| Pergola v New York City Rest. Group |
| 2006 NY Slip Op 51892(U) [13 Misc 3d 132(A)] |
| Decided on October 5, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants New York City Restaurant Group, Mangaroni, LLC d/b/a Sette, Malta Enterprises Inc. d/b/a Malta Enterprises, Robert Malta, Enrico Malta and Demetrius Partridge appeal, as limited by their brief, from so much of an order of the Civil Court, New York County (Jeffrey K. Oing, J.), entered March 13, 2006, as denied that branch of their cross motion for summary judgment dismissing the complaint as against them.
PER CURIAM:
Order (Jeffrey K. Oing, J.), entered March 13, 2006, affirmed, with $10 costs.
Civil Court properly denied the moving defendants' motion for summary judgment dismissal of the complaint. Issues of fact exist as to the enforceability of the purported employment agreement upon which plaintiff's cause of action for breach of contract is predicated, and defendants' liability thereunder, if any, for unpaid commissions and wages allegedly owed plaintiff for services rendered pursuant to the agreement. Inasmuch as plaintiff is not the party seeking summary judgment, she is not required to elect her remedies at this junction (see Wilmoth v Sandor, 259 AD2d 252, 254 [1999]). Defendant's argument that plaintiff's claim is barred by the doctrine of judicial estoppel, raised for the first time on appeal, is not properly considered.
This constitutes the decision and order of the court.
Decision Date: October 5, 2006