D'Amato v. Morgan Stanley Dean Witter Discover & Co.

—Order, Supreme Court, New York County (Charles Ramos, J.), entered February 22, 1999, which, in an action to recover a bonus, granted defendants employers’ motion to dismiss the complaint on the basis of documentary evidence, unanimously affirmed, without costs.

The action was properly dismissed on the ground that the “Productivity Compensation Plan” that plaintiff claims defendants breached clearly provides that, as an incentive to “retain and recruit key Account Executives”, payment of any “award” is to be deferred for five years and forfeited if, as occurred here, the employee was no longer employed by defendants at the end of such five-year period (see, Hall v United Parcel Serv., 76 NY2d 27 , 36-37; Zolotar v New York Life Ins. Co., 172 AD2d 27 , 32). There is no merit to plaintiffs claim that the award he seeks to recover constitutes “wages” within the meaning of Labor Law § 190 (1) that cannot be forfeited (see, Matter of Dean Witter Reynolds v Ross, 75 AD2d 373 , 381). Concur—Nardelli, J. P., Ellerin, Saxe and Buckley, JJ.