The minutes of the February meetings of the Compensation Committee and the Board do reflect the relevant actions taken, i.e., approval of the incentive compensation awards made to Grasso and other senior executives. By contrast, approval of the CAP award to Grasso or to any other executive was neither an action that the Committee or the Board did take nor an action that either was required to take. Rather, in each year the approval of the incentive compensation award automatically dictated the CAP award (by virtue of the terms of the 1999 employment agreement in Grasso's case and by virtue of the terms of the CAP Program for the other executives). And as Langone notes, when an action was taken with respect to CAP, the minutes so reflect. Thus, when the CAP award was increased for two executives (from a 25% to a 50% match) in February 2000, the Compensation Committee minutes so reflect, and the April 2001 minutes similarly reflect an expansion of the CAP Program to include additional executives.

In short, the absence of any reference in the minutes to a discussion of Grasso's CAP award is devoid of any significance. It neither undercuts nor creates a material issue of fact regarding the documentary proof and uncontradicted testimony of participants at the February meetings of the Board (and of the Compensation Committee) that Langone did remind the Board anew (and the Committee) about Grasso's CAP award.

Nor is the Attorney General persuasive in urging that a material issue of fact on whether Langone misled the Board is raised by a sentence in the Speaking Points prepared by Ashen for Langone's use at the February 2002 meeting of the Board in presenting the Compensation Committee's recommendations for Grasso's 2001 compensation. At most, the last sentence of these Speaking Points is ambiguous. The third "bullet-point" notes that in 2000 Grasso received his contractually fixed salary of $1.4 million and "variable compensation of $13.6 million and a Special Payment of $5 million that will vest fully in February 2006." The Speaking Points then continue as follows:

"This year, the Committee recommends that Dick receive, in addition to his salary:

"-$16.1 million in variable compensation

"(up $2.5 million from last year)

"-A Special Payment of $5 million that he will receive when he leaves the Exchange that will also be placed in his SESP account — The Exchange's non-qualified Savings Plan

"-Like the Special Payment we made last year, the $5 million will not be eligible for the Capital Accumulation Plan, nor will it be a part of Dick's retirement calculation

"As a result, all in, the Committee recommends that Dick's compensation be raised $2.5 million, including a deferred special payment of $5 million."

If one understands the term "compensation" in the last sentence to include the CAP award, the Speaking Points would be to this extent misleading in that the $2.5 million increase in the variable compensation dictated a $1.25 million increase in the CAP award so that the increase in total "compensation" would be $3.75 million. On the other hand, if one understands the term "compensation" to exclude the CAP award and include only the compensation the Committee was recommending for approval (the funds which, in contrast to the CAP award, were payable immediately) the Speaking Point would not be misleading. Moreover, anyone who understood the basic elements of Grasso's participation in the CAP plan (which is mentioned in the preceding sentence of the Speaking Points) would understand that a $2.5 million increase in "variable compensation" would dictate an increase of $1.25 million in the CAP award.

The extent to which the last sentence of these Speaking Points is ambiguous, however, need not be explored any further. First, there is no evidence that Langone read the Speaking Points as written to the Board. To the contrary, and no evidence contradicts him, Langone testified with respect to these and other Speaking Points prepared for him by others, "I don't read [to the Board]." The Attorney General focuses on one snippet of Langone's testimony and asserts that Langone "conceded that he made the 'all in' statement from the speaking points." In fact, the last sentence was read to Langone during his deposition and he was then asked: "Did you tell the Board that?" Langone's response was: "Words to that effect, I did. I wouldn't have read it." Putting aside that the words "in effect" undermine the fatal concession the Attorney General discovers in that one response by Langone, a subsequent question by the Assistant Attorney General focused specifically on whether Langone had said "all in" during his presentation to the Board. His response was: "Well, first of all, I did not say all in." Of course, a witness's testimony must be viewed as a whole and one snippet of testimony cannot be taken out of its context and used to support or oppose a motion for summary judgment ( see Baillargeon v. Kings County Waterproofing Corp., 29 AD3d 838, 838-839; Mitchell v. Route 21 Assoc., 233 AD2d 485, 486). Furthermore, as Langone also repeatedly made clear during the questioning on the last sentence of the Speaking Points, the term "compensation" did not include the CAP award.

