Beach v Touradji Capital Mgt., LP

Beach v Touradji Capital Mgt., LP 2015 NY Slip Op 04218 Decided on May 14, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2015
Friedman, J.P., Saxe, Richter, Manzanet-Daniels, JJ.
15123 603611/08

[*1] Gentry T. Beach, et al., Plaintiffs-Appellants,

v

Touradji Capital Management, LP, et al., Defendants-Respondents.

Liddle & Robinson, L.L.P., New York (David I. Greenberger of counsel), for appellants.

O'Brien LLP, New York (Sean R. O'Brien of counsel), for respondents.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 3, 2014, which granted defendants' motion for summary judgment dismissing plaintiffs' second cause of action alleging violations of article 6 of the Labor Law, unanimously affirmed, without costs.

The fact that the Labor Law claim was previously reinstated by this Court after having been dismissed by Supreme Court on a pre-answer motion to dismiss (85 AD3d 674 [1st Dept 2011]), does not preclude our review of it on this motion for summary judgment (Moses v Savedoff, 96 AD3d 466, 468 [1st Dept 2012] ["the law of the case doctrine does not apply when a motion to dismiss is followed by a summary judgment motion"]).

Dismissal of the Labor Law claim was warranted since plaintiffs' unpaid extra compensation does not constitute "wages" under Labor Law § 190(1). Such compensation depended on factors other than their personal productivity, including the efforts of defendant Paul Touradji and a team of analysts (see Truelove v Northeast Capital & Advisory, 95 NY2d 220 [2000]; Guiry v Goldman, Sachs & Co., 31 AD3d 70, 73 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK