Arnold Wolinetz, the above captioned plaintiff, pursuant to complaint dated April 25, 2007, seeks to recover $2,689.43 of office furniture commissions which were allegedly withheld by the above captioned defendant, Island Stationary Corp., after the plaintiff left its employ. The defendant interposed a general denial answer and a trial of the matter was conducted August 16, 2007.

Undisputed Facts

For several years the plaintiff was a commission sales agent for the defendant office furniture supplier. Plaintiff voluntarily terminated his employ by giving two weeks notice in December of 2006. The defendant promulgated and the plaintiff received a copy of the defendant's "showroom sales compensation plan" post October 2006 (Exhibit B). The defendant admits at least $827.43 commissions were due the plaintiff under the compensation plan.Although not admitted, the record does not indicate that the defendant responded to the plaintiff's demand for a statement of unpaid earnings.

Disputed Facts

The defendant asserts that any commissions due the plaintiff as of his employment [*2]departure date are waived and not payable under an oral office policy. The defendant also asserts that as the result of $2,199 of charge backs, that the defendant owes it $349.85 for overpaid commissions even if said commissions were due and payable.

The Law

The plaintiff has cited to Sec. 191 (c) of the New York Labor Law in support of his claim. Sec. 191 (c) of the New York Labor Law provides as follows:

§ 191-c. Payment of sales commission

1. When a contract between a principal and a sales representative is terminated, all earned commissions shall be paid within five business days after termination or within five business days after they become due in the case of earned commissions not due when the contract is terminated.

3. A principal who fails to comply with the provisions of this section concerning timely payment of all earned commissions shall be liable to the sales representative in a civil action for double damages. The prevailing party in any such action shall be entitled an award of reasonable attorney's fees, court costs and disbursements.

Sec. 191 (a) defines principal as "a person or company engaged in the business of manufacturing, and who (1) manufactures... distributes a product for wholesale..." Emphasis added. While not addressed by the parties via testimony, a review of Exhibit 1 indicates that the subject furniture was sold to Brookhaven Memorial Hospital, Harvest Bakery, Locust Valley Electric Co., Freshbrick, Inc. and Fragrance Systems, Int'l. The number of units sold together with the type ofunits indicate these were retail rather than wholesale transactions. Additionally, Exhibit B and the plaintiff's unrebutted testimony indicates that the plaintiff was an "employee" and not an independent contractor. The provisions of Sec. 191 (c) are designed only to protect "independent contractors." See, Derven v. PH Consulting, Inc. 427 F. Supp. 2d 360 (S.D. NY 2006). As such, Sec. 191 (c) with its double damages punitive provision is inapplicable to the case at bar.

However, This is a small claims proceeding which dispenses with the need for plaintiffs to accurately articulate all elements of a cause of action and instead places the responsibility upon the Court to ascertain what legal issues have been joined for disposition Dvoskin v. Levitz Furniture Co., 9 Misc 3d 1125 (A) (2005). The present claim appears to fit the definitional requirements of sec. 191 (1) (c) which provides:

Commission sales.- A commission salesman shall be paid the wages, salary, draw account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month...The employer shall furnish a commission salesman, upon written request, a statement of earnings paid due and unpaid. [*3]Emphasis added.

It is undisputed that the plaintiff is a "commission sales agent" as defined in Sec. 190 (6) and that utilizing the plaintiff's numbers he was due $2,656.29 of wage/commissions pursuant to the defendant's showroom sales compensation plan. See Exhibits B and 1. The defendant's defense involves the assertion that only $827.43 of commissions were due and that it was entitled to $2,199 of unexplained charge backs. The Court rejects this defense for two reasons. Firstly, any computation dispute could, and should, have been resolved had the defendant complied with the Sec. 191 (1) requirement that "the employer shall furnish a commission salesman, upon written request, a statement of earnings paid or due and unpaid." In this instance the plaintiff made a written demand for same,(See, Exhibit 2 )which was ignored. While not stated in the statute, the Court logically concludes that the legislature intended that the consequence for an employer's failure to provide the mandated statement of earnings is the creation of a presumption that the commissioned sales agents computations are correct.

Secondly, Sec. 193 of the New York Labor Law provides:

§ 193 Deduction of wages

1. No employer shall make any deduction from the wages of an employee, except deductions which:

a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or

b. are expressly authorized in writing by the employee and are for the benefit of the employee...

Commissioned salesman are covered by this statute. See, Tuttle v/ Geo. McQuesten Co., 227 AD2d 754 (3rd Dept. 1996). It is conceivable that the deductions, which the defendant's testimony described as "charge backs" were in reality an unexplained recalculation of commissions. However, it would be the defendant's burden to establish same. The record contains little definitive evidence that the post termination charge back involves an allowable recomputation of earned commissions as opposed to a prohibited deduction for an unrelated transaction.

What is clear is that the defendant testified that it would not pay commissions for any jobs not completed by December 31, 2006 (the plaintiff's termination date). While such a policy may be logical, and legally sustainable under contract and labor law, it fails in this instance as it is not contained in the showroom sales compensation contract which details the parties agreement. As unilateral drafter of this agreement, the defendant must bear the consequence for the failure to state the existence of a "no payment after employment termination" policy. See, Graff v. Billet, 64 NY2d 899 (1985). Absent establishing a formal contractual policy to the contrary; case law indicates that commissions earned prior to employment termination but before [*4]payment by the customer, are recoverable under a Sec. 191

(1 )( c) theory. See, Rasmussen v. Yellow River , Inc. 298 AD2d 322 (1st Dept. 2002) citing to Yudell v. Ann Israel and Assoc. Inc., 248 AD2d 189 (1st Dept. 1998). In the instant case, the Court finds that such a policy was not communicated to the plaintiff; did not formally exist and is now being advanced as a wilful act of retaliation for the plaintiff leaving the defendant's employ.

Sec. 198 (1) (a) of the New York Labor Law provides:

In any action instituted upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee reasonable attorney's fees and , upon a filing that the employer's failure to pay the wage required by this article was willful, an additional amount as liquidated damages equal to twenty-five percent of the total amount of the wages found to be due.

Premised upon its previous finding of a wilful failure to pay commissions due, the Court finds that a liquidated damage of twenty-five percent of $2,656.29 ($664.07) be added to the $2,656.29 of outstanding commissions and that the Clerk of the Court enter judgment for the plaintiff and against the defendant in the sum of $3,320.36 plus costs and interest from November 30, 2006.

Dated:__________

____________________________

J.D.C.