Opinion
April 30, 1998
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
Evidence that defendant was issued a commission check in the amount of $16,125 for the sale of units 4B and 4D at 214 East 9th Street, and that defendant received that check while plaintiff was still retained as defendant's agent, irrefutably established plaintiff's right to receive 60% of the commission Defendant's receipt of the commission within the meaning of the parties' supplemental agreement triggered plaintiff's entitlement to his commission and that entitlement was not adversely affected by defendant's alleged failure to negotiate or replace the commission check.
Plaintiff, however, was not entitled to collect management or override commissions received by defendant after the date of his termination. Plaintiff's entitlement to such commissions did not depend upon his having "earned" the commissions in the manner of brokers and salespersons generally ( see, e.g., Parisi v. Swift, 121 Misc.2d 787, affd 128 Misc.2d 388), but was governed by a special agreement ( see, Tanker Intl. Nav. Corp. v. National Shipping Trading Corp., 116 A.D.2d 40, 43; Graff v. Billet, 101 A.D.2d 355, 356, affd 64 N.Y.2d 899). That agreement provided for payment to plaintiff of a percentage of the gross commissions generated by sales agents under plaintiff's management and "collected" by defendant. The commissions in dispute were not "collected" prior to the termination of plaintiff's employment.
We have considered the parties' remaining arguments for affirmative relief and find them to be without merit.
Concur — Milonas, J.P., Wallach, Tom, Mazzarelli and Saxe, JJ.