Handel v. STA Travel (New York) Ltd.

Order, Supreme Court, New York County (Walter Schackman, J.), entered February 8, 1995, which denied defendant’s motion for summary judgment and granted plaintiff’s cross-motion for summary judgment, unanimously affirmed, with costs.

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 AD2d 32).

In this later motion and cross-motion for summary judgment, the IAS Court properly rejected defendant’s contention *178that 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 AD2d 821, appeal dismissed 59 NY2d 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 NY2d 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 All F2d 255). Concur— Murphy, P. J., Ellerin, Wallach, Rubin and Tom, JJ.