TEREBELO v. ASP METRO INC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about July 1, 2024, which, following a bench trial, dismissed plaintiff's complaint in its entirety and directed entry of judgment in favor of defendant, unanimously modified, on the law, to reinstate plaintiff's claim for pre-termination commissions and direct entry of judgment in his favor in the amount of $3,070.16, plus interest, and otherwise affirmed, without costs.

Supreme Court properly determined that plaintiff failed to establish his entitlement to post-termination commissions, which were not provided for in his employment contract.  Although plaintiff testified that the parties entered into an oral agreement for post-termination commissions, the contract contains a merger clause requiring modifications to be in writing signed by the parties (see General Obligations Law § 15–301[1]).  Furthermore, plaintiff's testimony concerning his partial performance of the alleged oral modification and his detrimental reliance on it was insufficient because his conduct was not “ ‘unequivocally referable’ to the new, oral agreement” but was consistent with defendant's agreement to pay him commissions before his termination (Richardson & Lucas, Inc. v. New York Athletic Club of City of New York, 304 A.D.2d 462, 463, 758 N.Y.S.2d 321 [1st Dept. 2003], quoting Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 343, 397 N.Y.S.2d 922, 366 N.E.2d 1279 [1977];  see Rubin v. Napoli Bern Ripka Shkolnik, LLP, 179 A.D.3d 495, 497, 118 N.Y.S.3d 4 [1st Dept. 2020]).

Although defendant prevailed on the claim submitted to the court for trial, the parties agreed at the outset of the trial that plaintiff was owed $3,070.16 on his claim to recover unpaid commissions earned before his termination in 2016.  Accordingly, the post-trial order should not have dismissed the complaint in its entirety, but only plaintiff's claim for post-termination commissions, and plaintiff is entitled to recover unpaid commissions in the stipulated amount, plus interest (see CPLR 5001[a], 5701[a]).