Judge Andrew Carter
New Jersey-based Mapssy designs, makes, and sells women’s apparel to department and chain stores. In 2006 it retained New Yorker Gardner as a merchandiser and independent commissioned sales representative for its Agora division. Gardner’s compensation—formalized in an October 2007 commission agreement—was determined by one formula for sales to department stores and boutiques, and by a second formula for sales to discount stores with zero-return policies. In a contract breach action seeking $221,475 in commission overpayments, the court found Gardner liable for breach and that Mapssy was entitled to $272,124, comprising the stipulated commission overpayment amount as well as $50,648 on unearned commission advances where products were returned by customers and refunded. In addition to rejecting Gardner’s breach of contract counterclaim against Mapssy—as well as his unjust enrichment claim against Mapssy and its principal Choi—the court found Gardner an independent contractor, not an employee. Thus neither Mapssy nor Choi were liable under New York’s Labor Law §190 et seq. on his claim that Mapssy refused to pay commissions owed within the statutorily prescribed time period.