Handel v. STA Travel (New York) Ltd.

198 A.D.2d 32, 603 N.Y.S.2d 436

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Myriam Altman, J.), entered on or about May 14, 1993, which, insofar as appealed from, denied defendant’s motion seeking to dismiss the first cause of action, unanimously affirmed, with costs.

The IAS Court properly denied summary judgment dismissing plaintiffs first cause of action for breach of contract, seeking to recover unpaid sales commissions, based upon the court’s determination that the agreement between the parties was, in essence, for a "finder’s fee”, in which the plaintiff was to be paid based upon the sales produced by the travel agencies he had previously recruited (Entis v Atlantic Wire & Cable Corp., 335 F2d 759, 762); that although the defendant could terminate the parties’ at will relationship at any time (Murphy v American Home Prods. Corp., 58 NY2d 293, 300), the plaintiff was nevertheless entitled to compensation for sales generated by the agencies he had recruited prior to the July 25, 1990 termination date as provided in the parties’ agreement (Zupan v Blumberg, 2 NY2d 547, 552), and that plaintiffs entitlement, as an independent contractor rather than an employee of the defendant, to compensation from the defendant for sales previously generated by those travel agents and agencies recruited by the plaintiff on the defendant’s behalf pursuant to the parties’ written agreement, up to the specified contractual limitation, was not precluded by the defendant’s unilateral termination of that agreement (Baum Assocs. v Society Brand Hat Co., 340 F Supp 1158, affd 477 F2d 255; Entis v Atlantic Wire & Cable Corp., supra). Concur — Sullivan, J. P., Rosenberger, Ellerin and Wallach, JJ.