SMART TRIKE, MNF, PTE, LTD. v. PIERMONT PRODUCTS, LLC

650376/12-3062A, 3062, 3061.

2017 NY Slip Op 01127

SMART TRIKE, MNF, PTE, LTD., Plaintiff-Respondent-Appellant, v. PIERMONT PRODUCTS, LLC, FORMERLY KNOWN AS SMART TRIKE, LLC, Defendant-Appellant-Respondent, ROBERT KRAMER, ET AL., Defendants.

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


Attorney(s) appearing for the Case

Rand Rosenzweig Radley & Gordon LLP, White Plains ( Charles L. Rosenzweig of counsel), for appellant-respondent.

Lowenstein Sandler LLP, New York ( Jeffrey J. Wild of counsel), for respondent-appellant.

Before: Sweeny, J.P., Acosta, Mazzarelli, Manzanet-Daniels, Webber, JJ.


Appeals from order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 12, 2014, and order, same court and Justice, entered October 16, 2015, as supplemented by order entered on or about January 29, 2016, deemed appeals from judgment, same court and Justice, entered July 12, 2016, in plaintiff's favor (CPLR 5501[c]), and, so considered, said judgment unanimously affirmed, with costs.

The motion court correctly granted plaintiff summary judgment dismissing the counterclaims except insofar as the plain language of the parties' agreement required plaintiff to provide six months' notice of the termination of the agreement, during which period defendant was entitled to its earned commissions (W.W.W. Assoc. v Giancontieri, 77 N.Y.2d 157, 162 [1990]).

Because defendant held more of plaintiff's money than the amount of its own claimed commissions, the motion court correctly found the New Jersey Sales Representatives' Rights Act, pertaining to "unpaid" commissions (see NJ Stat Ann 2A:61A-2), inapplicable. The court also correctly concluded that New York Labor Law § 191-c did not apply to defendant, which admitted that it only solicited orders from its headquarters in New Jersey (see § 191-a[d]).

The plain language of the contract defeats the counterclaim for lost profits.

We perceive no error in the starting date set by the court for computing prejudgment interest (see CPLR 5001).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


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