Michnick v. Parkell Products, Inc.
| Decision Date | 08 May 1995 |
| Citation | 215 A.D.2d 462,626 N.Y.S.2d 265 |
| Parties | Bruce MICHNICK, Appellant, v. PARKELL PRODUCTS, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
George M. Faber, Westbury (Joseph M. Rosenthal, of counsel), for appellant.
Cahn, Wishod & Lamb, Melville (Eugene R. Barnosky and Joel M. Markowitz, of counsel), for respondents.
Before JOY, J.P., and FRIEDMANN, KRAUSMAN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
In an action for an accounting and to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Collins, J.), dated February 2, 1993, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211 and 3212 and denied the plaintiff's cross motion, inter alia, to strike the defendants' answer.
ORDERED that the order is affirmed, with costs.
In 1979, the plaintiff Bruce Michnick and the defendant Parkell Products, Inc. (hereinafter Parkell), entered into an agreement by which Parkell agreed to pay Michnick a 5% commission for each product that he originated or evaluated and that was sold as part of Parkell's line. In 1991, Parkell advised Michnick that the agreement was being changed so that Michnick's percentage of commissions would be reduced to less than 5% but included a guarantee of $40,000 per year. Two months later, Parkell advised Michnick that the agreement was terminated. Michnick then commenced this action where he sought, inter alia, an accounting and damages for wrongful discharge.
The agreement between Michnick and Parkell only created an employer-employee relationship since it merely provided for a division of the profits, not a sharing of any losses (see, Reichert v. MacFarland Bldrs., 85 A.D.2d 767, 445 N.Y.S.2d 264; see also, Waldman v. Englishtown Sportswear, 92 A.D.2d 833, 460 N.Y.S.2d 552; Moscatelli v. Nordstrom, 40 A.D.2d 903, 337 N.Y.S.2d 575). Thus, no fiduciary relationship was created that would entitle Michnick to an accounting (see, Reichert v. MacFarland Bldrs., supra ).
Since the agreement was not for a specific period of time, it merely created an employment-at-will, which could be terminated by either party at any time (see, Sabetay v. Sterling Drug, 69 N.Y.2d 329, 514 N.Y.S.2d 209, 506 N.E.2d 919; Mayer v. Publishers Clearing House, 205 A.D.2d 506, 613 N.Y.S.2d 190). Therefore, there is no liability in tort (see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86; ...
To continue reading
Request your trial
-
Town of Riverhead v. Cnty. of Suffolk
...The failure to allege a fiduciary relationship is fatal to Riverhead's claim for an accounting, See: Dee, supra; Michnick v. Parkell, 215 A.D.2d 462, 626 N.Y.S.2d 522 265 (2nd Dept. 1995). In addition, the existence of publically available operating and capital budgets detailing revenues an......
-
Lawrence v. Kennedy
...have only an employee-employer relationship ( Vitale v. Steinberg, 307 A.D.2d 107, 108, 764 N.Y.S.2d 236; Michnick v. Parkell Products, Inc., 215 A.D.2d 462, 462–63, 626 N.Y.S.2d 265; Reichert v. MacFarland Builders, Inc., 85 A.D.2d 767, 768, 445 N.Y.S.2d 264). “A cause of action alleging a......
-
Lawrence v. Kennedy
...obligation on the part of the employer ( see Vitale v. Steinberg, 307 A.D.2d 107, 108, 764 N.Y.S.2d 236;Michnick v. Parkell Prods., 215 A.D.2d 462, 462–463, 626 N.Y.S.2d 265), here, the plaintiff also alleged that he was a founding partner of the firm and that his longstanding relationshipw......
-
Max v. Moseson
...Robertazzi v. Cunningham, 294 A.D.2d 418, 742 N.Y.S.2d 115; Thawley v. Turell, 289 A.D.2d 169, 736 N.Y.S.2d 2; Michnick v. Parkell Prods., 215 A.D.2d 462, 626 N.Y.S.2d 265). New York does not recognize a cause of action for the tort of abusive or wrongful discharge of an at-will employee (B......