During this same line of questioning, Langone gave other relevant testimony With respect to his presentation to the Board, Langone repeatedly stated that the amount of Grasso's CAP award was "give[n]" or "broke[n] . . . out" "very clearly." In this regard, Langone also stressed that there was a "full discussion" of the special $5 million payment that, as is reflected in the penultimate sentence of the very Speaking Points on which the Attorney General relies, was not included in the CAP award. Indeed, at other points in the deposition, Langone testified more generally that he always gave to the Board the dollar amount of Grasso's CAP award at all of the February meetings.

Contrary to what the Attorney General argues in his brief, Langone's testimony about his presentation to the Board at the February 2002 meeting was not contradicted by the testimony of Gerald Levin, another director. When Levin was asked at his deposition (more than three years after the meeting) whether Langone had said during the meeting how much the CAP award was, Levin answered: "Either [Langone] did identify the number, or it wasn't necessary because he was identifying the variable compensation against which the 50 percent CAP was taken. And the fact that the $5 million [special award] was excluded for CAP purposes made it very clear that it [i.e., the CAP award] was $8,050,000."

By not excluding the possibility that Langone had not belabored the obvious, Levin did not with this answer, as the Attorney General argues, "thereby confirm[] the existence of at least a factual question about whether Langone made the necessary disclosures to his fellow directors." To the contrary, it confirms that at least for Levin all that was necessary was for Langone to state the amount of the variable compensation. Even assuming without any evidentiary support that this simple concept (divide variable compensation by two to determine the CAP award) was not obvious to all of the other directors, Levin's answer certainly does not preclude summary judgment. Like the last sentence of the February 2002 Speaking Points, it merely "g[i]ve[s] rise to nothing more than a shadowy semblance of an issue" insufficient to defeat summary judgment ( Hooke v. Speedy Auto Ctr., 4 AD3d 110, 112 [internal quotation marks omitted]).

The majority relies in crucial part on numerous assertions it makes about the excerpts from the deposition testimony of members of the Board that were submitted by the Attorney General in opposition to the motion. These assertions are erroneous at best. The broadest of them are the following:

"The Attorney General also submitted excerpts from the deposition testimony of a number of the Board members, including Deryck Maughan, Charles J. Bocklet, 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 — February 2002."

"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."

These assertions are notable in at least four aspects. First, the majority does not quote or paraphrase even a single example of this supposed testimony. Rather, the majority asserts only that "much" of it is "set forth" elsewhere in its writing. As discussed below, however, the majority can eke no support for its position from the excerpts of the deposition testimony that are referred to elsewhere in its writing. Second, the majority again makes claims only about what is "indicated," not what was testified to, by these Board members. Third, the majority makes no claim that when they voted to approve Grasso's bonus any of these seven Board members had misconceptions about or failed to understand the magnitude or effect of their votes on Grasso's CAP award. Rather, the majority speaks in far more general terms about alleged misconceptions and failures to understand relating to Grasso's "compensation." Fourth, the majority implicitly and illogically assumes that any such misconception or failure to understand by a Board member reflects a disclosure failure by Langone.

The truth is that none of the excerpts contain testimony from any of these directors that at the time of the votes in favor of Grasso's bonus awards, he or she was not aware of or did not understand that Grasso also would receive a CAP award of 50% of the amount of the bonus. The only testimony from any of the excerpts (the Attorney General submitted excerpts from the deposition testimony of 16 members of the Board) that remotely bears on these assertions by the majority was given by David Komansky and Linda Wachner. Mr. Komansky testified that without seeing the relevant documents, he could not remember (not that he did not understand at the time) what the impact of the compensation awards in 2000 and 2001 was on a pension benefit Grasso received, the "Supplemental Executive Retirement Plan" or "SERP" ( not the CAP award). Ms. Wachner testified only that she did not know how much money was being saved in terms of SERP benefits when the determination was made in February 2001 that the special $5 million bonus would not count for purposes of Grasso's SERP benefits.

The majority's other assertions about supposed deposition testimony or other ostensible evidence supporting its position also are baseless. The majority writes: "[I]t 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)."

