Summary
holding that "doctrine of part performance does not avail plaintiff" where the plaintiff's acceptance of commissions for amounts less than she was alleging were owed was "as referable to the series of individually negotiated ad hoc agreements asserted by defendants as with the fixed agreement asserted by plaintiff"
Summary of this case from JMT Sales, Inc. v. Int'l Beauty Brands, LLCOpinion
November 23, 1999
Order of the Appellate Term of the Supreme Court, First Department, entered November 28, 1997, which modified an order of the Civil Court, New York County (Saralee Evans, J.), entered December 19, 1996, to grant defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Neil Grimaldi, for Plaintiff-Appellant.
John Harris, for Defendants-Respondents.
ELLERIN, P.J., ROSENBERGER, TOM, ANDRIAS, BUCKLEY, JJ.
The action, in which plaintiff alleges that defendants, her former employers in a jewelry business, breached an oral agreement to pay her a 20% commission on sales to customers that she referred to them, should be dismissed since the alleged agreement is subject to the Statute of Frauds (General Obligations Law § 5-701 [a][10]). The doctrine of part performance does not avail plaintiff. Plaintiff's conduct, which included acceptance of commissions on completed transactions substantially less than 20%, is as referable to the series of individually negotiated ad hoc agreements asserted by defendants as with the fixed agreement asserted by plaintiff (see, Anostario v. Vicinanzo, 59 N.Y.2d 662). We have considered and rejected plaintiff's other contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.