General
Gentry T. Beach et al., Appellants, v. Touradji Capital Management, LP, et al., Respondents
128 A.D.3d 5017 N.Y.S.3d 895·New York Supreme Court, Appellate Division·2015·NY
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Opinion
Gentry T. Beach et al., Appellants, v Touradji Capital Management, LP, et al., Respondents.
[7 NYS3d 895]
[MAJORITY]
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), 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.