SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

635.1 

CA 12-02035 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

POLYFUSION ELECTRONICS, INC., 

PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

PROMARK ELECTRONICS, INC. AND ROBERT 

GATHERCOLE, DEFENDANTS-APPELLANTS-RESPONDENTS. 

WOODS OVIATT GILMAN, LLP, ROCHESTER (ANDREW J. RYAN OF COUNSEL), FOR

DEFENDANTS-APPELLANTS-RESPONDENTS. 

LAWRENCE C. BROWN, CHEEKTOWAGA, FOR PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from a judgment of the Supreme Court,

Erie County (John A. Michalek, J.), entered December 22, 2011. The

judgment dismissed the complaint and awarded defendant Promark

Electronics, Inc., money damages on the fourth counterclaim. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the award of damages under

the fourth counterclaim and awarding instead the same amount of

damages to defendant Promark Electronics, Inc. under the second

counterclaim, awarding damages to defendant Promark Electronics, Inc.

on the first counterclaim in the amount of $47,589.15 along with

reasonable attorney’s fees, and granting defendant Promark

Electronics, Inc. interest on the judgment at the rate of 9% rather

than 3% per annum, and as modified the judgment is affirmed without

costs and the matter is remitted to Supreme Court, Erie County, to

determine the amount of reasonable attorney’s fees to be awarded

pursuant to Labor Law § 191-c (3) and to recalculate the amount of

interest to be awarded pursuant to CPLR 5004 in accordance with the

following Memorandum: Defendants appeal and plaintiff cross-appeals

from a judgment entered following a nonjury trial that dismissed the

complaint and awarded defendant Promark Electronics, Inc. (Promark)

judgment on the fourth counterclaim, for quantum meruit, plus

interest. Plaintiff, a contract electronics manufacturer, hired

defendants to generate new business orders and, in 2002, plaintiff

signed an agreement providing that plaintiff would pay defendants a

five-percent commission on new customers resulting from defendants’

efforts. The agreement also contained a 30-day termination clause

available to both plaintiff and defendants. It is undisputed that

plaintiff restructured the commission schedule in 2005 and that

defendants accepted the restructured schedule. Due to financial

difficulties, plaintiff was deficient in paying various commissions
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CA 12-02035 

owed to defendants and, in 2008, plaintiff terminated its relationship

with defendants. Plaintiff commenced this action seeking commissions

it alleges were wrongly paid to defendants, and defendants asserted

counterclaims for the unpaid commissions.

We agree with defendants on their appeal that Supreme Court

should have awarded Promark judgment on the second counterclaim,

breach of contract, rather than on the fourth counterclaim, for

quantum meruit. We therefore modify the judgment accordingly. The

agreement between the parties was an enforceable unilateral contract

(see Petterson v Pattberg, 248 NY 86, 88), and the existence of an

enforceable written contract between the parties precludes recovery in

quantum meruit (see Cox v NAP Constr. Co., Inc., 10 NY3d 592, 607). 

Plaintiff’s contention on its cross appeal that there were additional

unwritten requirements that defendants failed to fulfill and thus that

defendants were not entitled to judgment in their favor is without

merit; parole evidence is not admissible here because there is no

ambiguity in the contract between plaintiff and defendants (see Schron

v Troutman Sanders LLP, 20 NY3d 430, 436; W.W.W. Assoc. v

Giancontieri, 77 NY2d 157, 162). 

 We further agree with defendants that Promark is entitled to

judgment on the first counterclaim, alleging the violation of Labor

Law § 191-c. Labor Law § 191-c (1) provides that, “[w]hen a contract

between a principal and a sales representative is terminated, all

earned commissions shall be paid within five business days after

termination or within five business days after they become due in the

case of earned commissions not due when the contract is terminated.” 

Labor Law § 191-c (3) provides that “[a] principal who fails to comply

with the provisions of this section concerning timely payment of all

earned commissions shall be liable to the sales representative in a

civil action for double damages. The prevailing party in any such

action shall be entitled to an award of reasonable attorney’s fees,

court costs, and disbursements.” It is undisputed that plaintiff

failed to pay defendants commissions within five business days after

they became due, and the record establishes that plaintiff was a

“principal” and defendants were “sales representative[s]” for purposes

of the statute. We therefore further modify the judgment by awarding

Promark damages in the amount of $47,589.15 on the first counterclaim,

representing double damages of the amount awarded on the breach of

contract claim, and we remit the matter to Supreme Court for a

calculation of reasonable attorney’s fees (see Zeman v Falconer

Elecs., Inc., 55 AD3d 1240, 1241-1242). We note that the judgment

includes an award of costs to defendants.

Finally, we conclude that the court lacked discretion to vary the

statutorily-prescribed interest rate of 9% per annum (see CPLR 5004). 

As this Court has previously recognized, interest at the rate of 9%

per annum is mandatory for “sum[s] awarded because of a breach of

performance of a contract” (CPLR 5001 [a]; see Urban v B.R. Guest,

Inc., 45 AD3d 1418, 1418). We therefore further modify the judgment

accordingly.
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CA 12-02035 

Entered: July 19, 2013 Frances E. Cafarell

Clerk of the Court