Starlite Media LLC v. Pope

128 A.D.3d 498, 8 N.Y.S.3d 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2015
• Docket: 15109 114163/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen Bransten, J.), entered April 15, 2014, which, to the extent appealed from, denied plaintiffs cross motion for summary judgment dismissing defendant’s counterclaim for unpaid commissions, unanimously affirmed, without costs.

It is true that plaintiff established that draws carried over from year to year and that defendant failed to raise a triable question of fact as to this issue. However, even if defendant’s draw carried over, plaintiff could still owe her money, as admitted in the affidavit of one of its witnesses, if she was entitled to commissions on business that came in on her accounts after plaintiff terminated her. Plaintiff submitted evidence of industry custom, but defendant denied this at her deposition, creating an issue of fact (see generally Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013] [on summary judgment motion, “(t)he evidence will be construed in the light most favorable to the one moved against”]).

Plaintiffs argument that its cross motion should have been granted due to deficiencies in defendant’s opposition, is unavailing (see CPLR 2001). Concur — Friedman, J.P., Saxe, Richter and Manzanet-Daniels, JJ.