Cammann v Kaplan

[*1] Cammann v Kaplan 2012 NY Slip Op 51499(U) Decided on August 6, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., NICOLAI and LaSALLE, JJ
2011-98 P C.

Shaydie Cammann, Appellant,

against

Peggy Kaplan and JOSEPH KAPLAN, Defendants, -and- PRUDENTIAL WORLD HOMES, Respondent.

Appeal, on the ground of inadequacy, from a judgment of the Justice Court of the Town of Carmel, Putnam County (Joseph J. Spofford, Jr., J.), entered October 4, 2010. The judgment, after a nonjury trial of plaintiff's consolidated actions, awarded plaintiff the principal sum of $796.50.

ORDERED that the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $2,730; as so modified, the judgment is affirmed, without costs.

In these consolidated small claims actions seeking, insofar as is relevant to this appeal, to recover two brokerage commissions allegedly owed to plaintiff by Prudential World Homes (defendant), plaintiff's former employer, plaintiff appeals, on the ground of inadequacy, from a judgment, following a nonjury trial, awarding her the principal sum of $796.50. [*2]

Upon a review of the record, we conclude that substantial justice (UJCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]) requires that the award to plaintiff be increased. The evidence adduced at trial established that defendant had ultimately received a total of $11,600 (the Justice Court erroneously found that defendant had received a total of $11,165) in commissions following the closing of two real estate transactions that plaintiff had brought to contract before leaving defendant's employ. Additionally, defendant incurred $3,200 in legal fees in collecting one of those two commissions. Paragraph 10.5 of defendant's policies and procedures provides that, where legal expenses are incurred, they are to be shared by defendant and the associate in the same proportion as they would normally share the commission resulting from such a transaction. Thus, when the $11,600 in total commissions received by defendant is multiplied by 32.5%, the percentage to which plaintiff, as a departing associate, was entitled pursuant to defendant's policies and procedures, plaintiff was entitled, in the first instance, to recover the sum of $3,770 as her share of the commissions. However, when that amount is reduced by plaintiff's share (32.5%) of the $3,200 that defendant incurred in legal fees, plaintiff is ultimately entitled to a net principal sum of $2,730. Consequently, the amount awarded to plaintiff was inadequate.

Accordingly, the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $2,730.

LaCava, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: August 06, 2012