Edelman v. Robert A. Becker, Inc.

194 A.D.2d 507, 599 N.Y.S.2d 578, 1993 N.Y. App. Div. LEXIS 6804

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered November 20, 1992, which denied defendant’s motion for summary judgment dismissing the complaint of plaintiff, unanimously affirmed, with costs. Appeal from order, same court and Justice entered on November 20, 1992, which granted plaintiffs motion to strike defendant’s answer unless defendant produces its president for deposition within 30 days of service of the order with notice of entry, dismissed as academic, without costs. Order, same court (Herman Cahn, J.), entered February 4, 1993, which, insofar as appealed from, directed and scheduled depositions of defendant’s president and a non-party, out-of-State corporation, unanimously modified, on the facts and in the exercise of discretion, to direct that defendant’s president be deposed no later than 30 days after entry of this Court’s order, with costs, and otherwise affirmed.

Under the governing memorandum, employees were to be rewarded for performance that resulted in new business but not to "receive” their commissions therefor until after defendant had invoiced the client for payment. We agree with the IAS Court that such terms are susceptible to an interpretation that plaintiff "earned” commissions before resigning from defendant’s employ even though the client had not yet been invoiced. Given this ambiguity attributable, as the IAS Court put it, to the "vast difference between earning and receiving,” evidence of trade custom or prior usage is relevant, and the evidence thereof adduced by plaintiff was sufficient to raise a question of fact when the commissions were earned. The IAS Court did not abuse its discretion in striking defendant’s answer unless its president was produced for deposition. As the previously established deadlines for such deposition have now passed, we modify to set a new 30-day deadline therefor. We have considered defendant’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Carro, Wallach and Nardelli, JJ.