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Westheim v. Elkay Industries, Inc.

Appellate Division of the Supreme Court of New York, First Department
Oct 23, 1990
166 A.D.2d 318 (N.Y. App. Div. 1990)

Summary

upholding determination that a nondiscretionary bonus plan created by employer guaranteed "wages" under Section 190

Summary of this case from Tischmann v. ITT/Sheraton Corp.

Opinion

October 23, 1990

Appeal from the Supreme Court (Burton S. Sherman, J.).


Plaintiffs were salaried employees of defendant. Beginning in the fall of 1986, in addition to their salaries, plaintiffs were orally promised a bonus equal to 2% of the sales above quota. Despite this, plaintiffs were not paid the full bonus for either the "fall-holiday 1986 season" (the period from July through December 1986) or the "spring-summer 1987 season" (the period from January to June 1987). Plaintiffs voluntarily terminated their employment near the end of the "fall-holiday 1987 season" and commenced this action to recover their bonuses and for attorney's fees.

There was sufficient evidence in the record for the court to find that defendant established a nondiscretionary bonus plan which did not condition receipt of the bonus on remaining employed until the end of a season, and that plaintiffs were entitled to recover the full amount of the bonus owed for the fall-holiday 1987 season equal to 2% of plaintiffs' sales above the quota for the season, plus interest. In addition, we affirm that part of the court's judgment awarding plaintiffs attorney's fees pursuant to Labor Law § 198 (1-a) in an amount equal to plaintiffs' contingency arrangements with their counsel which the court found reasonable. Plaintiffs were "employees" as that term is used in Labor Law § 198 (1-a). Defendant having failed to raise the argument that a "bonus" does not constitute "wages" under the statute, we decline to review this argument on appeal.

Concur — Kupferman, J.P., Asch, Smith and Rubin, JJ.


Summaries of

Westheim v. Elkay Industries, Inc.

Appellate Division of the Supreme Court of New York, First Department
Oct 23, 1990
166 A.D.2d 318 (N.Y. App. Div. 1990)

upholding determination that a nondiscretionary bonus plan created by employer guaranteed "wages" under Section 190

Summary of this case from Tischmann v. ITT/Sheraton Corp.

affirming verdict for plaintiff on claim for bonuses where evidence showed that "defendant established a nondiscretionary bonus plan which did not condition receipt of the bonus on remaining employed until the end of a season"

Summary of this case from Bader v. Wells Fargo Home Mortgage Inc.
Case details for

Westheim v. Elkay Industries, Inc.

Case Details

Full title:JEROME WESTHEIM et al., Appellants, v. ELKAY INDUSTRIES, INC., Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 23, 1990

Citations

166 A.D.2d 318 (N.Y. App. Div. 1990)
560 N.Y.S.2d 779

Citing Cases

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Tischmann v. ITT/Sheraton Corp.

Under New York law, incentive compensation based on factors falling outside the scope of the employee's…