TAMARA BROKERAGE INC v. ANDREOLI (2005)

In an action to recover unpaid commissions, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), entered August 23, 2004, as granted that branch of the motion of the defendants Cosmo Andreoli and Richard Andreoli which was for summary judgment dismissing so much of the complaint as sought to recover commissions allegedly earned upon the renewal of insurance policies placed by the plaintiff through the moving defendants.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly determined that the statute of frauds barred enforcement of that portion of the oral agreement between the appellant and the respondents regarding the sharing of commissions on renewal policies (see I. Levine & Sons v. Physicians' Reciprocal Insurers, 246 A.D.2d 577, 667 N.Y.S.2d 279;  Apostolos v. R.D.T. Brokerage Corp., 159 A.D.2d 62, 559 N.Y.S.2d 295).   The agreement was indefinite in nature and completely within the control of third-party policyholders, and as such was unenforceable in the absence of a writing (id.;   see General Obligations Law § 5-701[a][1] ).