Rosenthal v. Quadriga Art, Inc.

• Citation: 2013 N.Y. Slip Op. 02475,963 N.Y.S.2d 192,105 A.D.3d 507
• Parties: Gloria ROSENTHAl, etc., Plaintiff–Respondent–Appellant, v. QUADRIGA ART, INC., Defendant–Appellant–Respondent.
• Decision Date: 11 April 2013
• Court: New York Supreme Court Appellate Division

105 A.D.3d 507

963 N.Y.S.2d 192

2013 N.Y. Slip Op. 02475

Gloria ROSENTHAl, etc., Plaintiff–Respondent–Appellant,

v.QUADRIGA ART, INC., Defendant–Appellant–Respondent.

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

April 11, 2013.

Graubard Miller, New York (Edward H. Pomeranz of counsel), for appellant-respondent.

Marin Goodman L.L.P., Harrison (Dean L. Jarmel of counsel), for respondent-appellant.

ANDRIAS, J.P., SWEENY, MOSKOWITZ, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 22, 2011, which, insofar as appealed from as limited by the briefs, granted defendant Quadriga Art, Inc.'s motion for summary judgment dismissing the second cause of action to the extent it sought to recover unpaid commissions for the years 2000, 2001, and 2003; denied Quadriga's motion for summary judgment dismissing the second cause of action to the extent of declining to address Quadriga's defense that the Estate of Alfred J. Rosenthal was entitled to commissions only on orders actually taken by decedent Rosenthal and that the amount of those commissions was not required to be 10 percent; and denied that branch of the same motion seeking dismissal of the second cause of action as to unpaid commissions for the year 2002, unanimously modified, on the law, to deny defendant's motion for summary judgment with respect to plaintiff's second cause of action completely and otherwise affirmed, without costs.

The motion court properly declined to grant defendant's motion for summary judgment regarding the amount of commissions due to the defendant's estate. The record shows that decedent occasionally was paid commissions on orders that he did not personally write up or service, including some accounts that he brought to defendant but were subsequently converted to “house accounts.” Moreover, there are factual and credibility issues regarding whether defendant always paid decedent commissions of 10 percent, as well as whether defendant “gifted” certain amounts to decedent in various years, including some years for which defendant asserts accord and satisfaction as a defense to the Estate's claims. Resolution of these issues is more appropriate for the finder of fact ( see Martin v. Citibank, N.A., 64 A.D.3d 477, 478, 883 N.Y.S.2d 483 [1st Dept. 2009] ).

Contrary to the motion court's finding, the estate's claim for commissions for the years 2000, 2001, and 2003 is not barred by the principle of accord and satisfaction. Accord and satisfaction requires the...