The first sentence is unsupported and irrelevant. The worksheets were given to Compensation Committee members by Ashen when he met on a one-on-one basis with the members. Whether Ashen or Langone explained the changes in the format of the worksheets either before or at the February 2000 meeting of the Committee is of no moment at all. The complaint alleges a failure by Langone to make adequate disclosure to the Board, not the Committee, of Grasso's CAP award. Even assuming some unknown member or members of the Committee were confused by the format change in the worksheet prepared by Ashen for the February 2000 meeting of the Committee, any such confusion would be irrelevant to Langone's alleged liability. The relevant and decisive point is that no testimony or documentary evidence creates a material issue of fact that undercuts Langone's evidentiary showing that: (1) the Board understood that Grasso would receive an additional benefit under the CAP Program in the form of deferred compensation in the amount of 50% of his bonus, and (2) he specifically informed the Board at each of the Board meetings of the additional CAP awards.

As for the second sentence, the majority fails to identify the witnesses who purportedly gave such testimony. Presumably, however, the majority is referring to certain testimony (from either Deryck Maughan, Charles Bocklet, Robert Murphy, William Harrison or James Duryea, or all of these Board members) to which it refers, directly or indirectly, elsewhere in its writing. As discussed below, none of that testimony comes close to raising a material issue of fact that precludes summary judgment.

Before discussing that testimony, other particularly inscrutable references by the majority to the deposition testimony should be noted. At the end of its writing, as if by way of summary, the majority relies on both "inconsistent deposition testimony about Langone's oral presentations to the Compensation Committee and the Board between 2000 and 2002" and "deposition testimony indicating that Committee members were confused." Once again, the majority does not provide any details that would explain what testimony it is relying on or who gave the testimony. Nor does the majority provide any reason to conclude that the "inconsistent deposition testimony" relates to a material issue of fact concerning Langone's statements to the full Board about Grasso's CAP award. The majority is just as uninformative about the "testimony indicating that Committee members were confused." What were they confused about, when in point of time they were confused and why their confusion is relevant all are matters about which the majority is completely silent.

That silence reflects the simple reality that no member of the Board testified that when voting on Grasso's bonus he or she was "confused" or did not understand Grasso's CAP award. The repeated failures by the majority to provide any relevant particulars are telling. None are provided because they do not exist.

Putting aside the majority's unsupported generalizations about the deposition testimony, no material issue of fact is raised by any of the deposition excerpts the majority paraphrases or quotes. True, Deryck Maughan testified that the February 2000 worksheet prepared by Ashen "would have been clearer for everybody if there had been a column called 'CAP' and then a real total displayed." As already noted, however, any purported ambiguity in the worksheet prepared by Ashen and presented only to Compensation Committee members (who presumably would be even more knowledgeable about the CAP program than other Board members) cannot sensibly be equated with a disclosure failure by Langone, let alone such a failure in the presentation Langone made to the full Board. Moreover, Maughan left the Board in June 2000 and understandably did not have a "good memory of a CAP conversation" in the February 2000 meeting. Nonetheless, despite his "poor memory of the CAP conversation," he knew that it "took [Grasso's compensation] to some higher number." The perhaps more decisive point about Maughan's deposition is that he never testified that Langone failed to mention Grasso's CAP award in his presentation to the Board in February 2000.

In an apparent reference to Maughan and Charles Bocklet, another director, the majority states that "[t]wo other members of the Compensation Committee gave deposition testimony that they thought Grasso had been awarded approximately $8 million in total compensation for 1999." Similarly, after stating that Bocklet "testified at his deposition that he believed that Grasso's total 2000 compensation was $15 million," the majority immediately goes on to write that "[t]his was the value in the 'total compensation' column of the worksheet, not the $26.8 million Grasso was actually awarded." In substance, during their depositions these directors were asked by the Assistant Attorney General to guess, years after the relevant meetings of the Board, what Grasso's total "compensation" was in the years in question. Their incorrect "belief or recollection is not admissible proof of anything (other than the understandable fallibility of their memories). As a matter of logic, moreover, from their incorrect "belief about Grasso's total "compensation" — even putting aside the potential ambiguity (discussed above) in that term — it does not follow that any one component of that "compensation" was not disclosed to them. For these reasons, the raw recollections or beliefs of these two directors "g[i]ve[s] rise to nothing more than a shadowy semblance of an issue" ( Hooke v. Speedy Auto Ctr., 4 AD3d at 112). Furthermore, like all the other directors and staff who were present at the February meetings, neither Maughan nor Bocklet testified that Langone did not disclose Grasso's CAP award.

