| Corcoran v GATX Corp. |
| 2008 NY Slip Op 02241 [49 AD3d 1174] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Thomas P. Corcoran, Appellant, v GATX Corporation etal., Respondents. |
—[*1] Mayer Brown LLP, Chicago, Ill. (Robert J. Kriss, of the Illinois and Wisconsin bars,admitted pro hac vice, of counsel) and Bond, Schoeneck & King, PLLC, Syracuse, fordefendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.),entered February 26, 2007. The order, insofar as appealed from, denied plaintiff's motion forpartial summary judgment on liability on the first four causes of action and granted defendants'cross motion for summary judgment dismissing those causes of action.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the cross motion in part and reinstating the fourth cause of action and as modified theorder is affirmed without costs.
Memorandum: Following the sale of substantially all of its assets, defendant GATXTechnology Services Corporation (GATX) terminated plaintiff's employment as a salesrepresentative, and plaintiff commenced this action seeking, inter alia, unpaid commissions.Plaintiff moved for partial summary judgment on liability on the first four causes of action, anddefendants cross-moved for summary judgment dismissing those causes of action. SupremeCourt properly denied plaintiff's motion in its entirety and granted that part of defendants' crossmotion with respect to the first cause of action, seeking unpaid commissions based ondefendants' breach of contract. Plaintiff was entitled to commissions as a sales representativepursuant to the terms of various Commission Plans (Plans) promulgated by GATX, and thoseterms did not include the sale of GATX's assets to another corporation. The terms of those Plansare not ambiguous (see generally Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]),and there is nothing in the language contained therein to support the contention of plaintiff thathe was entitled to commissions based on additional activities.
The court also properly granted that part of defendants' cross motion with respect to thesecond and third causes of action. The second cause of action, for unjust enrichment, "isgrounded in quasi contract and, [w]here a valid and enforceable contract exists governing aparticular subject matter, it precludes recovery in quasi contract for events arising out of the samesubject matter" (LaBarte v Seneca Resources Corp., 285 AD2d 974, 976 [2001] [internalquotation marks omitted]; see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382,388-389 [1987]). Here, [*2]plaintiff was entitled to commissionspursuant to the various Plans, and thus the second cause of action is duplicative of the first causeof action, for breach of contract (see Eagle Comtronics v Pico Prods., 256 AD2d 1202,1202-1203 [1998]), despite the fact that we have determined that plaintiff is not entitled torecover under that cause of action. We note with respect to the third cause of action that plaintiffconcedes that it is contingent on the merits of the first cause of action. Because we havedetermined herein that the court properly granted that part of defendants' cross motion withrespect to the first cause of action, it thus follows from plaintiff's concession that the court alsoproperly granted that part of defendants' cross motion with respect to the third cause of action.
We conclude, however, that the court erred in granting that part of defendants' cross motionwith respect to the fourth cause of action, alleging a violation of Labor Law § 193, and wetherefore modify the order accordingly. Plaintiff alleged that GATX made improper deductionsfrom his past commissions, and thus the fourth cause of action is not dependent upon orduplicative of his first cause of action, which sought unpaid commissions. We reject defendants'contention that plaintiff is an executive who is not entitled to the protections of article 6 of theLabor Law. Labor Law § 193 (1) prohibits an employer from making any deductions fromthe wages of "an employee," with certain exceptions that are not relevant here. Labor Law§ 190 (2) defines the term employee as "any person employed for hire by an employer inany employment," and plaintiff falls within that definition. Defendants' reliance on Labor Law§ 190 (6) is misplaced. That subdivision excludes from the term commission salesman "anemployee whose principal activity is of a supervisory, managerial, executive or administrativenature." Labor Law § 193 "applies equally to all employees as defined in section 190 (2),and whether or not plaintiff comes under the definition of 'commission salesman' in section 190(6) is simply irrelevant" (Daley v Related Cos., 179 AD2d 55, 58 [1992]; see Tuttle vMcQuesten Co., 227 AD2d 754, 755-756 [1996]). Finally, the record does not supportdefendants' further contention that there were no improper deductions from plaintiff'scommissions. Present—Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.