WESTHEIM v. ELKAY INDUSTRIES, INC

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.