Opinion
June 27, 1995
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
This Court previously affirmed the denial of summary judgment wherein defendant had sought to dismiss plaintiff's first cause of action for breach of contract to recover unpaid post-termination sales commissions. We held that the parties' agreement was essentially for a finder's fee to be paid based upon sales produced by travel agencies that plaintiff, as an independent contractor, had previously recruited ( 198 A.D.2d 32).
In this later motion and cross-motion for summary judgment, the IAS Court properly rejected defendant's contention that plaintiff's deposition testimony supported its claim that plaintiff acted as a sales representative and was thus not entitled to post-termination commissions ( see, Mackie v. La Salle Indus., 92 A.D.2d 821, appeal dismissed 59 N.Y.2d 750). The record conclusively demonstrated that plaintiff was an independent contractor as he was not subject to defendant's direction and control as to the manner in which he procured sales ( see, Matter of Ted Is Back Corp. [Roberts], 64 N.Y.2d 725) and thus he was entitled to post-termination commissions to the specified contractual limitation ( see, Baum Assocs. v. Society Brand Hat Co., 340 F. Supp. 1158, affd 477 F.2d 255).
Concur — Murphy, P.J., Ellerin, Wallach, Rubin and Tom, JJ.