Mackie v. La Salle Industries, Inc.

• Decision Date: 22 March 1983
• Parties: Katherine J. MACKIE, Plaintiff-Respondent, v. La SALLE INDUSTRIES, INC., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 313

460 N.Y.S.2d 313

92 A.D.2d 821

Katherine J. MACKIE, Plaintiff-Respondent, v. La SALLE INDUSTRIES, INC., et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

March 22, 1983.

W.G. O'Donnell, New York City, for plaintiff-respondent.

A.M. Gelb, New York City, for defendants-appellants.

Before MURPHY, P.J., and ROSS, CARRO, ASCH and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered March 1, 1982, which denied defendants' motion to dismiss the complaint and for partial summary judgment, unanimously modified, on the law, to grant defendants' motion to the extent of: (1) granting partial summary judgment as to that part of the first cause of action that seeks prospective commissions; (2) dismissing the second, third and fifth causes of action for failure to state a cause of action; (3) dismissing the complaint against all of the individual defendants for failure to state a cause of action, and otherwise affirmed, without costs.

Corporate defendant LaSalle Industries, Incorporated (LaSalle) is a commercial printer. In October 1975, LaSalle orally employed plaintiff Katherine J. Mackie, for no fixed term, as a sales representative. Plaintiff was paid on a commission basis and she received 10% of the net sales on accounts obtained by her, or assigned to her.

In April 1976, plaintiff acquired for LaSalle the very lucrative Home Box Office (HBO) account. Between 1976 and 1979, LaSalle received from HBO, gross sales of almost three million dollars.

On August 30, 1978, individual defendants Arthur Solomon, Jack Gorman and Daniel Solomon, informed plaintiff that the HBO account was being taken away from her because allegedly HBO was dissatisfied with plaintiff's performance.

Arthur Solomon is LaSalle's President and is a director and stockholder of that corporation. Jack Gorman is an officer, director and stockholder of LaSalle. Daniel Solomon is Arthur Solomon's son and is an employee of LaSalle.

Despite plaintiff's protest, LaSalle assigned individual defendant Bernard Jacoby to service the HBO account instead of her. The loss of the HBO account meant reduced commissions to plaintiff.

Thus, in August 1979 plaintiff commenced the instant action against LaSalle, Arthur Solomon, Jack Gorman, Daniel Solomon and Bernard Jacoby to recover commissions. Immediately after beginning this action, LaSalle fired plaintiff.

The defendants joined issue by service of an answer.

Plaintiff has served a bill of particulars.

After plaintiff and Arthur Solomon had given depositions, the defendants moved to dismiss the complaint for failure to state a cause of action or in the alternative for summary judgment. Special Term denied this motion in its entirety, upon the basis that there are triable issues of fact as to each cause of action.

We disagree.

The first cause of action alleges that LaSalle breached the oral employment contract with plaintiff by its refusal to pay plaintiff commissions on her accounts, including but not limited to the HBO account. In her verified bill of particulars, plaintiff admits that she is seeking commissions for the period after her termination. Plaintiff concedes in her deposition (see, pages 34-35 of the Record on Appeal [RA] ) that there was no fixed period for her employment. We have said that an employment "without specific termination date ... (is) terminable at will" (Edwards v. Citibank, N.A., 74 A.D.2d 553, 554, 425 N.Y.S.2d 327, app. dism., 51 N.Y.2d 875, 433 N.Y.S.2d 1020, 414 N.E.2d 400). It is a settled principle of law that a sales representative, hired at will, is not entitled to commissions after the termination of employment (Scott v. Engineering News Pub. Co., 47 App.Div. 558, 62 N.Y.S. 609; Pettetier v. Dobbins Trinity Coal (App.T.1st Dept.), Sup., 59 N.Y.S.2d 676; 36 NY Jur, Master and Servant section 48). Applying these principles, we grant defendants' motion for partial summary judgment as to the plaintiff's claim for post-discharge commissions, and we dismiss her claim as to them.

Plaintiff's second cause of action alleges an unjust enrichment claim against LaSalle. Examination of the complaint reveals that plaintiff relies upon the same allegations to support this claim of unjust enrichment as she relied upon to support her claim for breach of contract. The doctrine of unjust enrichment "rests upon the equitable principle that a person shall not be allowed to enrich himself at the expense of another. In truth, it is not a contract or promise at all" (Miller v. Schloss, 218 N.Y. 400, 407, 113 N.E. 337). Plaintiff does not plead any facts that would support the conclusion that LaSalle retained any commissions for itself. In fact, the plaintiff does not dispute the statement contained in Arthur Solomon's affidavit, which he submitted in his capacity as President of LaSalle, that, as to all accounts transferred from plaintiff, full commissions were paid by LaSalle to the sales...