FRANCES v. KLEIN (2024)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered March 19, 2024, which, to the extent appealed from, granted plaintiff's motion for leave to reargue and, upon reargument, vacated so much of an order, same court and Justice, entered on or about March 28, 2023, as granted defendants’ motion for summary judgment dismissing the cause of action seeking damages under Labor Law § 193(1), unanimously modified, on the law, to reinstate so much of the March 28, 2023 order as dismissed the cause of action seeking damages under Labor Law § 193(1), and otherwise affirmed, without costs.

Defendants established their entitlement to summary judgment dismissing plaintiff's Labor Law § 193(1) cause of action, as a wholesale withholding of payment does not constitute a “deduction” within the meaning of Labor Law § 193 (Perella Weinberg Partners LLC v. Kramer, 153 A.D.3d 443, 449, 58 N.Y.S.3d 384 [1st Dept. 2017];  see also Kanthan v. Tagstone Tech., LLC, 224 A.D.3d 593, 593, 206 N.Y.S.3d 285 [1st Dept. 2024];  Vergara v. Mission Capital Advisors, LLC, 200 A.D.3d 484, 485, 155 N.Y.S.3d 68 [1st Dept. 2021]).  Thus, the bonus that plaintiff was negotiating with his employer does not qualify as a nondiscretionary wage defendant failed to pay him.  Moreover, we reject plaintiff's contention that the bonus under negotiation qualified as a term and condition of plaintiff's employment.  On the contrary, plaintiff's employment agreement covered, as part of his job description, the assignment for which he sought additional compensation (cf.  Ryan v. Kellogg Partners Inst. Servs., 19 N.Y.3d 1, 5–7, 16, 945 N.Y.S.2d 593, 968 N.E.2d 947 [2012]).

Although the Legislature amended the statute under the No Wage Theft Loophole Act to provide for “no exception to liability” under § 193 “for the unauthorized failure to pay wages, benefits or wage supplements” (L 2021, ch 397, §§ 2–3, adding Labor Law § 193[5]), the Act does not apply retroactively (see Kanthan, 224 A.D.3d at 593, 206 N.Y.S.3d 285;  Perella Weinberg Partners v. Kramer, 226 A.D.3d 523, 524, 208 N.Y.S.3d 597 [1st Dept. 2024]).  Plaintiff also has no separate claim under Labor Law § 198, as that statute simply provides the remedies available to an employee who prevails under a substantive provision of Labor Law article 6 (see Kanthan, 224 A.D.3d at 593, 206 N.Y.S.3d 285).

We have considered plaintiff's remaining contentions and find them unavailing.