Opinion
October 28, 1971
Appeal from the Monroe Special Term.
Present — Del Vecchio, J.P., Marsh, Witmer, Gabrielli, and Cardamone, JJ.
Order unanimously modified in accordance with the memorandum and as so modified affirmed, with costs to defendant. Memorandum: The court's direction that a Referee be appointed to determine the amount of damages, if any, sustained by plaintiff by reason of the defendant's failure to pay commissions was, in effect, a determination of the factual issue raised by the moving papers as to whether there was an agreement to pay commissions. Under CPLR 3212 (subd. [c]) the existence of a triable issue of fact as to the amount of damages does not bar the granting of summary judgment, but permits the court to order an assessment of damages after a hearing before a Referee, the court or the court and a jury. The factual issue raised herein as to the existence of contractual liability for commissions precludes such an order for assessment of damages (see Gridley Sons v. Northeastern Consolidated Co., 36 A.D.2d 1001: Yagoda v. Gelles, 36 A.D.2d 733). The order should be modified by severing the plaintiff's cause of action for commissions and the defendant's counterclaim and by directing only that judgment be entered, with costs, in favor of the plaintiff and against the defendant in the amount directed in the order appealed from.