Fieldman v Smart Choice Communications, LLC

Fieldman v Smart Choice Communications, LLC 2007 NY Slip Op 05642 [41 AD3d 343] June 28, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Lance Fieldman, Appellant,
v
Smart Choice Communications, LLC, et al., Respondents.

—[*1] Barton Barton & Plotkin LLP, New York (Kyle C. Bisceglie of counsel), for appellant.

Jackson Lewis LLP, New York (John A. Snyder, II of counsel), for respondents.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 30, 2006, which, in an action to recover unpaid sales commissions, granted defendants' motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss plaintiff's second and third causes of action alleging violations of Labor Law § 191 (1) (c) and seeking damages under Labor Law § 198 (1-a), unanimously affirmed, without costs.

Plaintiff's first cause of action alleges a failure to pay commissions as required by his written employment contract with defendant LLC, a New York corporation with its principal place of business in New York City. The second cause of action invokes the Labor Law against the LLC, and the third invokes it against the LLC's principals. Neither cause of action, however, asserts an extracontractual wrong, such as payment of commissions in accordance with the contract but in violation of section 191 (1) (c) because made less frequently than once a month. Accordingly, we reject plaintiff's argument that the broad New Jersey choice-of-law clause contained in the contract does not encompass his Labor Law claims (cf. Knieriemen v Bache Halsey Stuart Shields, 74 AD2d 290, 293 [1980], appeal dismissed 50 NY2d 1021 [1980], 51 NY2d 970 [1980] [tort cause of action not covered by contractual choice-of-law clause], overruled on other grounds by Rescildo v Macy's, 187 AD2d 112, 117 [1993]; Finance One Pub. Co. Ltd. v Lehman Bros. Special Fin., Inc., 414 F3d 325, 334-335 [2d Cir 2005]). Concur—Tom, J.P., Andrias, Sweeny, McGuire and Kavanagh, JJ. [See 2006 NY Slip Op 30191(U).]