Opinion
January 16, 1996
Appeal from the Supreme Court, New York County (Helen Freedman, J.).
Issues of fact exist concerning the nature of defendant-employee's contract and whether the monies paid to defendant were a draw as against commissions or a salary, thereby precluding summary judgment ( see, Imre v Federal Ins. Co., 220 A.D.2d 319; Santos v Equitable Life Assur. Socy., 220 A.D.2d 274).
Contrary to defendant's argument, New York law does not preclude an employer from bringing a cause of action for the return of excess monies paid to an employee from a drawing account. Such an action is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned ( see, Posner v Precision Shapes, 271 App. Div. 435; Bell-Hi Co. v Pratt, 77 Misc.2d 356). In the matter before us, the existence of such an agreement is in dispute.
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Wallach, J.P., Kupferman, Ross, Williams and Tom, JJ.