IN RE: Arbitration Between Stephen APKON (1997)

Judgment, Supreme Court, New York County (Stanley Parness, J.), entered July 10, 1995, which denied petitioner's application to confirm an arbitration award and granted respondent's cross motion to vacate the award, unanimously affirmed, with costs.

We agree with the IAS court that it was “totally irrational” of the arbitrators to find that monies due as a result of mutually agreed upon equity participations by the employee in the employer's investments involving risk of loss constitute “wages” as defined in Labor Law § 190(1) (see, Matter of Dean Witter Reynolds v. Ross, 75 A.D.2d 373, 429 N.Y.S.2d 653), or that the refusal to pay such monies constituted a “deduction” from wages within the meaning of Labor Law § 193 (cf., id.).   Rejection of those findings (see, Hackett v. Milbank, Tweed, Hadley & McCloy, 86 N.Y.2d 146, 155, 630 N.Y.S.2d 274, 654 N.E.2d 95) necessarily requires vacatur of the award of liquidated damages and attorneys' fees under Labor Law § 198(1-a) (see, Gottlieb v. Kenneth D. Laub & Co., 82 N.Y.2d 457, 605 N.Y.S.2d 213, 626 N.E.2d 29).

MEMORANDUM DECISION.