Ghaffari v. Rima Investors Corp. ( 1999 )

—Order of the Appellate Term of the Supreme Court, First Department (Ostrau, P. J., Mc-Cooe and Freedman, JJ.), entered November 28, 1997, which modified an order of the Civil Court, New York County (Saralee Evans, J.), entered December 19, 1996, to grant defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action, in which plaintiff alleges that defendants, her former employers in a jewelry business, breached an oral agreement to pay her a 20% commission on sales to customers that she referred to them, should be dismissed since the alleged agreement is subject to the Statute of Frauds (General Obligations Law § 5-701 [a] [10]). The doctrine of part performance does not avail plaintiff. Plaintiffs conduct, which included acceptance of commissions on completed transactions substantially less than 20%, is as referable to the series of individually negotiated ad hoc agreements asserted by defendants as with the fixed agreement asserted by plaintiff (see, Anostario v Vicinanzo, 59 NY2d 662). We have considered and rejected plaintiffs other contentions. Concur — Ellerin, P. J., Rosenberger, Tom, Andrias and Buckley, JJ.