

Linder v Innovative Commercial Sys. LLC (2015 NY Slip Op 03617)





Linder v Innovative Commercial Sys. LLC


2015 NY Slip Op 03617


Decided on April 30, 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 April 30, 2015

Acosta, J.P., Saxe, DeGrasse, Richter, JJ.


14983 105528/10

[*1] Gary Linder, Plaintiff-Appellant,
vInnovative Commercial Systems LLC, et al., Defendants-Respondents.


Siegel & Reiner, New York (Carl D. Bernstein and Craig Gold of counsel), for appellant.
Hodgson Russ LLP, New York (Mark A. Harmon of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered October 18, 2013, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Given the seven-year course of dealing between the parties, in which plaintiff received regular statements about his commissions, and the always adhered-to practice of paying the commissions only if and when customers paid on the contracts plaintiff procured, plaintiff earned his commissions upon payment by the customer (see Pachter v Bernard Hodes Group, Inc., 10 NY3d 609, 617-618 [2008]). Thus, absent an agreement expressly providing for posttermination commissions, plaintiff, an at-will commissions salesman, was not entitled to commissions for payments made by customers after his termination (see id.; Yudell v Israel & Assoc., 248 AD2d 189, 189-190 [1st Dept 1998]). Furthermore, since plaintiff was fully compensated under his agreement with defendants, he had no claim for a violation of the Labor Law (see Tierney v Capricorn Invs., 189 AD2d 629, 632 [1st Dept 1993], lv denied 81 NY2d 710 [1993]). Nor did he have a claim for unjust enrichment, where defendants merely retained the amounts that they were not obligated to pay for posttermination commissions.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 30, 2015
CLERK


