Gottfried v. MaizelGottfried v. Maizel
that branch of the defendant‘s cross motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract.
In a letter dated July 31, 2003, the defendant stated that the plaintiff was entitled to commissions on renewals “on existing cases as long as you remain with the firm.” However, in a letter dated July 14, 2005, the defendant stated that, “[i]f you leave [the firm], all commissions not in your name will not be vested and all commissions in your name will ‘travel’ with you according to the guidelines of the carrier.”
Since the relationship was at will, the plaintiff would be deemed to have assented to each of the foregoing by remaining in the relationship after receipt of the letters (see Bottini v Lewis & Judge Co., 211 AD2d 1006, 1008 [1995]; General Elec. Tech. Servs. Co. v Clinton, 173 AD2d 86 [1991]). Neither party, however, established, as a matter of law, whether or not the plaintiff assented to the July 2005 terms by remaining in the relationship and, absent an express agreement, an at-will sales representative is not entitled to post-termination commissions (see McGimpsey v J. Robert Folchetti & Assoc., LLC, 19 AD3d 658 [2005]; UWC, Inc. v Eagle Indus., 213 AD2d 1009 [1995]; Mackie v La Salle Indus., 92 AD2d 821 [1983]).
Since the counterclaims sought to recover only those payments that the defendant allegedly made to the plaintiff after the termination of their relationship, and since the plaintiff failed to establish, as a matter of law, either the date on which the parties’ relationship terminated or that he was entitled to post-termination commissions, the Supreme Court properly denied the plaintiff‘s motion for summary judgment dismissing counterclaims (see Cirillo v Muss Dev. Co., 278 AD2d 353, 354 [2000]; cf. UWC, Inc. v Eagle Indus., 213 AD2d at 1011).
As to the branch of the defendant‘s cross motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract, both the July 2003 and July 2005 letters provided that the plaintiff would be entitled to commissions at least until the plaintiff‘s relationship with the firm was terminated. Since the defendant failed to establish as a matter of law when the plaintiff‘s relationship with the firm ended, the Supreme Court properly denied that branch of the defendant‘s cross motion which was for summary judgment dismissing the breach of contract cause of action (see Kern, Suslow Sec. v Baytree Assoc., 264 AD2d 639 [1999]).
The parties’ remaining contentions are without merit. Rivera, J.P., Dillon, Miller and Roman, JJ., concur.