POLYFUSION ELECTRONICS INC PLAINTIFF RESPONDENT APPELLANT v. PROMARK ELECTRONICS INC AND ROBERT GATHERCOLE DEFENDANTS APPELLANTS RESPONDENTS

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

POLYFUSION ELECTRONICS, INC., PLAINTIFF–RESPONDENT -APPELLANT, v. PROMARK ELECTRONICS, INC. AND ROBERT GATHERCOLE, DEFENDANTS–APPELLANTS–RESPONDENTS.

CA 12–02035

Decided: July 19, 2013

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. WOODS OVIATT GILMAN, LLP, ROCHESTER (ANDREW J. RYAN OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS. LAWRENCE C. BROWN, CHEEKTOWAGA, FOR PLAINTIFF–RESPONDENT–APPELLANT.

MEMORANDUM AND ORDER

Appeal and cross appeal from a judgment of the Supreme Court, Erie County (John A. Michalek, J.), entered December 22, 2011.   The judgment dismissed the complaint and awarded defendant Promark Electronics, Inc., money damages on the fourth counterclaim.

We agree with defendants on their appeal that Supreme Court should have awarded Promark judgment on the second counterclaim, breach of contract, rather than on the fourth counterclaim, for quantum meruit.   We therefore modify the judgment accordingly.   The agreement between the parties was an enforceable unilateral contract (see Petterson v. Pattberg, 248 N.Y. 86, 88), and the existence of an enforceable written contract between the parties precludes recovery in quantum meruit (see Cox v. NAP Constr.   Co., Inc., 10 NY3d 592, 607).   Plaintiff's contention on its cross appeal that there were additional unwritten requirements that defendants failed to fulfill and thus that defendants were not entitled to judgment in their favor is without merit;  parole evidence is not admissible here because there is no ambiguity in the contract between plaintiff and defendants (see Schron v. Troutman Sanders LLP, 20 NY3d 430, 436;  W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162).

We further agree with defendants that Promark is entitled to judgment on the first counterclaim, alleging the violation of Labor Law § 191–c.  Labor Law § 191–c (1) provides that, “[w]hen a contract between a principal and a sales representative is terminated, all earned commissions shall be paid within five business days after termination or within five business days after they become due in the case of earned commissions not due when the contract is terminated.”  Labor Law § 191–c (3) provides that “[a] principal who fails to comply with the provisions of this section concerning timely payment of all earned commissions shall be liable to the sales representative in a civil action for double damages.   The prevailing party in any such action shall be entitled to an award of reasonable attorney's fees, court costs, and disbursements.”   It is undisputed that plaintiff failed to pay defendants commissions within five business days after they became due, and the record establishes that plaintiff was a “principal” and defendants were “sales representative[s]” for purposes of the statute.   We therefore further modify the judgment by awarding Promark damages in the amount of $47,589.15 on the first counterclaim, representing double damages of the amount awarded on the breach of contract claim, and we remit the matter to Supreme Court for a calculation of reasonable attorney's fees (see Zeman v. Falconer Elecs., Inc., 55 AD3d 1240, 1241–1242).   We note that the judgment includes an award of costs to defendants.

Finally, we conclude that the court lacked discretion to vary the statutorily-prescribed interest rate of 9% per annum (see CPLR 5004).   As this Court has previously recognized, interest at the rate of 9% per annum is mandatory for “sum[s] awarded because of a breach of performance of a contract” (CPLR 5001 [a];  see Urban v. B.R. Guest, Inc., 45 AD3d 1418, 1418).   We therefore further modify the judgment accordingly.

Frances E. Cafarell

Clerk of the Court