Summary
finding that an agreement between plaintiff and defendant under which defendant agreed to pay plaintiff a commission for each product he originated or evaluated did not create a fiduciary relationship which would entitle plaintiff to an accounting
Summary of this case from Fadina v. Meghan BeardOpinion
May 8, 1995
Appeal from the Supreme Court, Nassau County (Collins, J.).
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, Reichart v MacFarland Bldrs., 85 A.D.2d 767; see also, Waldman v Englishtown Sportswear, 92 A.D.2d 833; Moscatelli v Nordstrom, 40 A.D.2d 903). Thus, no fiduciary relationship was created that would entitle Michnick to an accounting (see, Reichart 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; Mayer v Publishers Clearing House, 205 A.D.2d 506). Therefore, there is no liability in tort (see, Murphy v American Home Prods. Corp., 58 N.Y.2d 293; O'Reilly v Citibank, 198 A.D.2d 270) or in contract (see, Gould v Community Health Plan, 99 A.D.2d 479) for wrongful discharge.
The plaintiff's remaining contentions are without merit. Joy, J.P., Friedmann, Krausman and Florio, JJ., concur.