| Kronick v L.P. Thebault Co., Inc. |
| 2010 NY Slip Op 00816 [70 AD3d 648] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Ann Kronick, Appellant, v L.P. Thebault Company, Inc.,Also Known as L.P. Thebault Company, Respondent. |
—[*1] Jackson Lewis LLP, Melville, N.Y. (Mark S. Mancher and David R. Enrlich of counsel), forrespondent.
In an action, inter alia, to recover unpaid wages, the plaintiff appeals from an order of theSupreme Court, Nassau County (Martin, J.), entered December 1, 2008, which granted thedefendant's motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of theplaintiff's motion which was to dismiss the cause of action to recover unpaid wages. Acceptingas true the factual allegations set forth in the complaint in support of that cause of action, andaccording to the plaintiff the benefit of every possible favorable inference to be drawn therefrom(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Andre Strishak & Assoc. vHewlett Packard Co., 300 AD2d 608, 609 [2002]), the complaint failed to state a cause ofaction to recover unpaid wages. Indeed, since the plaintiff alleged that she was an at-willemployee of the defendant, it is clear that the defendant had the right to unilaterally alter theplaintiff's draw against commissions prospectively, subject to the plaintiff's right to leave theemployment if she found the new terms unacceptable (see Hanlon v Macfadden Publs.,302 NY 502, 505-506 [1951]; JCSControls, Inc. v Stacey, 57 AD3d 1372, 1373 [2008]; Plank v Watson Bowman Acme Corp.,46 AD3d 1338, 1339 [2007]; Berger v Roosevelt Inv. Group Inc., 28 AD3d 345, 346 [2006];General Elec. Tech. Servs. Co. v Clinton, 173 AD2d 86, 88 [1991]). By remaining in thedefendant's employ under the new compensation terms, the plaintiff is deemed to have acceptedthem (see Shah v Wilco Sys., Inc.,27 AD3d 169, 174 [2005]; Gebhardt v Time WarnerEntertainment-Advance/Newhouse, 284 AD2d 978, 979 [2001]; Bottini v Lewis & JudgeCo., 211 AD2d 1006 [1995]; Waldman v Englishtown Sportswear, 92 AD2d 833[1983]), regardless of her failure to sign the notice advising her of the new terms (see Dwyerv Burlington Broadcasters, 295 AD2d 745, 746 [2002]).
The plaintiff's current contention concerning her unused vacation time is not properly beforethis Court, since she abandoned that claim by failing to oppose the branch of the defendant'smotion which was to dismiss it (seegenerally Ellis v Emerson, 34 AD3d 1334, 1335 [2006]; Genovese v Gambino,309 [*2]AD2d 832, 833 [2003]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Santucci, Dickerson andRoman, JJ., concur.