DUFFY v. RMSCO INC (2006)

Supreme Court, Appellate Division, Fourth Department, New York.

Brian DUFFY, Plaintiff-Appellant, v. RMSCO, INC., Defendant-Respondent.

Decided: November 17, 2006

PRESENT: SCUDDER, J.P., MARTOCHE, CENTRA, AND PINE, JJ.

Hancock & Estabrook, LLP, Syracuse (Sonya G. Bonneau of Counsel), for Plaintiff-Appellant. Bond, Schoeneck & King, PLLC, Syracuse (Patrick V. Melfi of Counsel), for Defendant-Respondent.

Plaintiff commenced this Labor Law article 6 action seeking to recover a sales director bonus that allegedly constituted “a ‘wage’ as said term is defined in [Labor Law] § 190(1).” We conclude that Supreme Court properly granted defendant's motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ). The terms of the bonus plan conclusively establish that the bonus was “dependent, at least in part, on the financial success of [defendant],” and the bonus therefore did not constitute a wage within the meaning of Labor Law § 190(1) (Truelove v. Northeast Capital & Advisory, 95 N.Y.2d 220, 224, 715 N.Y.S.2d 366, 738 N.E.2d 770; see Guiry v. Goldman, Sachs & Co., 31 A.D.3d 70, 71, 814 N.Y.S.2d 617).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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