MICHELE MOORE HAARR INDIVIDUALLY AND DOING BUSINESS AS PROPEL TECHNOLOGY PLAINTIFF RESPONDENT v. AND MICHAEL ALLEN DEFENDANT

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Supreme Court, Appellate Division, Fourth Department.

MICHELE MOORE–HAARR, INDIVIDUALLY, AND DOING BUSINESS AS PROPEL TECHNOLOGY, PLAINTIFF–RESPONDENT, v. Z–AXIS, INC., DEFENDANT–APPELLANT, AND MICHAEL ALLEN, DEFENDANT.

CA 16–00178

Decided: November 18, 2016

PRESENT:  WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ. BARCLAY DAMON LLP, ROCHESTER (SCOTT P. ROGOFF OF COUNSEL), FOR DEFENDANT–APPELLANT. GALLO & IACOVANGELO, LLP, ROCHESTER (JOSEPH B. RIZZO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

Z–AXIS, Inc. and granted that part of the cross motion of plaintiff seeking to compel responses to her notice to admit.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied in its entirety, the motion is granted in its entirety, and the complaint against defendant Z–AXIS, Inc. is dismissed.

Memorandum:  In this action for breach of contract, plaintiff seeks to recover sales commissions totaling over $89,000 from Z–AXIS, Inc. (defendant).  The sales for which plaintiff seeks the commissions were made by defendant, and the goods were shipped to and paid for by defendant's customers, after defendant terminated its relationship with plaintiff.  According to plaintiff, however, she earned the commissions before her termination, because they were brought about by sales quotes or solicitations prepared before such termination.  Supreme Court granted defendants' motion for summary judgment only in part, dismissing the complaint against defendant Michael Allen, and we agree with defendants that the court should have granted their motion in its entirety.  An at-will sales representative, agent, or employee is not entitled to posttermination commissions absent an agreement expressly providing for such commissions (see Devany v. Brockway Dev., LLC, 72 AD3d 1008, 1009;  Gordon v. Wilson, 68 AD3d 1058, 1060;  UWC, Inc. v. Eagle Indus., 213 A.D.2d 1009, 1011, lv. denied 85 N.Y.2d 812).  On their motion, defendants established as a matter of law that there was no such express agreement between the parties and indeed that the subject of posttermination commissions was never discussed during the parties' relationship, and plaintiff failed to raise a triable question of fact in opposition to the motion (see Devany, 72 AD3d at 1009;  UWC, Inc., 213 A.D.2d at 1011).  Moreover, the record establishes that, during the course of dealing between the parties, at no time was plaintiff paid a sales commission prior to defendant's shipment of the goods to its customer and receipt of that customer's payment for such goods (see Linder v Innovative Commercial Sys. LLC, 127 AD3d 670, 670).  Thus, there is no support in the record for plaintiff's claim that she earned the commissions in question before her termination.

Frances E. Cafarell

Clerk of the Court