Centerbank Mortgage Co. v. Shapiro

Appellate Division of the Supreme Court of New York

Centerbank Mortgage Co. v. Shapiro

237 A.D.2d 477, 655 N.Y.S.2d 596, 1997 N.Y. App. Div. LEXIS 2864

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 24, 1997

StatusPublished

Cited by3 cases

This text of 237 A.D.2d 477 (Centerbank Mortgage Co. v. Shapiro) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Centerbank Mortgage Co. v. Shapiro, 237 A.D.2d 477, 655 N.Y.S.2d 596, 1997 N.Y. App. Div. LEXIS 2864 (N.Y. Ct. App. 1997).

Pincite

Opinion

In an action to recover excess monies paid to an employee from a drawing account, the defendant appeals from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered April 29, 1996, which, upon an order of the same court dated March 4, 1996, granting the plaintiff’s motion for summary judgment, was in favor of the plaintiff and against him in the sum of $3,893.67. The defendant’s notice of appeal from the order dated March 4, 1996, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

It is well settled that an action to recover excess monies paid to an employee from a drawing account "is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned” (Boutique Indus. v Sobel, 223 AD2d 398, 399; see, Posner v Precision Shapes, 271 App Div 435), but without such an agreement, express or implied, the employer cannot recover such excess from the employee (Pease Piano Co. v Taylor, 197 App Div 468, affd 232 NY 504; Nationwide Mut. Ins. Co. v Timon, 9 AD2d 1018; see, Carter v Bradlee, 245 App Div 49, 52, affd 269 NY 664; Posner v Precision Shapes, supra, at 439). The court correctly determined that the defendant agreed to repay draws [478]*478against unearned commissions with respect to draws taken beyond the 90th day of employment. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover excess monies paid to an employee from a drawing account, the defendant appeals from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered April 29, 1996, which, upon an order of the same court dated March 4, 1996, granting the plaintiff’s motion for summary judgment, was in favor of the plaintiff and against him in the sum of $3,893.67. The defendant’s notice of appeal from the order dated March 4, 1996, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

It is well settled that an action to recover excess monies paid to an employee from a drawing account "is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned” (Boutique Indus. v Sobel, 223 AD2d 398, 399; see, Posner v Precision Shapes, 271 App Div 435), but without such an agreement, express or implied, the employer cannot recover such excess from the employee (Pease Piano Co. v Taylor, 197 App Div 468, affd 232 NY 504; Nationwide Mut. Ins. Co. v Timon, 9 AD2d 1018; see, Carter v Bradlee, 245 App Div 49, 52, affd 269 NY 664; Posner v Precision Shapes, supra, at 439). The court correctly determined that the defendant agreed to repay draws [478]*478against unearned commissions with respect to draws taken beyond the 90th day of employment. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

237 A.D.2d 477, 655 N.Y.S.2d 596, 1997 N.Y. App. Div. LEXIS 2864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centerbank-mortgage-co-v-shapiro-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack