Opinion
No. 2020-01268 Index No. 617362/18
12-20-2023
Paul D'Ascoli, appellant, v. Interstate Home Loan Center, Inc., et al., respondents.
Neil H. Greenberg & Associates, P.C., Massapequa, NY (Justin M. Reilly of counsel), for appellant. Joseph C. Vozza, P.C., Melville, NY, for respondents.
Neil H. Greenberg & Associates, P.C., Massapequa, NY (Justin M. Reilly of counsel), for appellant.
Joseph C. Vozza, P.C., Melville, NY, for respondents.
COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, LILLIAN WAN, CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and violations of Labor Law §§ 191, 193, and 198, the plaintiff appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered January 2, 2020. The order granted that branch of the defendants' converted motion which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, a former loan officer and branch manager of the defendant Interstate Home Loan Center, Inc. (hereinafter Interstate), commenced this action, inter alia, against Interstate, and the defendants Alex Niven, the president and chief executive officer of Interstate, and Terrence Cullen, the vice president of Interstate (hereinafter collectively the defendants), to recover damages for breach of contract and violations of Labor Law §§ 191, 193, and 198 arising out of the plaintiff's former employment with Interstate. According to the plaintiff, during his employment with Interstate, the defendants had agreed to pay him a base salary, as well as commissions based upon a percentage of each loan that he originated upon the loan closing and funding. The plaintiff alleged that the defendants had failed to pay him the full amount of commissions to which he was entitled with respect to five loans that he originated and that were closed and funded during his employment with Interstate.
The defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In support, the defendants submitted, among other things, an agreement executed by the plaintiff and Interstate entitled "the Producing Branch Manager Compensation Agreement and Employment Agreement" (hereinafter the compensation agreement), which set forth the terms of the plaintiff's employment with Interstate, as well as a document entitled "the Loan Officer Compensation Policy and Compliance with Regulation Z" (hereinafter the compensation policy), which was executed by the plaintiff and Interstate. The plaintiff opposed.
As is relevant to the appeal, in an order dated October 3, 2019, the Supreme Court advised the parties that, pursuant to CPLR 3211(c), it intended to treat that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint as a motion for summary judgment dismissing the complaint, and provided the parties with the opportunity to make supplemental submissions. After receiving the parties' supplemental submissions, in an order entered January 2, 2020, the court granted that branch of the defendants' converted motion which was for summary judgment dismissing the complaint. The plaintiff appeals. We affirm, albeit on different grounds.
Contrary to the plaintiff's contention, the Supreme Court properly converted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint into a motion for summary judgment dismissing the complaint after providing the parties with the requisite notice of its intent to do so and affording the parties the opportunity to make supplemental submissions (see id. § 3211[c]; Gottlieb v Colonel, 180 A.D.3d 877, 879).
However, contrary to the determination of the Supreme Court, the compensation agreement is incomplete on its face because it does not set forth the amount of commission payable to the plaintiff, or any method that could be used to calculate the amount of commission payable to him. The defendants also failed to demonstrate, prima facie, that the compensation policy was part of the compensation agreement such that they constituted one written agreement.
Nonetheless, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting extrinsic evidence demonstrating that the only fair interpretation of the compensation agreement was the interpretation espoused by the defendants (see Murphy v Town of Oyster Bay, 171 A.D.3d 1079, 1081; Demetrio v Stewart Tit. Ins. Co., 124 A.D.3d 824, 826). Here, pursuant to the compensation policy, the plaintiff agreed that he was entitled to receive commissions at a rate of 1.5% of any loan that he originated and that was closed and funded. The compensation provided by the defendants to the plaintiff did not vary, alter, or contradict any terms in the compensation agreement. Moreover, as the Supreme Court noted, the plaintiff does not dispute that he originated five loans that closed and funded during his employment at Interstate, and that the defendants accurately identified those five loans. The evidence submitted by the defendants demonstrated, prima facie, that the plaintiff was paid a commission of 1.5% of each of the specified five loans. In opposition to this showing, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted that branch of the defendants' converted motion which was for summary judgment dismissing the complaint.
DUFFY, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.