Duffy v RMSCO, Inc.

Duffy v RMSCO, Inc. 2006 NY Slip Op 08472 [34 AD3d 1285] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Brian Duffy, Appellant, v RMSCO, Inc., Respondent.

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Appeal from an order of the Supreme Court, Onondaga County (William R. Roy, J.), entered May 31, 2005. The order, insofar as appealed from, granted defendant's motion to dismiss the complaint.

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

Memorandum: 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 NY2d 220, 224 [2000]; see Guiry v Goldman, Sachs & Co., 31 AD3d 70, 71 [2006]). Present—Scudder, J.P., Martoche, Centra and Pine, JJ.