CENTERBANK MORTGAGE COMPANY v. SHAPIRO (1997)

In an action to recover excess monies paid to an employee from a drawing account, the defendant appeals from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered April 29, 1996, which, upon an order of the same court dated March 4, 1996, granting the plaintiff's motion for summary judgment, was in favor of the plaintiff and against him in the sum of $3,893.67.   The defendant's notice of appeal from the order dated March 4, 1996, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] ).

ORDERED that the judgment is affirmed, with costs.

It is well settled that an action to recover excess monies paid to an employee from a drawing account “is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned” (Boutique Indus. v. Sobel, 223 A.D.2d 398, 399, 636 N.Y.S.2d 328 [citations omitted];  see, Posner v. Precision Shapes, 271 App.Div. 435, 65 N.Y.S.2d 733), but without such an agreement, express or implied, the employer cannot recover such excess from the employee (Pease Piano Co. v. Taylor, 197 App.Div. 468, 189 N.Y.S. 425, affd. 232 N.Y. 504, 134 N.E. 548;  Nationwide Mut. Ins. Co. v. Timon, 9 A.D.2d 1018, 194 N.Y.S.2d 429;  see, Carter v. Bradlee, 245 App.Div. 49, 52, 280 N.Y.S. 368, affd. 269 N.Y. 664, 200 N.E. 48;  Posner v. Precision Shapes, supra, at 439, 65 N.Y.S.2d 733).   The court correctly determined that the defendant agreed to repay draws against unearned commissions with respect to draws taken beyond the 90th day of employment.

MEMORANDUM BY THE COURT.