The majority also writes that "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." For the reasons just stated, what these directors "believed" years later does not raise a material issue of fact about whether Langone disclosed Grasso's CAP award. Furthermore, even if these directors had such an erroneous belief at the time they voted to approve the compensation — none of them so testified — that error cannot rationally be equated with a failure of Langone to make adequate disclosure (not, unless, Langone's duty to make adequate disclosure made him a guarantor that all Board members would understand him correctly).

Another reason the majority's reliance on these snippets of deposition testimony is misplaced is that the belief of these directors was correct. The amount of compensation that the Board "voted to approve" ($21.1 million) was in the $20 million range. The other components of Grasso's "compensation" (his salary of $1.4 million and his CAP award of $8.05 million) were not voted on but were, respectively, specified in or dictated by his employment agreement.

That the majority relies on such an irrelevant snippet from Murphy's testimony is particularly unfortunate given other testimony from Murphy that is highly relevant both to an understanding of that snippet and the core allegation of the complaint that Langone failed to make adequate disclosures to the Board about Grasso's CAP award. With specific reference to his testimony that he believed he had voted in 2002 for compensation for Grasso in 2001 in the "low 20s," Murphy testified he had been focusing on the discretionary components of Grasso's compensation that the Compensation Committee actually was approving, that he knew Grasso had other elements of his compensation that were not discretionary and that the CAP award was one of the components that the Committee and the Board did not have to vote on. He also testified that at the February 2002 meeting of the Compensation Committee he understood that by approving an incentive payment to Grasso of $16.1 million, "there would also be a payment into Mr. Grasso's CAP" Indeed, he testified that he understood all the elements of Grasso's compensation for each of the years he was on the Board and voted to approve it.

The majority ignores other highly relevant testimony from Murphy. Back in 1999, when Grasso's employment agreement was approved, Murphy understood that the 50% match of the CAP benefit to Grasso was in addition to his bonus. Asked if the 50% match was a difficult concept to understand and to apply, Murphy answered, "[n]o." Murphy never heard or saw anything that suggested to him that there was any confusion among Board members about what the 50% match meant. Asked if Langone ever said anything about CAP at any meeting of the Board or the Compensation Committee that he viewed as misleading, Murphy answered "[n]o." In short, far from creating a material issue of fact supporting denial of Langone's motion for summary judgment, Murphy's testimony supported that motion in every relevant respect.

That leaves only the majority's reliance on the excerpt from the deposition testimony of H. Carl McCall that the Attorney General submitted in opposition to the motion. That excerpt consists of three pages of deposition testimony in which McCall testified only that "as a member of the board, we did not receive full information, detailed information about the various components of the compensation" and that it was his "understanding that we did not always receive details about the components, including deferred income as one of the components." But even putting aside the ambiguous scope of the term "compensation," it hardly follows from the asserted fact that full or detailed information was not received, or that members of the Board did not receive even the basic information about Grasso's CAP award. McCall gave testimony on that very subject which was not included within the excerpt submitted by the Attorney General. Specifically, McCall testified that there "were discussions about a CAP program" but that he could not remember the details. Moreover, in the above-quoted testimony, McCall was referring to a memorandum captioned, "H. Carl McCall, Summary Of Events Regarding NYSE Executive Compensation." In another portion of the memorandum, one that the majority and the Attorney General do not mention, McCall states that "[a]lthough the board knew about and voted on annual salaries and awards, it was not informed about accumulated benefits and how particular salary actions would lead to pension on [ sic] long-term accumulations" (emphasis added). In short, nothing in McCall's testimony undercuts Langone's evidence that he disclosed the CAP award. If anything, the testimony and memorandum actually support Langone's position.

In the course of denying Langone's motion for summary judgment, Supreme Court stated that the issue of the sufficiency of the disclosure was a case of "he said, she said." To the contrary, however, just the opposite is true. As noted above, and as the majority does not dispute, numerous directors and others present at the February meetings of the Board testified that Langone expressly referred to Grasso's CAP award; no director or other person present at the meetings testified that Langone failed to disclose the CAP award. Nor does any documentary evidence raise a triable issue of fact with respect to whether Langone disclosed Grasso's CAP award. Thus, as Langone correctly observes, this is a case of "everyone said, no one said."

