| Kasoff v KVL Audio Visual Servs., Inc. |
| 2011 NY Slip Op 06651 [87 AD3d 944] |
| September 29, 2011 |
| Appellate Division, First Department |
| Lawrence Kasoff, Appellant, v KVL Audio VisualServices, Inc., et al., Respondents. |
—[*1] Clifton Budd & DeMaria, LLP, New York (George F. Brenlla of counsel), forrespondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 8, 2010,which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partialsummary judgment on his Labor Law cause of action, denied his motion to strike defendants'answer, granted defendants' motion for summary judgment to the extent of dismissing portions ofplaintiff's breach of contract cause of action and dismissing his Labor Law cause of action in itsentirety, unanimously modified, on the law, to deny summary judgment to defendants on theLabor Law cause of action, grant partial summary judgment to plaintiff on his Labor Law §191 (1) (c) claim, and grant plaintiff's motion to strike defendants' answer to the extent ofprohibiting defendants from offering evidence in support of the contention that plaintiff was fullypaid the Miscellaneous commission, and otherwise affirmed, with costs against defendants.
The court improperly granted summary judgment to defendants dismissing the portions ofplaintiff's breach of contract cause of action alleging nonpayment of commissions on theMetropolitan Club, Miscellaneous, and Meadowlands Exposition Center accounts. There areissues of fact as to whether the accounts were properly classified, whether plaintiff knew of theclassifications and whether, had plaintiff disputed the designation, defendants would havechanged the designation.
The court also improperly granted summary judgment to defendants dismissing plaintiff'sLabor Law § 191 (1) (c) claim. Plaintiff qualified as a "commission salesman" as definedby Labor Law § 190 (6) and thus may be afforded the protections of Labor Law §191 (1) (c) and § 195 (3). In addition, plaintiff has shown that, despite repeated writtenrequests, defendants failed to provide him with "a statement of earnings paid or due and unpaid"that included "a description of how wages, salary, drawing account, commissions and all othermonies earned and payable shall be calculated" (Labor Law § 191 [1] [c]). The ledgerspresented by defendants are insufficient to satisfy the specificity prescribed by the statute andplaintiff is entitled to summary judgment on this claim. Plaintiff, however, is not entitled tosummary judgment on his Labor Law § 195 (3) claim. Plaintiff has offered evidence ofunpaid commissions only and the term "wages," despite its broad definition (Labor Law §190 [1]), does not encompass commissions (see Matter of Dean Witter Reynolds v Ross,75 AD2d 373, 381 [1980]).
Plaintiff's motion to strike should have been granted to the extent of prohibiting [*2]defendants from offering evidence in support of the contention thatplaintiff was fully paid the Miscellaneous commission of $47,731.47, and awarding plaintiff thatamount. The record establishes that defendants' counsel actively interfered with discovery byintercepting documents under subpoena to a third party. Defendants also admittedly altered acommission report pertaining to the Miscellaneous account and produced it in the course ofdiscovery as if it were the original business record. These acts, together, evidence a sanctionablepattern of behavior (see 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245, 245-246[1990]; see also Garnett v Hudson Rent A Car, 258 AD2d 559 [1999]) requiringpreclusion.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Tom, J.P., Catterson, Renwick, Freedman and Manzanet-Daniels, JJ.