Specialized Search Associates, Inc. v. Cadillac-Fairview Shopping Centers (U.S.) Ltd. ( 1983 )

Kupferman, J. P.,

dissents in a memorandum as follows: I dissent and would reverse and grant summary judgment in lieu of complaint pursuant to CPLR 3213. The plaintiff-appellant is an executive recruiting firm and pursuant to its retainer by the defendant, recruited a controller for the defendant, who was hired on September 7, 1982 at an annual salary of $65,000. The plaintiff submitted a bill for services rendered in the amount of $19,500 based on its claim that its arrangement with the defendant was for 30% of the employee’s first year’s annual salary. On or about October 29, the defendant sent the plaintiff a check for $13,000 with a covering letter stating that it had a policy of paying 20% commission for the kind of services performed. Although it believed that it was entitled to the full amount of $19,500, the plaintiff accepted the check and deposited it. Thereafter the check was stopped because the employee involved had given notice that he was leaving his employment with the defendant. It is the defendant’s contention that there was an implied condition that the employment continue for a reasonable time and that two months was not a reasonable time. Over seven weeks after the employment, the defendant sent a check to cover its obligation for the recruiting service rendered, although it was billed therefor on September 7. It thus made its own determination as to a reasonable time. There has been no showing or contention that the plaintiff in any way interfered with the employment arrangement by the person recruited. That it fulfilled its part of the bargain was shown by the covering letter sent to it by the defendant with the check which was later stopped. “Enclosed you will find a check for $13,000 which represents full payment in connection with the employment of Raymond Braun. Our Corporate Policy has always been to pay 20% commission for such work and therefore you will find a check for $13,000. Thank you for your assistance.” Summary judgment on the instrument is warranted.