Cuervo v. Opera Solutions LLC

87 A.D.3d 426, 928 N.Y.2d 26

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 11, 2011
• Status: Published

Opinions

The court properly dismissed plaintiffs first cause of action alleging violations of Labor Law §§ 191 and 193. While plaintiff was entitled to be paid commissions pursuant to the offer letter, the letter expressly reserved to Opera Solutions the right to modify the commission structure at any time. Accordingly, the reduction of plaintiff’s commissions did not violate the letter contract or Labor Law §§ 191 and 193 (see Pachter v Bernard Hodes Group, Inc., 10 NY3d 609, 618 [2008]; see also Arbeeny v Kennedy Exec. Search, Inc., 71 AD3d 177, 180 [2010]).

Neither plaintiffs factual allegations nor the documentary evidence support plaintiffs assertion that the individual defendants, as opposed to Opera Solutions, were plaintiffs employer within the meaning of Labor Law § 190 (3) (cf. Wing Wong v King Sun Yee, 262 AD2d 254, 255 [1999]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Gonzalez, EJ., Sweeny, Renwick and Richter, JJ.

Moskowitz, J.,