618 N.Y.S.2d 724 | N.Y. App. Div. | 1994
—Order, Supreme Court, New York County (Burton Sherman, J.), entered June 14, 1993, denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross-motion for summary judgment as to liability on the second and third causes of action, unanimously modified, on the law, to grant defendant’s motion as to the first cause of action and, except as thus modified, affirmed, without costs or disbursements.
The IAS Court’s reliance on North Shore Bottling Co. v Schmidt & Sons (22 NY2d 171), which involved two parties and did not involve a contract for commissions on sales to third parties, is misplaced. Thus, the contract in North Shore, like employment-at-will contracts, could be performed within one year since the defendant could terminate it at any time. It was therefore held to be outside the statute of frauds. Here, in contrast, the contract asserted calls for the rendering of services and payment of commissions over an indefinite period of time with a third party having control over the duration of the obligation to pay commissions. Since the contract sued upon, as a matter of law, could not be performed within one year its enforcement is barred. Nor do the letters attached to the complaint constitute a writing sufficient to satisfy the
The letters attached to the complaint, acknowledging defendant’s obligation to compensate plaintiff for his “involvement” in bringing about the agreement between defendant and Penney, do, however, satisfy the statute of frauds insofar as plaintiffs second and third causes of action for quantum meruit and unjust enrichment, respectively, are concerned. As to these claims, a memorandum sufficient to satisfy the statute of frauds “need only evidence the fact of plaintiffs employment by defendant to render the alleged services. The obligation of the defendant to pay reasonable compensation for the services is then implied.” (Cohon & Co. v Russell, 23 NY2d 569, 575-576.) A reading of the letters clearly negates defendant’s claim that they were written in the context of settlement negotiations and plaintiff was properly awarded summary judgment as to liability on these causes of action. In opposing summary judgment, defendant’s Deputy Secretary General, the author of one of the two letters annexed to the complaint, states, in conclusory fashion, “We maintained then, as now, that [plaintiff] did nothing to earn any compensation on the apparel agreement.” This is a far cry from his contemporaneous written acknowledgement to plaintiff that "we do recognize the value of your involvement and stimulation of the potential agreement with [Penney], and would consider appropriate compensation; but, as I have previously described, not at the level proposed in your agreement.” In the face of such an admission, defendant’s cursory and conclusory denial of plaintiffs right to a commission will not defeat summary judgment. Concur—Murphy, P. J., Sullivan, Rosenberger, Nardelli and Tom, JJ.