

Smart Trike, MNF, PTE, Ltd. v Piermont Prods., LLC (2017 NY Slip Op 01127)





Smart Trike, MNF, PTE, Ltd. v Piermont Prods., LLC


2017 NY Slip Op 01127


Decided on February 10, 2017


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 February 10, 2017

Sweeny, J.P., Acosta, Mazzarelli, Manzanet-Daniels, Webber, JJ.


650376/12 -3062A 3062 3061

[*1] Smart Trike, MNF, PTE, Ltd., Plaintiff-Respondent-Appellant,
vPiermont Products, LLC, formerly known as Smart Trike, LLC, Defendant-Appellant-Respondent, Robert Kramer, et al., Defendants.


Rand Rosenzweig Radley & Gordon LLP, White Plains (Charles L. Rosenzweig of counsel), for appellant-respondent.
Lowenstein Sandler LLP, New York (Jeffrey J. Wild of counsel), for respondent-appellant.

Appeals from order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 12, 2014, and order, same court and Justice, entered October 16, 2015, as supplemented by order entered on or about January 29, 2016, deemed appeals from judgment, same court and Justice, entered July 12, 2016, in plaintiff's favor (CPLR 5501[c]), and, so considered, said judgment unanimously affirmed, with costs.
The motion court correctly granted plaintiff summary judgment dismissing the counterclaims except insofar as the plain language of the parties' agreement required plaintiff to provide six months' notice of the termination of the agreement, during which period defendant was entitled to its earned commissions (W.W.W. Assoc. v Giancontieri , 77 NY2d 157, 162 [1990]).
Because defendant held more of plaintiff's money than the amount of its own claimed commissions, the motion court correctly found the New Jersey Sales Representatives' Rights Act, pertaining to "unpaid" commissions (see  NJ Stat Ann 2A:61A-2), inapplicable. The court also correctly concluded that New York Labor Law § 191-c did not apply to defendant, which admitted that it only solicited orders from its headquarters in New Jersey
(see  § 191-a[d]).
The plain language of the contract defeats the counterclaim for lost profits.
We perceive no error in the starting date set by the court for computing prejudgment interest (see  CPLR 5001).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 10, 2017
CLERK


