Starlite Media LLC v Pope

Starlite Media LLC v Pope 2015 NY Slip Op 04213 Decided on May 14, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2015
Friedman, J.P., Saxe, Richter, Manzanet-Daniels, JJ.
15109 114163/10

[*1] Starlite Media LLC, Plaintiff-Appellant,

v

Suzanne Pope, Defendant-Respondent.

Cullen and Dykman, Garden City (Kevin P. McDonough of counsel), for appellant.

Law Office of William B. Baier, Bohemia (William B. Baier of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered April 15, 2014, which, to the extent appealed from, denied plaintiff's cross motion for summary judgment dismissing defendant's counterclaim for unpaid commissions, unanimously affirmed, without costs.

It is true that plaintiff established that draws carried over from year to year and that defendant failed to raise a triable question of fact as to this issue. However, even if defendant's draw carried over, plaintiff could still owe her money, as admitted in the affidavit of one of its witnesses, if she was entitled to commissions on business that came in on her accounts after plaintiff terminated her. Plaintiff submitted evidence of industry custom, but defendant denied this at her deposition, creating an issue of fact (see generally Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013] [on summary judgment motion, "(t)he evidence will be construed in the light most favorable to the one moved against"]).

Plaintiff's argument that its cross motion should have been granted due to deficiencies in defendant's opposition, is unavailing (see CPLR 2001).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK