Summary
holding that "the Supreme Court properly dismissed the causes of action to recover damages in quantum meruit and for unjust enrichment" because a plaintiff "may not assert these causes of action to circumvent the Statute of Frauds"
Summary of this case from KJ Roberts & Co. v. MDC Partners Inc.Opinion
April 6, 2001.
April 30, 2001.
Hymowitz Freeman Krupman, New York, N.Y. (Thomas Torto of counsel), for appellant.
Jackson, Lewis, Schnitzler Krupman, Woodbury, N.Y. (Marc S. Wenger of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, P.J., ANITA R. FLORIO, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated January 3, 2000, as granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action to recover damages for breach of contract, unjust enrichment, and in quantum meruit.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly dismissed the cause of action to recover damages for breach of contract. An agreement to pay an at-will employee commissions earned during the period of his or her employment is capable of performance within one year and does not violate the Statute of Frauds (see, Cron v. Hargro Fabrics, 91 N.Y.2d 362, 370; Caruso v. Malang; 250 A.D.2d 800; Gold v. Benefit Plan Adm'rs, 233 A.D.2d 421; Apostolos v. R. D. T. Brokerage, 159 A.D.2d 62). Contrary to the plaintiff's contention, however, the commissions he seeks to recover were not earned during the time of his employment. Thus, an agreement to pay those commissions to the plaintiff was not capable of performance within a year and had to be in writing pursuant to the Statute of Frauds (cf., Cron v. Hargro Fabrics, supra; Gold v. Benefit Plan Adm'rs, supra; Apostolos v. R. D. T. Brokerage, supra).
Similarly, the Supreme Court properly dismissed the causes of action to recover damages in quantum meruit and for unjust enrichment, as the plaintiff may not assert these causes of action to circumvent the Statute of Frauds (see, American European Art Assocs. v. Trend Galleries, 227 A.D.2d 170; Bauman Assocs. v. H M Int'l Transp., 171 A.D.2d 479, 484; Tallini v. Business Air, 148 A.D.2d 828).