One last aspect of the majority's writing warrants a response. Although the complaint alleges that Langone failed to make adequate disclosures regarding Grasso's CAP award, the majority mints an entirely new theory of liability. Thus, the majority writes, "[i]n addition, the record raises questions as to whether Langone's executive compensation recommendations were in the best interest of the NYSE." This unsupported assertion — the majority refers to nothing in the record — is as irrelevant as it is conclusory and inscrutable. The Attorney General has never asserted that Langone is liable on this ground, not in his complaint, not in opposing Langone's motion and not in the brief he submitted to this Court.

One other contention by the Attorney General must be addressed. In opposing Langone's motion for summary judgment, the Attorney General charged that Langone also had breached his fiduciary duty to the Exchange by: (1) misleading the Compensation Committee regarding the forfeitable character of Grasso's CAP awards, and (2) failing to disclose Grasso's accumulated pension benefit, the "Supplemental Executive Retirement Plan" or "SERP" On this appeal, Langone asserts in his main brief that these two allegations stating new theories of liability were raised by the Attorney General for the first time in the brief he submitted to Supreme Court in opposition to Langone's motion for summary judgment.

The Attorney General, however, argues that Langone had "adequate notice" of these two theories of liability by virtue of, in part, paragraph 208 of the complaint. Although I have quoted it in full already, paragraph 208 bears repeating here given the specific argument the Attorney General makes. It provides: "Langone breached his fiduciary duty to the NYSE by misleading the NYSE Board of Directors — which had delegated to him the task of explaining the proposed compensation — about the amount of the annual compensation the Compensation Committee was recommending be approved by the Board, through, among other things, his failure to disclose that Grasso would be receiving as deferred compensation an additional 50 percent of his bonus or ICP award." According to the Attorney General, in light of the phrase "among other things" and "numerous other allegations regarding SERP in the complaint, . . . Langone was on notice that his failure to disclose SERP was included as a fundamental aspect of his breach of duty." With respect to the theory of liability premised on the charge that Langone misled the Compensation Committee regarding the forfeitable character of the CAP awards, the Attorney General does not similarly point to any other allegations in the complaint regarding their forfeitable character. Rather, the Attorney General relies only on the words "among other things" in paragraph 208 and interrogatory responses which assertedly "disclose" the charge that Langone had "[c]onceal[ed] the unvested status" of the CAP awards.

For numerous reasons, the two theories of liability charging that Langone had misled the Committee regarding the forfeitable nature of the CAP awards and failed to disclose accumulated SERP benefits are untimely and thus cannot support denial of Langone's motion for summary judgment. First, I agree with the reasoning of the panel of the United States Court of Appeals for the Federal Circuit in Korody-Colyer Corp. v. General Motors Corp. ( 828 F2d 1572) in rejecting the plaintiffs relation-back argument premised in part on the words "among other things" in the complaint. As the panel stated, these words constitute a "catchall and meaningless phrase" ( id. at 1575) and accepting the plaintiffs relation-back argument on the basis of that phrase "would undermine the notice pleading approach of the Federal Rules of Civil Procedure" ( id. at 1575-1576), and similarly the pleading requirements of the CPLR ( see CPLR 3013, 3014). In short, the phrase gives fair notice of nothing.

Second, the phrase is particularly unhelpful to the Attorney General because it refers to the allegation that Langone misled the Board "about the amount of the annual compensation the Compensation Committee was recommending be approved by the Board." Thus, at most this phrase purports to indicate that Langone misled the Board about Grasso's "annual compensation" through means other than the one specifically alleged. The new allegations relate to different subjects, the forfeitability of the deferred CAP awards and the accumulated retirement benefit.

