Kaye v. Artmatic Corp.

Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about May 24, 1994, which denied plaintiff’s motion for leave to renew his request for future earnings, referred the issue of commissions earned but 474 not yet paid to a Special Referee, and granted renewal of the Labor Law § 191-c (3) claims to the extent of referring the matter to a Special Referee to hear and report, unanimously affirmed, with costs. There are issues of fact which preclude summary judgment on plaintiff’s claim for statutory damages for commissions allegedly not timely paid to the decedent pursuant to Labor Law § 191-c, including whether the decedent falls within the statutory definition of a "sales representative” or was an "independent contractor” (Labor Law § 191-a [d]). Accordingly, it was proper for the court to refer the unresolved factual issues to a Referee. We note that the statute should be interpreted with an emphasis placed on whether the decedent, if found to be a sales representative, solicited orders from New York and not upon the location of the customers. Concur— Ellerin, J. P., Rubin, Asch, Nardelli and Mazzarelli, JJ.