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Decided on May 16, 2005
Supreme Court, Suffolk County

15496-03
BRIAN K. SALTZ, ESQ. Attorney for Plaintiff 500 Bi-County Boulevard, Suite 112 Farmingdale, New York 11735 GRAFSTEIN - SUAREZ & ASSOCIATES, P.C. Attorneys for Defendant 215 East Main Street, Suite 206
Huntington, New York 11743-7904
Elizabeth Hazlitt Emerson, J.
On June 21, 2000, the parties entered into a written contract in which the plaintiff was retained to act as the defendant's exclusive sales agent and representative for the solicitation of orders for picture frames and framed art. The agreement provided that the defendant would pay the plaintiff a commission of between 5% and 10% of net billings, depending on the discount structure utilized when selling the product to the customer. Net billings were defined as gross sales less freight and other delivery charges, discounts, advertising allowances, insurance costs, sales taxes, special handling charges, rebates, defective allowances, and warehouse allowances. The agreement also provided that it could not be amended "except in writing and signed by both parties."
In October 2000, the defendant added J.C. Penney to the list of companies for which the plaintiff would act as its sales agent and representative. While the defendant initially paid the
Index No.: 15496-03
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plaintiff a 5% commission for sales to J.C. Penney, in April 2002, it reduced the plaintiff's commission to 3% retroactive to February 2002. In an e-mail dated April 29, 2002, the defendant
advised the plaintiff of the change as follows:
This is to serve as confirmation of our discussion pertaining to your commission structure for J.C. Penney corporate stores. Due to the high costs incurred by providing fixtures and brackets to J.C. Penney corporate stores at no charge, it is necessary to reduce the commission rate from 5% to 3%. Please review the format below detailing the commission rates and net aggregate dollar volumes to be attained before returning back to the original commission rate.
The plaintiff's principal Wayne Schneider responded, "Thanks Nick, could we discuss whenever you are available? Wayne"
Subsequent discussions about the reduced commission did not result in a formal written agreement. On January 9, 2003, the defendant terminated the parties agreement, and this action ensued. The plaintiff seeks to recover the difference between the 5% commission provided for in the parties' written agreement and the 3% paid from February through December 2002 ($40,501). The defendant counterclaims for alleged overpayments to the plaintiff in the amounts of $4,543.03, $906.63, and $1,278.55, respectively. Both sides now move for summary judgment. [*2]
Preliminarily, the court notes that, although the plaintiff is domiciled in Texas and the contract was negotiated, signed, and performed in Texas, the plaintiff explicitly consented "to the jurisdiction of the State of New York, County of Suffolk for the purposes of any claim, dispute or litigation arising under or in connection with this agreement." Moreover, the agreement provides, "[I]f any paragraph, or part thereof, shall be considered void or invalid under the laws of the State of New York, the remaining portions of this Agreement which are severable shall remain in full force and effect." The court, therefore, finds that the agreement intended for New York law to apply to any disputes thereunder. The court also finds that this dispute is not governed by General Obligations Law

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