SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

994 

CA 16-00178 

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

MICHELE MOORE-HAARR, INDIVIDUALLY, AND DOING 

BUSINESS AS PROPEL TECHNOLOGY, 

PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

Z-AXIS, INC., DEFENDANT-APPELLANT,

AND MICHAEL ALLEN, DEFENDANT. 

 

BARCLAY DAMON LLP, ROCHESTER (SCOTT P. ROGOFF OF COUNSEL), FOR

DEFENDANT-APPELLANT.

GALLO & IACOVANGELO, LLP, ROCHESTER (JOSEPH B. RIZZO OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Ontario County

(Matthew A. Rosenbaum, J.), entered August 17, 2015. The order,

insofar as appealed from, denied that part of the motion of defendants

seeking summary judgment dismissing the complaint against defendant 

Z-AXIS, Inc. and granted that part of the cross motion of plaintiff

seeking to compel responses to her notice to admit. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the cross motion is

denied in its entirety, the motion is granted in its entirety, and the

complaint against defendant Z-AXIS, Inc. is dismissed. 

Memorandum: In this action for breach of contract, plaintiff

seeks to recover sales commissions totaling over $89,000 from Z-AXIS,

Inc. (defendant). The sales for which plaintiff seeks the commissions

were made by defendant, and the goods were shipped to and paid for by

defendant’s customers, after defendant terminated its relationship

with plaintiff. According to plaintiff, however, she earned the

commissions before her termination, because they were brought about by

sales quotes or solicitations prepared before such termination. 

Supreme Court granted defendants’ motion for summary judgment only in

part, dismissing the complaint against defendant Michael Allen, and we

agree with defendants that the court should have granted their motion

in its entirety. An at-will sales representative, agent, or employee

is not entitled to posttermination commissions absent an agreement

expressly providing for such commissions (see Devany v Brockway Dev.,

LLC, 72 AD3d 1008, 1009; Gordon v Wilson, 68 AD3d 1058, 1060; UWC,

Inc. v Eagle Indus., 213 AD2d 1009, 1011, lv denied 85 NY2d 812). On

their motion, defendants established as a matter of law that there was
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CA 16-00178 

no such express agreement between the parties and indeed that the

subject of posttermination commissions was never discussed during the

parties’ relationship, and plaintiff failed to raise a triable

question of fact in opposition to the motion (see Devany, 72 AD3d at

1009; UWC, Inc., 213 AD2d at 1011). Moreover, the record establishes

that, during the course of dealing between the parties, at no time was

plaintiff paid a sales commission prior to defendant’s shipment of the

goods to its customer and receipt of that customer’s payment for such

goods (see Linder v Innovative Commercial Sys. LLC, 127 AD3d 670,

670). Thus, there is no support in the record for plaintiff’s claim

that she earned the commissions in question before her termination. 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court