PRODUCTION PRODUCTS COMPANY v. VISION CORPORATION (2000)

 Supreme Court properly granted that part of plaintiff's motion seeking partial summary judgment determining that plaintiff had lawfully terminated a Sales Representative Agreement (Agreement).   Pursuant to the Agreement, executed July 1, 1993, defendant was appointed as plaintiff's sales representative in the Midwest.   Either party could terminate the Agreement effective at the end of a calendar month upon 60 days' prior written notice.   Commissions would be paid on any order placed before the effective termination date and shipped within 90 days after the effective termination date.   Defendant contends that plaintiff's attempt to terminate the Agreement by letter dated November 20, 1996 was ineffective.   We disagree.   The Agreement was for an indefinite period of time and thus is presumed to constitute an at-will employment arrangement (see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300, 461 N.Y.S.2d 232, 448 N.E.2d 86).   The employer has an “unfettered right” to terminate the Agreement (Murphy v. American Home Prods. Corp., supra, at 304, 461 N.Y.S.2d 232, 448 N.E.2d 86).   There is no merit to defendant's contention that the Agreement was subject to an implied obligation of good faith;  such an implied obligation would be inconsistent with the unfettered right of termination (see, Murphy v. American Home Prods. Corp., supra, at 304-305, 461 N.Y.S.2d 232, 448 N.E.2d 86).   Nor was there an express provision requiring good faith with respect to termination.   The provision that “[a]ll decisions regarding this Agreement made by the Manufacturer in good faith shall be binding” does not create an obligation of good faith where one did not already exist.

 The court also properly granted that part of plaintiff's motion seeking summary judgment dismissing the second and third counterclaims.   There is no basis for recovery of commissions beyond those provided for in the Agreement.   Defendant may not recover under a theory of unjust enrichment;  the existence of a valid and enforceable written agreement precludes recovery on such a quasi-contract theory (see, Eagle Comtronics v. Pico Prods., 256 A.D.2d 1202, 1202-1203, 682 N.Y.S.2d 505;  see also, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190).   There is no basis for recovery under the “procuring cause” theory because that theory does not apply to sales representative agreements (see, UWC, Inc. v. Eagle Indus., 213 A.D.2d 1009, 1010-1011, 624 N.Y.S.2d 321, lv. denied 85 N.Y.2d 812, 631 N.Y.S.2d 288, 655 N.E.2d 401).   An at-will sales representative is entitled to post-discharge commissions “only if the parties' agreement expressly provided for such compensation” (UWC, Inc. v. Eagle Indus., supra, at 1011, 624 N.Y.S.2d 321).   Unsupported allegations of entitlement to commissions beyond those provided for in the Agreement are insufficient to defeat a motion for summary judgment (see, Metro Sports Sales v. Spenco Med. Corp., 252 A.D.2d 484, 484-485, 676 N.Y.S.2d 492).

 Finally, the court properly granted that part of plaintiff's motion for dismissal of the fourth counterclaim, seeking punitive damages for fraud and/or gross negligence.   Defendant failed to allege the existence of a false representation, an essential element of a fraud claim (see, Edison Stone Corp. v. 42nd St. Dev. Corp., 145 A.D.2d 249, 257, 538 N.Y.S.2d 249, citing Reno v. Bull, 226 N.Y. 546, 550, 124 N.E. 144;  see also, Ambassador Factors v. Kandel & Co., 215 A.D.2d 305, 307, 626 N.Y.S.2d 803).   Further, the pleadings failed to establish a legal duty independent of the contract that could form the basis for the tort of gross negligence (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., supra, at 390, 521 N.Y.S.2d 653, 516 N.E.2d 190;  see also, Wapnick v. Seven Park Ave. Corp., 240 A.D.2d 245, 247, 658 N.Y.S.2d 604;  Fleet Bank of N.Y. v. Douglas-Guardian Warehouse Corp., 229 A.D.2d 962, 645 N.Y.S.2d 384).   Finally, New York does not recognize a cause of action for punitive damages (see, A.W. Fiur Co. v. Ataka & Co., 71 A.D.2d 370, 376, 422 N.Y.S.2d 419).

Order unanimously affirmed without costs.

MEMORANDUM: