Di Bari v Morellato & Sector USA, Inc.

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Di Bari v Morellato & Sector USA, Inc. 2012 NY Slip Op 32122(U) August 9, 2012 Supreme Court, New York County Docket Number: 0109387/2008 Judge: Jeffrey K. Oing Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 811012012 [* 1] 1 2. SUPREME COURT OF THE STATE OF HEW YQRK JEFFREY K. O PRESENT: - NEW YORK COUNTY M . I Justice . INDEX HO. Index Number : 109387/2008 DI BARI, SEBASTIANO MOTION DATE VB MORELLATO & SECTOR USA Sequence Number : 004 i REARGUMENTlRECONSlDERATlON MOTION GAL. NO. The following pspern, numbered 1 to , ,, were reed on this motlon tolfor Notiae ob Motlon/ Order to Show Cause - Affidavits Anewering Affldavlts - Exhibits - Exhibita .... , Replyleg Aff ldavlts Cbss-Motion: Yes No Upan the foregoing papers, it Is ordorftd thet this motion wotlon Is decided in accordance with the annexed P n i q md order 0 the ' C o l r fib4' ~ FILED NEW YORK COUNTY CLERK'S OFFICE Dated; J.S.C. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL PART 48 X _ l _ _ l _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ l _ _ _ _ _ l SEBASTIANO DI BARI, Plaintiff, Index No.: 109387/08 -again5tMtn S s q . No. 0 0 4 MORELLATO & SECTOR USA, INC. ( f / k / a QUADRANTE, INC.) d/b/a SECTOR GROUP USA AND MORELLATO, S.p.A. (f/k/a SECTOR G R O U P , S . p * A . ) DECISION AND ORDER Defendants. CO #1Iy Plaintiff, m?N Stephano DiBari, moves, pursuant to CPL% %gFmc~ for an order granting reargument of that branch of this Court s decision and order, entered on October 17, 2011, which dismissed plaintiff s third cause of action under Article 6 of the Labor Law. Background Plaintiff is a former Chief Financial Officer and Vice President of defendant Morellato & Sector USA ( Sector USA ). Sector USA is the U . S . subsidiary of co-defendant Morellato S.p.A. ( Morellato ). Morellato is a creator, manufacturer and retailer of jewelry and wristwatches, Sector USA employed plaintiff from February 2004 through February 2007. This action stems from t h a t employment. Plaintiff and defendants entered into an employment contract, dated February 2004 (the employment agreement ) . pursuant to the employment agreement, defendants agreed to, h t e L [* 3] Page 2 of Index No. 109387/08 Mtn Seq. No.004 5 alia, pay plaintiff certain guaranteed bonus payments based on pre-determined targets tied to defendants' annual e a r n i n g s . In or about February of 2007, plaintiff and defendants The parties entered terminated their employment relationship. into a severance agreement, dated February 22, 2007 (the "severance agreement"), which provided that defendants would (1) pay plaintiff a bonus payment for 2006 once budget data to determine correct amount became available, and (2) that defendants would pay plaintiff's legal fees in a then-ongoing arbitration commenced jointly against defendants and plaintiff while plaintiff was still in defendants' employ (the " a rb it rat ion ) I ' Plaintiff commenced this action asserting three causes of action: (1) breach of the severance agreement by failing to pay plaintiff his bonus; (2) breach of the severance agreement by failing to pay plaintiff's defense costs in the arbitration; and (3) violation of Labor Law §§ 190, et Seq. In motion sequence no. 003, DiBari moved for summary judgment on all three causes of action. Upon the conclusion of the May 27, 2011 oral argument, this Court dictated a decision and order on the record, which denied that branch of the motion with respect to the first cause of action, and granted that branch of the motion concerning the second of action on the issue of liability, leaving the amount of damages to be determined at trial. Although defendants did not cross-move for summary judgment for an order dismissing plaintiff's third cause of [* 4] ' L Index No. 109387/08 Mtn S e q . No. 004 Page 3 of 5 action, this Court searched the record ( C P L R 3212(b)) and dismissed plaintiff's third cause of action alleging violation of [* 5] Page 4 of Index No. 109387/08 M t n S e q . No.004 5 Section 193 provides that an employer shall not make any deduction from the wage of an employee, , except as expressly permitted in that section. Critically, section 193 does not exclude executives from protection, unlike, e.q., section 198-c ( F a c h t e L , supra, 10 NY3d at 616). Additionally, a bonus payment that is already due and vested may constitute a wage under the labor statute (Ryan v K e J l o q q P a r t n e r s Institutjnnal S e r v s . , 19 NY3d 1, 16 [2012]). Here, in light of the fact t h a t plaintiff s 2006 bonus was non-discretionary and guaranteed as a condition of his employment, the bonus was earned and vested before h e left his position with Sector USA. Accordingly, plaintiff is not precluded by virtue of his position as an executive from asserting a section 193 claim for non-payment of his guaranteed bonus. Accordingly, plaintiff s motion for reargument is granted, and upon reconsideration, plaintiff s third cause of a c t i o n f o r violation of 5 193 is hereby reinstated. Accordingly, it is ORDERED that the motion of plaintiff for leave to reargue its motion for summary judgment is granted; and it is further ORDERED that, upon reargument, the Court vacates that branch of the prior order, entered October 17, 2011, as it concerns plaintiff s t h i r d cause of action only, a n d it is further [* 6] Page 5 of Index No. 109387/08 Mtn Seq. No. 0 0 4 ORDERED that plaintiff's 5 third cause of action for violation of Article 6 of t h e Labor Law, Section 193, is reinstated; and it is further ORDERED that the parties are directed to contact Part 48 at 646-386-3265 to schedule a status conference within 20 days of service of a c o p y of this decision, with notice of entry, upon defendants. This memorandum opinion constitutes the decision and order of the Court. .I HON. J E F F R E Y K. OING, J . S . C . JEFFREY K. 0Ip;cj -L..,. FILED NEW YORK COUNW CLERK'S OFFICE J.s;C.

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