Opinion
June 29, 1993
Appeal from the Supreme Court, New York County (William Davis, J.).
Under the governing memorandum, employees were to be rewarded for performance that resulted in new business but not to "receive" their commissions therefor until after defendant had invoiced the client for payment. We agree with the IAS Court that such terms are susceptible to an interpretation that plaintiff "earned" commissions before resigning from defendant's employ even though the client had not yet been invoiced. Given this ambiguity attributable, as the IAS Court put it, to the "vast difference between earning and receiving," evidence of trade custom or prior usage is relevant, and the evidence thereof adduced by plaintiff was sufficient to raise a question of fact when the commissions were earned. The IAS Court did not abuse its discretion in striking defendant's answer unless its president was produced for deposition. As the previously established deadlines for such deposition have now passed, we modify to set a new 30-day deadline therefor. We have considered defendant's remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Carro, Wallach and Nardelli, JJ.