Third, the "other allegations regarding SERP in the complaint" did not give Langone fair notice that he was being charged with breaching his fiduciary duty by failing to disclose Grasso's accumulated SERP benefit. Some of those "other allegations regarding SERP" merely state the fact that SERP was one of the benefits Grasso received (paragraph 37), explain background facts relating to SERP-type benefits generally, Grasso's contractual entitlement to "SERP-like benefits," and the total of the SERP benefit for Grasso as of 2002 (paragraphs 46-48), or relate to and are contained within one of the causes of action against Grasso (paragraphs 167-172). Another alleges the nondisclosure — it does not say anything identifying the person or persons responsible for the nondisclosure — of certain SERP benefits pursuant to Grasso's 1995 and 1999 employment agreements, both of which were entered into before Langone became chair of the Compensation Committee (paragraphs 70, 78-82). This allegation, moreover, appears to relate to one or more of the six causes of action against Grasso, as it asserts as well that this allegedly undisclosed benefit "unlawfully enriched Grasso by providing him with an interest-free loan at a corresponding cost to the NYSE" (paragraphs 70).

Similarly, another of the allegations merely alleges that "information was withheld from the Board" about the effect the compensation awards would have in increasing Grasso's SERP benefit and the amount of the accumulated benefit (paragraph 20 [ii], [iii]). Again, nothing is alleged about the identity of the person or persons responsible for withholding this information. To the extent the complaint alleges any entity or person to be responsible for not disclosing SERP benefits, paragraph 85 refers to an analysis prepared in February 2001 of "the multiplier effect" that a bonus award could have on Grasso's SERP benefit and to an accompanying "spreadsheet detailing the amount of Grasso's accumulated SERP" It then goes on to allege only that " [t]he NYSE did not transmit the . . . analysis, the information it contained, or the spreadsheet to the members of the Compensation Committee or Board of Directors" (emphasis added). Obviously, Langone is not the "NYSE" but was a member of both of the entities to which the information was not transmitted. At no point does the complaint allege that Langone ever received either the analysis, the information it contained, or the spreadsheet. The apparent point of these allegations, moreover, is stated in paragraphs 88 and 89. That is, they support certain of the causes of action against Grasso asserting that the SERP benefit awards are invalid under N-PCL 715 (f) and are "void and subject to rescission" (paragraph 89).

Fourth, the Attorney General's reliance on the interrogatory responses to save the two unpleaded theories of liability is meritless. Langone moved for summary judgment by notice of motion dated January 23, 2006. The interrogatory responses are dated May 12, 2006, nearly five months later, a little over a month before the Attorney General's opposing papers were submitted. By the time Langone received the interrogatory responses, the massive discovery efforts of the parties were virtually if not actually completed.

For these reasons, the two unpleaded theories of liability are untimely and cannot support the denial of Langone's motion ( see Abalola v. Flower Hosp., 44 AD3d 522, 522 [1st Dept 2007] ["Plaintiffs physician expert also improperly raised, for the first time in opposition to the summary judgment motion, a new theory of liability . . . that had not been set forth in the complaint or bills of particulars"]; Mathew v. Mishra, 41 AD3d 1230, 1231 [4th Dept 2007] ["a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability . . . for the first time in opposition to the motion" (internal quotation marks and brackets omitted)]; Pinn v. Baker's Variety, 32 AD3d 463, 464 [2d Dept 2006] ["(r)aised for the first time in opposition to the motion for summary judgment, this theory (of liability) should not have been considered as a basis for defeating summary judgment"]).

Finally, as noted earlier, given my conclusion that Langone is entitled to summary judgment on the ground that the Attorney General failed to raise a material issue of fact on the question of whether he made disclosure of Grasso's CAP award at the February meetings, I need not reach Langone's arguments that he also is entitled to summary judgment on the grounds that he had no duty to remind the Board about the CAP benefit and the Attorney General failed to raise an issue of fact concerning causation. Because it affirms the denial of Langone's motion, however, the majority must come to terms with Langone's additional arguments.

With respect to the issue of the scope of the duty owed by Langone, none of the cases cited by the majority in its brief discussion of the issue hold that the high standard fiduciaries must observe (which, of course, applies as well to the other Board members) required Langone to remind the members of the Board of what they either actually knew about Grasso's CAP benefit (as the submissions on the motion demonstrate) or should have known. After all, each of the other Board members had an independent duty in approving Grasso's compensation awards to act on a reasonably informed basis after making a reasonable inquiry into material matters ( see Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F2d 264, 274-275 [2d Cir 1986]). The majority similarly fails to meet Langone's causality argument. Suffice it to say that it is far from obvious that, even assuming a majority of the Board did not know of Grasso's participation in the CAP program, the Exchange was injured by a breach of a duty that Langone owed rather than a breach by the directors who did not know.