Opinion
September 23, 1997
Appeal from Supreme Court, New York County (Herman Cahn, J.).
In this action by a sales representative to recover allegedly earned compensation from her former employer, the IAS Court properly eschewed reliance on the labelling of certain items of compensation in defendant's compensation plan documents as "bonuses" in favor of a determination based upon whether or not the compensation was discretionary and forfeitable as opposed to vested and mandatory ( see, Mirchel v. RMJ Sec. Corp., 205 A.D.2d 388), but erred in its factual finding that the "monthly quota multiplier bonus" was a bonus. In this regard, we find an issue of fact in light of the mandatory language in defendant's compensation documents stating that, upon the fulfillment of certain conditions, a sales representative "will" receive such payment and that the employee's commission "shall" be increased; the reference to such payment as an increase to a "commission", which is generally viewed as earned non-forfeitable compensation, as well as the fact that defendant drafted the governing documents ( see, Tuttle v. McQuesten Co., 227 A.D.2d 754), lend further support to the conclusion that the IAS Court improperly resolved an issue of fact.
Contrary to the IAS Court's determination, the breach of contract cause of action is viable. Rather than consider the illegal contract as void in toto, the better view is to sever the offending provision and validate the basic agreement; under this approach, there is a cause of action for breach of the valid remainder of the contract.
The cause of action for breach of the implied covenant of good faith and fair dealing was properly dismissed because the allegations merely duplicate the breach of contract cause of action.
We need not determine whether defendant's failure to respond to plaintiff's request for information concerning the calculation of her compensation gives rise to a private right of action under Labor Law § 191 (1) (c) and § 195 (3), since plaintiff improperly seeks punitive damages unsupported by a request for compensatory damages or any other relief ( see, Rocanova v Equitable Life Assur. Socy., 83 N.Y.2d 603, 616-617, and, in any event, does not allege facts evincing the gross, morally reprehensible or wantonly dishonest conduct necessary to support a claim for punitive damages ( see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315-316).
Class certification was properly denied pursuant to CPLR 901 (b) on the authority of Carter v. Frito-Lay, Inc. ( 74 A.D.2d 550, aff'd 52 N.Y.2d 994), the IAS Court correctly rejecting plaintiff's argument that this Court's ruling in Carter was overruled by subsequent authority in other Departments dealing with a different statute.
In view of the foregoing, it is unnecessary to reach plaintiff's arguments concerning the scope of the class. Defendant's cross appeal from the order denying certification must be dismissed since defendant is not aggrieved ( Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539, 545).
Concur — Sullivan, J.P., Ellerin, Nardelli, Williams and Andrias, JJ.