All Seasons Fuels, Inc. v. Morgan Fuel & Heating Co.

• Decision Date: 06 December 2017
• Docket Number: 2016–03119,Index No. 8962/13,2015–06162
• Parties: ALL SEASONS FUELS, INC., et al., appellants-respondents, v. MORGAN FUEL & HEATING CO., INC., etc., respondent-appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 591
66 N.Y.S.3d 512

ALL SEASONS FUELS, INC., et al., appellants-respondents,
v.
MORGAN FUEL & HEATING CO., INC., etc., respondent-appellant.

2015–06162
2016–03119
Index No. 8962/13

Supreme Court, Appellate Division, Second Department, New York.

Argued–October 13, 2017
December 6, 2017

66 N.Y.S.3d 513

Blustein Shapiro Rich & Barone, LLP, Goshen, NY (Gardiner S. Barone of counsel), for appellants-respondents.

Wichler & Gobetz, P.C., Suffern, NY (Kenneth C. Gobetz of counsel), for respondent-appellant.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

156 A.D.3d 591

Appeals from (1) an order of the Supreme Court, Orange County (Catherine M. Bartlett, J.), dated April 27, 2015, and (2) an interlocutory judgment of that court entered May 29, 2015. Cross appeal from the order dated April 27, 2015. The order, insofar as appealed from, denied that branch of the motion of the plaintiff All Seasons Fuels, Inc., which was for summary judgment on the issue of damages on the second cause of action, and granted that branch of the defendant's cross motion

156 A.D.3d 592

which was for summary judgment on its first counterclaim to the extent of directing the plaintiff Charlene Flood to comply with her obligations under paragraph 5(d) of the subject employment agreement. The order, insofar as cross-appealed from, granted that branch of the motion of the plaintiff All Seasons Fuels, Inc., which was for summary judgment on the issue of liability on the second cause of action, and denied those branches of the defendant's cross motion which were, in effect, to strike certain portions of the affidavit of James Suto, for summary judgment dismissing the second cause of action and so much of the third cause of action as sought damages, and for summary judgment on its second and third counterclaims against the plaintiffs. The interlocutory judgment, upon the order, directed the plaintiff Charlene Flood to return to the defendant any confidential information that she had received in tangible form during her employment with the defendant.

ORDERED that the appeal from so much of the order as granted that branch

66 N.Y.S.3d 514

of the defendant's cross motion which was for summary judgment on its first counterclaim against the plaintiff Charlene Flood is dismissed, without costs or disbursements, as that portion of the order was superseded by the interlocutory judgment; and it is further,

ORDERED that the order is affirmed insofar as reviewed on the appeal and insofar as cross-appealed from, without costs or disbursements; and it is further,

ORDERED that the interlocutory judgment is affirmed, without costs or disbursements.

In September 2011, the plaintiff All Seasons Fuels, Inc. (hereinafter All Seasons), executed an asset purchase agreement (hereinafter the APA) to sell its assets to the defendant, a distributor of petroleum products. In exchange, All Seasons was entitled to receive a commission on each gallon of heating oil, kerosene, on-road diesel fuel, and off-road diesel fuel that the defendant sold from September 2011 through September 2014 to entities to be designated on a customer list that All Seasons was required to provide to the defendant at the closing. The customer list was defined under the APA as consisting of "those individuals and entities that purchased products from [All Seasons] within the eighteen months immediately prior to the execution of" the APA. The defendant prepaid between $240,000 and $242,000 to All Seasons toward the amount that would be due to All Seasons for commissions under the APA. All Seasons was not entitled to any further payment from the defendant until the amount accrued exceeded the sum that the defendant had prepaid. At the closing on September 8, 2011,

156 A.D.3d 593

All Seasons gave the defendant its computer, which contained customer names and addresses. From the computer, the defendant generated a list containing All Seasons' customers.

The plaintiff Charlene Flood, who was the owner of All Seasons, entered into a separate written contract with the defendant to work as a salesperson for the defendant from September 2011 through September 2014 (hereinafter the Employment Agreement). Under the terms of the Employment Agreement, Flood was entitled to an annual salary and a "bonus," or commission, for commercial propane sales and for each gallon of residential propane, heating oil, or kerosene sold to any new full price customer during the term of her employment.

Flood's employment with the defendant terminated on or about February 18, 2013. In or about December 2013, the plaintiffs commenced this action against the defendant. The plaintiffs alleged in their second cause of action that the defendant had breached the APA by underreporting the sales that the defendant had made to All...