Centerbank Mortg. Co. v. Shapiro

Decision Date24 March 1997
Citation237 A.D.2d 477,655 N.Y.S.2d 596
PartiesCENTERBANK MORTGAGE COMPANY, Respondent, v. Howard SHAPIRO, Appellant.
CourtNew York Supreme Court — Appellate Division

Howard Shapiro, New City, appellant pro se.

Carole R. Bernstein, Norwalk, CT, for respondent.

Before MANGANO, P.J., and RITTER, SULLIVAN, ALTMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover excess monies paid to an employee from a drawing account, the defendant appeals from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered April 29, 1996, which, upon an order of the same court dated March 4, 1996, granting the plaintiff's motion for summary judgment, was in favor of the plaintiff and against him in the sum of $3,893.67. The defendant's notice of appeal from the order dated March 4, 1996, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] ).

ORDERED that the judgment is affirmed, with costs.

It is well settled that an action to recover excess monies paid to an employee from a drawing account "is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned" (Boutique Indus. v. Sobel, 223 A.D.2d 398, 399, 636 N.Y.S.2d 328 [citations omitted]; see, Posner v. Precision Shapes, 271 App.Div. 435, 65 N.Y.S.2d 733), but without such an agreement, express or implied, the employer cannot recover such excess from the employee (Pease Piano Co. v. Taylor, 197 App.Div. 468, 189 N.Y.S. 425, affd. 232 N.Y. 504, 134 N.E. 548; Nationwide Mut. Ins. Co. v. Timon, 9 A.D.2d 1018, 194 N.Y.S.2d 429; see, Carter v. Bradlee, 245 App.Div. 49, 52, 280 N.Y.S. 368, affd. 269 N.Y. 664, 200 N.E. 48; Posner v. Precision...

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