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Esterces Associates v. Coastal Comm. Corp. [1st Dept 2000

Appellate Division of the Supreme Court of New York, First Department
Apr 26, 2000
(N.Y. App. Div. Apr. 26, 2000)

Opinion

April 26, 2000.

Judgment, Supreme Court, New York County (Julius Birnbaum, Special Referee), entered September 20, 1999, in favor of plaintiff advertising salesperson and against defendant magazine publisher in the amount of $73,487.67, inclusive of interest, costs and disbursements, unanimously affirmed, with costs.

Kevin E. Rockitter, for plaintiff-respondent.

Arnold J. Ross, for defendant-appellant.

WALLACH, J.P., LERNER, RUBIN, BUCKLEY, JJ.


A fair interpretation of the evidence supports the Special Referee's finding that defendant did not have good cause to terminate its one-year commission agreement with plaintiff (see,Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495), and that plaintiff is therefore entitled to unpaid commissions. As to whether there are any unpaid commissions, defendant relies on a "pay-when-paid" provision in the subject agreement, under which defendant was to pay plaintiff a commission for making a sale of advertising only if and when defendant received payment from the advertiser. The Special Referee, reasonably assuming that defendant was more likely than plaintiff to have records pertinent to defendant's receipt or nonreceipt of payments from advertisers for invoiced sales, properly made it defendant's burden to prove that the invoices were not paid rather than plaintiff's burden to prove that they were (see, Calamari and Perillo, Contracts § 11-7, at 444 [3d ed]; II Farnsworth, Contracts § 8.2, at 398-399 [2d ed]). Upon defendant's failure to produce such records, the Special Referee properly drew an adverse inference against it (see, Noce v. Kaufman, 2 N.Y.2d 347, 353).

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Esterces Associates v. Coastal Comm. Corp. [1st Dept 2000

Appellate Division of the Supreme Court of New York, First Department
Apr 26, 2000
(N.Y. App. Div. Apr. 26, 2000)
Case details for

Esterces Associates v. Coastal Comm. Corp. [1st Dept 2000

Case Details

Full title:ESTERCES ASSOCIATES, Plaintiff-Respondent, v. COASTAL COMMUNICATIONS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 26, 2000

Citations

(N.Y. App. Div. Apr. 26, 2000)