Summary
distinguishing Gottlieb by finding that plaintiff, although previously an executive, was a salesman or consultant at the time of his termination and thus covered by article 6
Summary of this case from Rice v. Scudder Kemper Investments, Inc.Opinion
April 16, 1996
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The jury verdict finding that defendants had breached the parties' employment agreement by terminating plaintiff as an employee before he had resigned of his own volition as an officer and member of the Board of Directors and by unilaterally refusing to pay plaintiff's salary and provide medical benefits in accordance with the terms of the agreement should not be disturbed on appeal. The record reveals that the jurors properly found that plaintiff is entitled to his salary through May 31, 1989, with benefits and interest, since the employment agreement drafted by the defendants is clear, unequivocal and a complete expression of the rights and liabilities of the parties.
Plaintiff was properly awarded a portion of the legal fees he incurred in connection with his attempts to secure payment of his wages from defendants pursuant to Labor Law § 198 (1-a) ( see, Clean Rental Servs. v. Karten, 146 A.D.2d 462, 464; Maggione v Bero Constr. Corp., 106 Misc.2d 384, 387). The decision of the Court of Appeals in Gottlieb v. Laub Co. ( 82 N.Y.2d 457 ), holding that the salary claim of an executive is not within the purview of Labor Law § 198 by reason of its exclusion from article 6 of the Labor Law, is distinguishable. Here, the record reveals that at the time that plaintiff was discharged by defendants he was no longer employed in an "executive, managerial or administrative" capacity, but rather was a salaried salesman or consultant ( supra, at 461).
The trial court did err, however, in setting aside that portion of the jury verdict finding that the defendants' conduct in unilaterally ceasing and refusing to pay plaintiff's wages was willful, thereby entitling plaintiff to liquidated damages of 25% of his unpaid wages pursuant to section 198 (1-a) ( see, Magness v. Human Resource Servs., 161 A.D.2d 418; P L Group v Garfinkel, 150 A.D.2d 663).
Concur — Rosenberger, J.P., Rubin, Nardelli and Tom, JJ.