Schleger v. Treiber Group LLC

Mar 27, 2003
Versions:303 A.D.2d 335
757 N.Y.S.2d 271
2003 N.Y. App. Div. LEXIS 3268

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 9, 2002, which, after a nonjury trial, found that defendant insurance company is liable to plaintiff insurance broker for breach of an oral contract to pay plaintiff a share of the renewal commissions generated by accounts produced by plaintiff before his employment with defendant terminated, unanimously affirmed, with costs.

The trial court erred in holding that the alleged oral contract is not subject to the statute of frauds (General Obligations Law § 5-701 [a] [1]; see Apostolos v R.D.T. Brokerage Corp., 159 AD2d 62, 64-65 [1990]). Nevertheless, we affirm, because defendant’s January 31, 1997 letter to plaintiff reasonably implies all the material terms of the alleged oral agreement (see Whitehorn Assoc. v One Ten Brokerage, 264 AD2d 516 [1999]). Defendant’s principal testified that just before plaintiff left defendant’s employ, the parties met and agreed that the accounts produced by plaintiff would remain with defendant, and that defendant would continue to pay plaintiff his share of the commissions generated by those accounts, as before, provided plaintiff did not interfere with the accounts. Defendant’s January 31, 1997 letter, which stated that “[w]e will maintain the current brokerage commission splits provid*336ing [you do not divert future revenues to another agency],” memorialized this agreement and satisfied the statute of frauds. The amounts of the commissions are determinable by reference to the parties’ past practices, and the duration of the agreement is determinable by reference to the continued existence of the accounts, i.e., for as long as defendant derives revenue from them. While plaintiff may have solicited certain accounts upon his departure, the accounts remained with defendant and defendant has continued to derive revenue from them, and thus there was no breach by plaintiff. We have considered defendant’s other arguments and find them unavailing. Concur — Tom, J.P., Mazzarelli, Sullivan, Williams and Gonzalez, JJ.