Fisher v. A.W. Miller Technical Sales, Inc. , 762 N.Y.S.2d 205 ( 2003 )

—Appeal from that part of an order of Supreme Court, Ontario County (Doran, J.), entered July 9, 2002, that denied in part defendant’s motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Supreme Court properly denied those parts of defendant’s motion seeking summary judgment dismissing the cause of action for breach of contract and the cause of action sounding in quantum meruit or quasi contract. Plaintiff, who was employed by defendant as a salesman, submitted a letter dated January 26, 2000 stating that he intended to resign effective January 31, 2000. By another letter dated that same day, plaintiff sought certain commissions, some of which were paid as requested. Plaintiff also sought 50% of the commission due on a sale to one customer and suggested that the commission due on a sale to another customer be paid to his successor. Those two commissions are the subject of this action. Under the express terms of the revised contract between plaintiff and defendant, plaintiff is not entitled to commissions on sales of equipment not yet shipped as of the date on which plaintiff’s resignation is accepted by defendant.

In response to those letters, plaintiff’s supervisor asked plaintiff to consider alternative compensation packages in an effort to continue plaintiff’s employment with defendant. Plaintiff at some point told his supervisor that he would not pursue possible alternative compensation packages and, as of January 31, 2000, plaintiff ceased soliciting business for defendant and ceased receiving benefits from defendant. Plaintiff, who worked out of his home, began working for another company in February 2000. His contract with defendant had never been exclusive, however, and his new employment did not preclude continued employment by defendant. In fact, plaintiff continued to receive mailings from defendant and defendant’s customers.

The parties did not reach an agreement regarding all commissions due plaintiff and, by letter dated September 5, 2000, plaintiff sought the full commissions that are the subject of this action inasmuch as nothing had been paid with respect to those commissions. When defendant did not respond, plaintiff commenced this action seeking payment of those commissions under his employment contract on the theory that his resignation had still not been accepted because his accounts had not been reconciled, as well as under the theory of quantum meruit or quasi contract. Defendant moved for summary judgment dismissing the complaint. The court granted the motion only in part, dismissing the cause of action for an accounting. We affirm.

We conclude that the court properly denied that part of the motion with respect to the cause of action for breach of contract because defendant failed to meet its burden of establishing when, if ever, plaintiff resigned and when, if ever, defendant accepted that resignation. Thus, defendant failed to meet its burden of establishing as a matter of law that it did not breach the contract. In support of its motion, defendant submitted portions of plaintiff’s deposition testimony in which plaintiff testified that he ceased soliciting business for defendant as of January 31, 2000. However, plaintiff also testified therein that he continued to receive mailings from defendant and defendant’s customers as well as payment of some commissions. In any event, even assuming, arguendo, that defendant met its initial burden with respect to the breach of contract cause of action, we conclude that plaintiff raised an issue of fact by submitting an affidavit in which he averred that his contracts with defendant and his new employer were not exclusive and thus he could work as a salesman for defendant and his new employer at the same time. Despite defendant’s conclusory assertion that plaintiff’s resignation was accepted, nothing in defendant’s submissions establishes that defendant in fact ever accepted the resignation. Indeed, in plaintiff’s deposition testimony submitted by defendant, plaintiff testified that his supervisor attempted to negotiate alternative compensation packages with him. To establish its entitlement to terminate plaintiff’s right to commissions under the contract and thus to establish that it did not breach its contract with plaintiff, defendant had to establish that plaintiff resigned and that the resignation was accepted before the goods were shipped (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to the characterization of the dissent, we do not conclude that the terms “resignation” and “acceptance” are ambiguous, but rather, we conclude that defendant failed to establish if and when the resignation and acceptance occurred.

We further conclude that the court properly denied that part of defendant’s motion seeking summary judgment dismissing the cause of action sounding in quantum meruit or quasi contract. Although “[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; see Randall v Guido, 238 AD2d 164 [1997]; Heller v Kurz, 228 AD2d 263, 263-264 [1996]), it is not the law in New York “that a claim in contract and one in quasi contract are mutually exclusive in all events and under all circumstances” (Joseph Sternberg, Inc. v Walber 36th St. Assoc., 187 AD2d 225, 227-228 [1993]). Where, as here, there is a bona fide dispute whether the contract covers the controversy in issue, “a plaintiff may proceed upon a theory of quantum meruit as well as contract, and will not be required to elect his or her remedies” (Sforza v Health Ins. Plan of Greater N.Y., 210 AD2d 214, 215 [1994]; see Randall, 238 AD2d 164 [1997]; Joseph Sternberg, Inc., 187 AD2d at 228; see generally Smith v Kirkpatrick, 305 NY 66, 73 [1953], rearg denied 305 NY 926 [1953], overruled in part on other grounds O’Brien v City of Syracuse, 54 NY2d 353, 358 n 1 [1981]).

All concur except Hurlbutt and Lawton, JJ., who dissent and vote to reverse the order insofar as appealed from in accordance with the following memorandum.