Petitioner WILLIAM MATTAR, P.C. (hereinafter referred to as "Mattar" or "petitioner") filed a Notice of Petition seeking attorney's fees with respect to the total recovery of $100,000 that settled the bodily injury claim of plaintiff Cecilia Sobiegraj. On September 20, 2019 after the Sobiegraj case settled, but before plaintiff reviewed and executed releases and closing documents, the respondent, BRIDGET RILEY (hereinafter "Riley" or "respondent"), an attorney at the Mattar firm, was terminated. A few days later Sobiegraj discharged Mattar and retained Riley. Mattar's petition claimed a lien on the attorney's fee from the Sobiegraj settlement. Riley filed an answer to the petition that included counterclaims alleging breach of contract, quantum meruit, and New York Labor Law violations seeking $29,300 in earned bonus wages she claims Mattar wrongfully withheld. Riley's counterclaims seek $29,300 in unpaid bonuses in 2019 pursuant to the "Employee Bonus Eligibility for 2019 (Plan Option One) For Bridget Riley [*2]("Employee")" (hereinafter referred to as the "2019 Plan" and/or the "contract").^[FN1]

The monies at dispute in the counterclaims are separate and apart from the Sobiegraj proceeds.^[FN2]

PROCEDURAL POSTURE:

Counsel appeared for their initial oral argument on the various legal issues raised in the petition and counterclaims on August 16, 2023 at which time, on stipulation, the attorneys agreed with permission of the court to file motions for summary judgment on the disputed counterclaim issues. Both parties then filed their motions seeking dispositive relief and the court heard oral argument on October 18, 2023. Richard T. Sullivan, Esq. appeared on behalf of Mattar and Peter A. Sahasrabudhe, Esq. appeared on behalf of Riley. The court reserved on the contractual issues and ordered a hearing on the fees issue that eventually settled out-of-court (see footnote 1). What remains for this court to resolve are the summary judgment motions of both parties seeking to resolve Riley's counterclaim as a matter of law.

The court has reviewed the following submissions by the parties:

Mattar's submissions:

• Mattar's Notice of Petition and Verified Petition sworn to on May 17, 2022;

• Mattar's Notice of Motion seeking summary judgment dismissing the respondent's counterclaims dated September 21, 2023;

• Affidavit of F. David Rusin, Esq., sworn to on September 20, 2023;

• Mattar's Memorandum of Law filed September 21, 2023;

• Reply Affidavit of F. David Rusin, Esq., sworn to on October 2, 2023; and

• Mattar's Reply Memorandum of Law filed October 3, 2023.

Riley's submissions:

• Riley's Verified Answer with Counterclaims dated December 6, 2022;

• Riley's Notice of Motion for Summary Judgment on Counterclaims dated September 21, 2023;

• Affidavit of Bridget Riley in Support of Counterclaims with attached exhibits sworn to on September 21, 2023;

• Riley's Memorandum of Law in Support of Counterclaims dated September 21, 2023;

• Riley's Statement of Material Undisputed Facts dated September 22, 2023;

• Affidavit of Bridget Riley in Opposition to William Mattar's Motion for Summary [*3]Judgment sworn to on October 3, 2023; and

• Riley's Memorandum of Law in Opposition to William Mattar's Motion for summary judgment dated October 3, 2023.

Upon review of the written submissions as well as counsels' oral arguments, the court reaches the following decision.

This court must now determine the issues related to the contract and the alleged unpaid bonuses from 2019.

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320, 324, 508 NYS2d 923 [1986]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact (S.J. Capelin Assoc. v Globe Manufacturing Corp. 34 NY2d 338, 340, 357 NYS2d 478 [1974]). To defeat a motion for summary judgment, the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact, and importantly mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562, 427 NYS2d 595 [1980]). All three causes of action in the counterclaims will be addressed separately below.

