Seigel v Techlaw, Inc.

[*1] Seigel v Techlaw, Inc. 2008 NY Slip Op 52127(U) [21 Misc 3d 131(A)] Decided on October 27, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1152 Q C.

Jeffrey S. Seigel, Appellant,

against

Techlaw, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 29, 2006, deemed from a judgment of said court entered July 11, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 29, 2006 order granting defendant's motion for summary judgment, dismissed the complaint and awarded defendant $90 in costs and disbursements.

Judgment reversed without costs, so much of the order entered March 29, 2006 as granted defendant's motion for summary judgment seeking dismissal of plaintiff's claims for pretermination commissions vacated, defendant's motion denied to the extent it sought to dismiss plaintiff's claims for pretermination commissions, and matter remanded to the Civil Court for all further proceedings.

Plaintiff commenced this action against his former employer seeking, in effect, to recover unpaid commissions on revenues received by defendant, after plaintiff left the company, for all contracts originated due to his substantial efforts while employed by the company. Defendant moved for summary judgment dismissing the complaint, arguing, inter alia, that as an at-will employee, plaintiff was not entitled to commissions on any revenues received by defendant after plaintiff's termination. The court below granted defendant's motion, finding that "[t]he law is clear that an at[-]will employee is entitled to post termination commissions only if the parties expressly provide for such compensation," and citing McGimpsey v J. Robert Folchetti & Assoc., LLC (19 AD3d 658 [2005]) and Swits v New York Sys. Exch. (281 AD2d 833 [2001]).

Plaintiff appeals, concentrating his argument on two contracts between defendant and Berlack, Israels & Liberman LLP that he alleges were finalized prior to plaintiff's departure from the company. Plaintiff's employment agreement states that plaintiff would be eligible for commissions on commissionable revenues received from a client due to substantial efforts on his [*2]part. We find that plaintiff has raised a triable issue of fact as to the existence of revenues, received by defendant after plaintiff's termination, pursuant to contracts procured by defendant prior to plaintiff's termination through plaintiff's substantial efforts, on which plaintiff would be entitled to commissions (see McGimpsey v J. Robert Folchetti & Assoc., LLC, 19 AD3d 658 [2005], supra; Yudell v Israel & Assoc., 248 AD2d 189 [1998]). Accordingly, defendant's motion for summary judgment should have been denied to the extent that it sought dismissal of plaintiff's claims for pretermination commissions.

In the absence of an agreement to the contrary, plaintiff is not entitled to commissions on revenues from subsequent renewals of contracts finalized during his tenure with the company (see Swits v New York Sys. Exch., 281 AD2d 833 [2001], supra). To the extent the order of the lower court dismissed such claims for posttermination commissions, the order was proper.

Defendant's remaining contention is without merit.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008