Beach v. Touradji Capital Management, LP — 128 A.D.3d 501

Majority

p. 501

Gentry T. Beach et al., Appellants, v Touradji Capital Management, LP, et al., Respondents.

[7 NYS3d 895]

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.),

p. 502

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.

Cases cited

Beach v. Touradji Capital Management L.P. 85 AD3d 674 N.Y. App. Div. 2011-06-30 p. 502
Moses v. Savedoff 96 AD3d 466 N.Y. App. Div. 2012-06-07 at 468 p. 502
Truelove v. Northeast Capital & Advisory, Inc. 95 NY2d 220 N.Y. 2000-10-17 p. 502
Guiry v. Goldman 31 AD3d 70 N.Y. App. Div. 2006-05-18 at 73 p. 502

Statutes and regulations cited

Labor Law p. 502