Beach v. Touradji Capital Management, LP

128 A.D.3d 501, 7 N.Y.S.3d 895

Opinion

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]). Concur — Friedman, J.P., Saxe, Richter and Manzanet-Daniels, JJ.