New York Supreme and/or Appellate Courts Appellate Division, First Department
May 9, 2013
LAWRENCE KASOFF, PLAINTIFF-RESPONDENT,
KVL AUDIO VISUAL SERVICES, INC., ET AL.,
Kasoff v KVL Audio Visual Servs., Inc.
Decided on May 9, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Freedman, Roman, JJ.
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 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).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2013
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