Linder v. Innovative Commercial Systems LLC
127 A.D.3d 670, 8 N.Y.S.3d 191, 2015 N.Y. Slip Op. 03617
Appellate Division, First Department · April 30, 2015
What the court decided
Given a seven-year course of dealing in which the salesman received regular commission statements and the company always paid only when customers paid, the commission was earned on customer payment. Absent an agreement expressly providing for post-termination commissions, he was not owed commissions on payments customers made after he left.
Who won
The employer won; dismissal of the complaint was affirmed.
Why it matters for salespeople
The facts did the work here: regular statements and a consistent practice. Where a company withheld the plan, never sent statements, or applied its rule inconsistently, the analysis looks different.
Key passage: 127 A.D.3d 670 at 670-671.
Read the decision (PDF) Marked with official reporter pages for citation.
Source of the text: New York State Law Reporting Bureau (official slip opinion) — https://www.nycourts.gov/reporter/3dseries/2015/2015_03617.htm. This page summarizes the decision in plain language; the court's own words are in the opinion below.
The opinion
Red markers such as [127 AD3d 000] show where each page of the official reporter begins. Gray markers such as [*2] are the slip opinion's own page markers.
Linder v Innovative Commercial Sys. LLC 2015 NY Slip Op 03617 [127 AD3d 670] April 30, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 3, 2015
[127 AD3d 670] [*1] Gary Linder, Appellant, v Innovative Commercial Systems LLC et al., Respondents.
Siegel & Reiner, New York (Carl D. Bernstein and Craig Gold of counsel), for appellant.
Hodgson Russ LLP, New York (Mark A. Harmon of counsel), for respondents.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered October 18, 2013, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Given the seven-year course of dealing between the parties, in which plaintiff received regular statements about his commissions, and the always adhered-to practice of paying the commissions only if and when customers paid on the contracts plaintiff procured, plaintiff earned his commissions upon payment by the customer (see Pachter v Bernard Hodes Group, Inc., 10 NY3d 609, 617-618 [2008]). Thus, absent an agreement expressly providing for posttermination commissions, plaintiff, [127 AD3d 671]an at-will commissions salesman, was not entitled to commissions for payments made by customers after his termination (see id.; Yudell v Israel & Assoc., 248 AD2d 189, 189-190 [1st Dept 1998]). Furthermore, since plaintiff was fully compensated under his agreement with defendants, he had no claim for a violation of the Labor Law (see Tierney v Capricorn Invs., 189 AD2d 629, 632 [1st Dept 1993], lv denied 81 NY2d 710 [1993]). Nor did he have a claim for unjust enrichment, where defendants merely retained the amounts that they were not obligated to pay for posttermination commissions. Concur—Acosta, J.P., Saxe, DeGrasse and Richter, JJ.