Ann Kronick, appellant, v. L.P. Thebault Company, Inc., a/k/a L.P. Thebault Company, respondent. (2010)

Argued-January 4, 2010

DECISION & ORDER

In an action, inter alia, to recover unpaid wages, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), entered December 1, 2008, which granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the plaintiff's motion which was to dismiss the cause of action to recover unpaid wages.   Accepting as true the factual allegations set forth in the complaint in support of that cause of action, and according to the plaintiff the benefit of every possible favorable inference to be drawn therefrom (see Leon v. Martinez, 84 N.Y.2d 83, 87-88;  Andre Strishak & Assoc., v. Hewlett Packard Co., 300 A.D.2d 608, 609), the complaint failed to state a cause of action to recover unpaid wages.   Indeed, since the plaintiff alleged that she was an at-will employee of the defendant, it is clear that the defendant had the right to unilaterally alter the plaintiff's draw against commissions prospectively, subject to the plaintiff's right to leave the employment if she found the new terms unacceptable (see Hanlon v. McFadden Publs., 302 N.Y. 502, 505-506;  JCS Controls, Inc. v. Stacey, 57 AD3d 1372, 1373;  Plank v. Watson Bowman Acme Corp., 46 AD3d 1338, 1339;  Berger v. Roosevelt Inv. Group, 28 AD3d 345, 346;  General Elec. Tech. Servs.  Co. v Clinton, 173 A.D.2d 86, 88).   By remaining in the defendant's employ under the new compensation terms, the plaintiff is deemed to have accepted them (see Shah v. Wilco Sys. Inc., 27 AD3d 169, 174;  Gebhardt v Time Warner Entertainment-Advance/Newhouse, 284 A.D.2d 978, 979;  Bottini v. Lewis & Judge Co., 211 A.D.2d 1006;  Waldman v. Englishtown Sportswear, 92 A.D.2d 833), regardless of her failure to sign the notice advising her of the new terms (see Dwyer v. Burlington Broadcasters, 295 A.D.2d 745, 746).

The plaintiff's current contention concerning her unused vacation time is not properly before this Court, since she abandoned that claim by failing to oppose the branch of the defendant's motion which was to dismiss it (see generally Ellis v. Emerson, 34 AD3d 1334, 1335;  Genovese v. Gambino, 309 A.D.2d 832, 833).

The plaintiff's remaining contentions are without merit.

SKELOS, J.P., SANTUCCI, DICKERSON and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court