Boutique Industries, Inc. v. Sobel , 636 N.Y.S.2d 328 ( 1996 )

Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about April 14, 1994, which granted defendant’s motion for summary judgment and dismissed the complaint, is unanimously reversed, on the law, without costs, and the motion denied.

Issues of fact exist concerning the nature of defendant-employee’s contract and whether the monies paid to defendant were a draw as against commissions or a salary, thereby precluding summary judgment (see, Imre v Federal Ins. Co., 220 AD2d 319; Santos v Equitable Life Assur. Socy., 220 AD2d 274).

Contrary to defendant’s argument, New York law does not preclude an employer from bringing a cause of action for the return of excess monies paid to an employee from a drawing account. Such an action is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned (see, Posner v Precision Shapes, 271 App Div 435; Bell-Hi Co. v Pratt, 77 Misc 2d 356). In the matter before us, the existence of such an agreement is in dispute.

We have considered defendant’s remaining arguments and find them to be without merit. Concur—Wallach, J. P., Kupferman, Ross, Williams and Tom, JJ.