Specialized Search Associates, Inc. v. Cadillac-Fairview Shopping Centers (U.S.) Ltd.

98 A.D.2d 637, 469 N.Y.S.2d 708, 1983 N.Y. App. Div. LEXIS 20927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1983
• Status: Published

Opinions

Order of the Supreme Court, New York County (David H. Edwards, J.), entered on May 17, 1983, .denying plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR 3213 and directing plaintiff to serve and file a formal complaint within 20 days of service of an order with notice of entry is affirmed, without costs. The facts in this case are fairly set forth in the dissent. Indeed there is no substantial dispute between the parties as to the facts, so far as they are revealed by this record. The difficulty is, however, that it does not appear from this record that there was agreement between the parties as to the terms and conditions under which the defendants would become obligated to pay a commission to the plaintiffs. The plaintiffs assert that they considered their commissions earned and due and payable when the person they refer is employed and remains on the payroll for 30 days. Defendant on the other hand, contends in an affidavit by its former president, that it was his understanding that the commission would be earned in accordance with customary executive recruiting customs and practices. He asserts that according to those customs and practices, in regard to high-level personnel, the fees of the executive employment agencies are not considered earned unless the high-level executive remains in the employ of the client for a reasonable period. Here, the employee was hired as controller at an annual salary of $65,000. His employment apparently commenced on September 7,1982, and the plaintiff billed for its percentage fee at the same time. It appears that within several days of mailing the check for $13,000, representing a 20% fee based on the employee’s salary, the employee informed defendant’s president that he intended to leave defendant to establish his own business. This notice was given less than two months from the date of the employee’s hiring and at a time when he had earned somewhat less than $11,500 in salary. Thus the fee of $13,000 tendered to the plaintiff upon which it seeks summary judgment in fact exceeds the total salary earned by the employee. Under these circumstances it may well be that there was a failure of consideration sufficient to warrant denial of recovery to the plaintiff. Certainly the conflicting affidavits and the assertion of the custom and practice as to when the commission is earned raise sufficient questions of fact to warrant a trial of the action. Special Term appropriately denied the motion for summary judgment. Concur — Ross, Carro, Asch and Alexander, JJ.