Breach of Contract:

Mattar takes the straightforward legal position that the clear and unequivocal terms of the contract must be enforced. As a result the entire counterclaim and all causes of action contained therein should be dismissed. Mattar says the contract is clear, there are no factual issues, and the matter is ripe for the court to decide as a matter of law. Relying primarily on Truelove v Northeast Capital & Advisory, Inc. (95 NY2d 220 [2000]), O'Grady v BlueCrest Capital Management LP (111 FSupp3d 494 [SDNY 2015]), and Tierny v Capricorn Investors, L.P. (189 AD2d 629 [1st Dept 1993]), Mattar argues there is a binding contract that explicitly states in order for the disputed settlement revenues to be bonus eligible, Riley was required to be an employee of the firm and the subject revenue must have been clear in the Mattar account for 10 days. In short, Mattar says that the disputed bonus fees simply do not qualify based on the plain language of the contract. In O'Grady the court enforced the language of an employment contract that provided the employee would not be eligible to be paid his bonus if he was terminated prior to the payment (see id. at 500-501). O'Grady cited to the New York Court of Appeals in Truelove which found that bonus payments were not due when explicitly predicated on the recipient's continued employment status, therefore plaintiff was not entitled to bonus payments after he resigned (see Truelove, 95 NY2d at 224-225).

Mattar also relies upon Tierney for the proposition that a claim for wages under the Labor Law cannot be maintained if there is no contractual right to the wages.

Riley's own summary judgment motion seeks $28,000 (Riley Aff., at ¶ 45), and technically $56,000 when considering the double indemnity claim. Riley's position on the law is that the bonus payments were not "discretionary," but rather a significant part of her compensation package that was tied to work she actually performed and results she personally procured, therefore these monies are non-discretionary wages that cannot be withheld once [*4]earned. Riley asserts that the contractual language at the heart of this dispute is not legally enforceable because it is against the public policy of the State of New York in that it denies her the right to earned wages. Riley sought to distinguish the case of Truelove with Kolchins v Evolution Mkts., Inc. (31 NY3d 100, 109 [2018]) a Court of Appeals case issued 18 years after Truelove that stands for the proposition that while as a general matter an employee's entitlement to a bonus is governed by the terms of a bonus plan, the New York Labor Law prohibits employers from deducting earned "wages" which have been broadly defined "regardless of whether the amount of earnings is determined on a time, piece, commission or other basis" (Kolchins, 31 NY3d at 109; Labor Law §§ 190(1), 193(1)) (internal citations omitted).

Riley also relied upon and directed this court to Guggenheimer v Bernstein Litowitz Berger & Grossman, LLP (11 Misc 3d 926, 931 [Sup Ct, New York County 2006]) which held that when bonus compensation takes the form of non-discretionary wages, an employer cannot withhold such monies after they are earned by the employee (internal citations omitted) (see also Simpson v Lakeside Engineering, 26 AD3d 882, 883 [4th Dept 2006]) (holding when a bonus that is an integral part of a compensation package has been earned before the employer decides not to pay, the employer cannot argue the bonus is discretionary and the failure to then pay is a breach of the employment contract).

The parties have essentially agreed there are no factual issues that are contested at this stage regarding the bonus plan, at least not of a material nature, and all parties look to the court to resolve the outstanding issues as a matter of law.

The rule the Court of Appeals set forth in Kolchins, which this court is obligated to follow, states quite clearly that a contractual provision that denies an employee a non-discretionary bonus after the payment has been earned is void as against public policy (see Kolchins, 31 NY3d at 109-110).

The Riley Affidavit at paragraphs 15 to 34 sets forth the uncontested proof that Riley was the sole attorney responsible at Mattar for working on and settling cases that resulted in legal fees totaling $212,167 to Mattar, and therefore, at 10%, $21,216 to Riley pursuant to the contract. The parties' arguments differ with respect to the remaining $6,784 Riley seeks (Riley Aff., at ¶¶35-41).^[FN3]

The primary legal argument asserted by Mattar regarding the $21,216 is that the disputed revenue was not "money in the bank" that cleared before Riley left the firm. Moreover, pursuant to the clear and unequivocal terms of the contract, and Riley's failure to challenge the date of the deposits and/or her employment status when the fees became "cleared revenue," Mattar claims entitlement to a dismissal of all counterclaims (Rusin Reply Aff., at ¶¶ 8-14).

Riley made out a prima facie showing of entitlement to judgment as a matter of law that earned wages were withheld, and Mattar failed to raise an issue of fact in response (see Kolchins, 31 NY3d 109-110). Mattar failed to meet its initial burden on its summary judgment motion. Therefore, as relates to the $21,216, Riley is entitled to summary judgment as a matter of law. As for the remaining $6,784, neither party met its initial burden under the breach of contract cause of action, and even if they did there were triable issues of fact raised in response. As such, neither party is entitled to summary judgment relief for the remaining $6,784 pursuant to this [*5]cause of action.

