# Dean Witter Reynolds Inc. v. Ross

> Appellate Division of the Supreme Court of the State of New York · June 26, 1980 · 75 A.D.2d 373

URL: https://www.frixlaw.com/law-library/cases/5839027

## Case

- **Full name:** In the Matter of Dean Witter Reynolds Inc. v. Philip Ross, as Industrial Commissioner of the State of New York
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** June 26, 1980
- **Citations:** 75 A.D.2d 373; 429 N.Y.S.2d 653; 1980 N.Y. App. Div. LEXIS 11248
- **Precedential status:** Published
- **Opinion:** Dissent by Silverman
- **Judges:** Birns, Silverman
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5839027

## How later opinions describe it (automated extraction)

- holding that “Costello had no vested interest in the additional compensation until the end of the production period, when all appropriate adjustments were made in conformity with the incentive production plan”
- finding that incentive pay that depended on the overall output of department did not constitute a “wage”; incentive pay is not a “wage” until it is actually earned and vested
- holding that employee does not acquire a vested right to payments until after adjustments or conditions have been met pursuant to the terms of the agreed-to bonus plan
- holding that an incentive plan tying an employee’s bonus to the overall output rate of the department falls outside the purview of Section 190(1)

## Opinion text

Silverman, J. (dissenting).
I would confirm the determination of the Industrial Board of Appeals, Department of Labor.
The case presents questions of whether the type of employee here involved falls within the category of those entitled to be protected by section 193 of the Labor Law, and whether the deductions made by the employer are of the type forbidden by section 193 of the Labor Law or whether they are merely a permissible step in the calculation of incentive compensation such as might be appropriate if, for example, the employee were entitled to a percentage of net profits from certain customers. On both aspects of the case, the statute and its definitions are certainly broad enough to support thé Industrial Board’s determination. At most what is involved is drawing a line to exclude the kinds of situations which do not violate the general spirit and intent of the statute, notwithstanding the broad language of the statute, and to include the situations and practices which should be forbidden. Such a drawing of a line in arguable situations is pre-eminently the task of the administrative agency to which the administration of the law is confided. I cannot say that the determination of the administrative agency in this case is without rational basis.
Murphy, P. J., Kupferman and Ross, JJ., concur with Birns, J.; Silverman, J., dissents in an opinion. *383 bursements, and the matter remanded to the Industrial Board of Appeals for further proceedings not inconsistent with the opinion of this court. The application of the Association of Investment Brokers for leave to file a brief as amicus curiae is granted.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5839027. Public record. Not legal advice.