| Devany v Brockway Dev., LLC |
| 2010 NY Slip Op 03400 [72 AD3d 1008] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Kathleen D. Devany et al., Appellants, v BrockwayDevelopment, LLC, et al., Respondents. |
—[*1] Handel & Carlini, LLP, Poughkeepsie, N.Y. (Anthony C. Carlini, Jr., of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of an employment contract, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Dutchess County (Brands, J.), dated November 17, 2008, as granted the defendants' cross motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In the spring of 2000, the plaintiff Kathleen D. Devany (hereinafter the plaintiff), respondingto a newspaper advertisement for a "[l]ong term position for right person," was hired by thedefendants as sales manager for residential real estate developments under construction. Amemorandum dated April 4, 2000, from the defendants to the plaintiff stated that hercompensation included a $750 per unit sales bonus, with an option given to the plaintiff to "electto receive 50% of the prescribed sales bonus upon mortgage commitment if you so desire." In awritten communication dated April 27, 2000, the plaintiff agreed to those terms, and noted that"[a]s we discussed" her compensation package included "both the single family and townhomesprojects at Streamside Knolls." On May 23, 2000, the plaintiff signed an "employeeacknowledgment form," stating that she was an employee at-will, and either she or her employercould terminate her employment at any time.
On June 18, 2004, the plaintiff's employment was terminated. In October 2005, shecommenced the instant action to recover damages, inter alia, based upon the termination of heremployment, and for alleged unpaid commissions.
After discovery, the plaintiffs moved, among other things, for further discovery, and thedefendants cross-moved for summary judgment dismissing the complaint. In the order appealedfrom, the Supreme Court granted the cross motion in its entirety, and denied the plaintiffs'motion as academic.[*2]
Where an employment agreement is silent as to duration,absent a limitation on the employer's right to discharge the employee, there is a rebuttablepresumption of an at-will employment relationship (see Rooney v Tyson, 91 NY2d 685,690 [1998]). Such "temporally amorphous terms" as "permanent" or "long term" are not definiteas to duration (id. at 691, 688 [internal quotation marks omitted]; Peters v MCITelecom. Corp., 685 F Supp 411, 414 [1988]). Further, if the alleged duration of the contractis by its terms in excess of one year, the statute of frauds applies (see GeneralObligations Law § 5-701 [a]), and the documents submitted by an employee in support ofhis or her claim must include the duration of the contract (see Durso v Baisch, 37 AD3d 646, 647 [2007]; cf. Nausch v AON Corp., 2 AD3d101, 103 [2003]).
Here, the plaintiff claims that she was hired for a definite term of 8 to 10 years. However,there is nothing in the documents submitted to establish a definite term of employment, nor isthere any provision limiting the right of her employer to discharge her. Further, the plaintiffexplicitly acknowledged that she was an at-will employee. As an at-will employee, she cannotrecover damages based upon the termination of her employment (see Smalley v Dreyfus Corp., 10 NY3d55, 59 [2008]; Murphy v American Home Prods. Corp., 58 NY2d 293, 304-305[1983]; McGimpsey v J. RobertFolchetti & Assoc., LLC, 19 AD3d 658, 659 [2005]).
With respect to her claim for commissions, an at-will sales representative is entitled topost-discharge commissions only if the parties to the agreement expressly provided for suchcommissions (see McGimpsey v J. Robert Folchetti & Assoc., LLC, 19 AD3d at 659;Swits v New York Sys. Exch., 281 AD2d 833, 835 [2001]; Production Prods. Co. vVision Corp., 270 AD2d 922, 923 [2000]; UWC, Inc. v Eagle Indus., 213 AD2d1009, 1011 [1995]). There is an exception to this doctrine for real estate brokers who claim to bethe "procuring cause" of a real estate transaction (see UWC, Inc. v Eagle Indus., 213AD2d at 1011). However, the plaintiff was not a real estate broker, nor was she associated with areal estate broker. Therefore, she could not claim commissions based upon a claim that she wasthe "procuring cause" of a sale (see Real Property Law § 442-a).
"Once the commission is earned, it cannot be forfeited" (Arbeeny v Kennedy Exec. Search, Inc., 71 AD3d 177, 182 [2010];see McGimpsey v J. Robert Folchetti Assoc., LLC, 19 AD3d at 660). Thus, the plaintiffwas entitled to be paid any commissions earned prior to the termination of her employment. Thedefendants established, as a matter of law, that the plaintiff was paid all commissions earned, andthe plaintiffs failed to raise a triable issue of fact on this issue.
The plaintiffs' remaining contentions are without merit. Covello, J.P., Florio, Eng andChambers, JJ., concur.