Because the summary judgment rulings on the breach of contract cause of action resolved only $21,216 in disputed monies as a matter of law, the remaining $6,784 must be adjudicated, as such the court must proceed to the remaining two causes of action in the counterclaims.

Quantum Meruit:

While the summary judgment rulings above resolved $21,216 of the disputed monies, that leaves $6,784 which requires a further and different analysis. Where the theory of quantum meruit is not duplicative of a breach of contract cause of action, therefore not barred by the existence of a valid and enforceable contract, the cause of action can proceed (c.f. Leo J Roth Corp. v Trademark Dev Co., Inc., 90 AD3d 1579, 1581 [4th Dept 2011]) (see also Villnave Construction Services, Inc. v Crossgates Mall General Company Newco, LLC, 201 AD3d 1183, 1185 [3rd Dept 2022]) (holding where the existence of the contract is in dispute, the plaintiff may allege causes of action to recover for quantum meruit as alternatives to a cause of action alleging breach of contract, and although a party may not recover under both contract and quasi contract theories, a party may allege such theories alternatively — even to the point of submitting both to the jury — and recover under quantum meruit or unjust enrichment if he or she "fails to establish the right to recover upon an express contract") (internal citations omitted).

Riley failed to establish her right to bonus fees of up to $6,784 upon a contract as set forth above, therefore quantum meruit is a legally cognizable claim here as relates to that amount. Because neither party met its initial burden, and even if they did there are triable issues of fact raised in response, neither party is entitled to summary judgment relief under the quantum meruit cause of action.

New York Labor Law:

This court has reviewed both parties' arguments pertaining to the New York State Labor Law including Zinno v Frank J. Schlehr, M.D., P.C. (175 AD3d 843 [4th Dept 2019]) submitted by Riley, and Tierny v Capricorn Investors, L.P. (189 AD2d 629 [1st Dept 1993]) submitted by Mattar. With respect to the $21,176 that this court determined to be earned wages above, Riley is entitled to summary judgment on liability under the Labor Law granting reasonable attorney's fees and pre-judgment interest.^[FN4] With respect to the remaining $6,784 that this court has not ruled dispositively upon, neither party met its initial burden under the Labor Law and even if they did the responding party raised triable issues of fact. In short, this remaining portion of the disputed monies was not summarily determined to be earned wages, so the court cannot act further under this cause of action at this time. All of the same facts presented to the court were sought to be applied to all three causes of action in the counterclaims, therefore absent anything beyond what has been presented to the court neither party has established entitlement to relief related to the remaining $6,784. Riley's Labor Law cause of action survives with respect to the remaining $6,784 regarding reasonable attorney's fees and pre-judgment interest.

Finally, Riley has failed to establish prima facie entitlement to liquidated damages under the Labor Law, and she has also failed to raise an issue of fact after Mattar met its burden dismissing any such claim based on its good faith basis to withhold the wages.

Therefore, any claim under the Labor Law for liquidated damages is summarily [*6]dismissed

Accordingly, it is hereby:

ORDERED, that Mattar's motion is granted in part and denied in part, and it is further,

ORDERED, that Mattar's summary judgment motion seeking to dismiss the counterclaims is granted to the extent it seeks dismissal of the liquidated damages claim under the New York State Labor Law, and its motion is otherwise denied in all other respects as set forth and consistent with the above decision, and it is further,

ORDERED, that Riley's motion is granted in part and denied in part, and it is further,

ORDERED, that Riley is entitled to $21,216 under the breach of contract cause of action as well as reasonable attorney's fees and pre-judgment interest pursuant to the New York Labor Law cause of action, and her motion is otherwise denied in all other respects as set forth and consistent with the above decision, and it is further,

ORDERED, that counsel for the parties are directed to appear for a status conference before the court via Teams on March 1, 2024 at 11:00 a.m. to discuss further and remaining proceedings, and it is further,

ORDERED, that this shall constitute the decision and order of the court, and no further order is required. The delivery of a copy of this decision and order by this court shall not constitute notice of entry.