Kasoff v. KVL Audio Visual Services, Inc.

106 A.D.3d 470, 965 N.Y.S.2d 871

Opinion

Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered April 18, 2012, insofar as appealed from as limited by the briefs, awarding plaintiff a total amount of $215,672.72, inclusive of double damages, court costs and reasonable attorneys’ fees, unanimously modified, on the law, to strike that part of the judgment awarding double damages, court costs and reasonable attorneys’ fees, and to remand for recalculation of interest and total judgment, and otherwise affirmed, without costs.

This Court’s prior order (see Kasoff v KVL Audio Visual Servs., Inc., 87 AD3d 944 [1st Dept 2011]) awarded plaintiff the full amount of his Miscellaneous commission claim ($47,731.47) as a sanction for defendants’ intentional interference with discovery orders and alteration of critical discoverable documents (see Sony Corp. of Am. v Savemart, Inc., 59 AD2d 676 [1st Dept 1977]).

However, plaintiff was not entitled to double damages, court costs and reasonable attorneys’ fees as allowed under Labor Law § 191-c. That provision is limited to “sales representative[s]” who work as independent contractors pursuant to contracts with a principal as defined in Labor Law § 191-a, and here, plaintiff was employed by defendants, which made him a “[Commission salesperson[ ],” as that term is defined in Labor Law §§ 190 (6) and 191 (1) (c). Concur—Andrias, J.E, Saxe, Freedman and Román, JJ.