Kevin B. Connolly, Plaintiff,
IsoSpace, Inc. f/k/a LIQ, INC., Defendant.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff was represented by Gallet Dreyer & Berkey, LLP, David T. Azrin, Esq.
Defendant was represented by Howrey LLP, James G. McCarney, Esq.
Herman Cahn, J.
This is an action to recover $149,192.23 in unpaid wages, and a declaratory judgment that plaintiff owns and is entitled to exercise certain stock options.
Defendant now moves to dismiss the complaint on the grounds of a defense founded upon documentary evidence and failure to state a cause of action, CPLR 3211 (a) (1) and (7).
On December 7, 1999, plaintiff Kevin Connolly entered into an employment agreement (the Employment Agreement) with LiQ, Inc., a computer software company which later became known as IsoSpace, Inc. (LiQ, Inc. and/or IsoSpace, Inc., hereinafter, IsoSpace). The Employment Agreement provided that Connolly would be paid an annual salary of $125,000.00, and would have the right to participate in IsoSpace's stock option plan. The agreement further provided that Connolly's employment would be for an initial term of one year, and would automatically be renewed for successive one-year periods unless either party gave the other party written notice of non-renewal more than 30 days prior to the end of any such period or term.
At some point, IsoSpace allegedly ceased paying Connolly his salary and, by letter dated January 2, 2003, he resigned from his position with the company. Connolly alleges that IsoSpace owes him $149,192.23 in unpaid salary under the Employment Agreement, and that IsoSpace has expressed its intention to refuse to honor any attempt by him to exercise options which it granted to him to acquire 255,000 shares of IsoSpace common stock. As originally filed, the complaint contained three causes of action for: (1) breach of contract, seeking compensatory damages of $149,192.23 in unpaid wages and the value of the Stock options allegedly owned by Connolly; (2) violations of sections 190 (1) (d) and 193 of article 6 of the Labor Law (Article 6), seeking compensatory damages of $149,192.23 and, under section 198 (1-a) of Article 6, for liquidated damages and attorney's fees; and (3) judgment declaring that Connolly owns and may exercise options to acquire 255,000 shares of Stock. With his papers in opposition to the instant motion, Connolly served an amended complaint (the Complaint), as of right, which withdraws the claim under Labor Law 190 (1) (d), but is otherwise substantially the same as the original complaint.
As a preliminary matter, IsoSpace argues that the court should disregard the papers submitted by Connolly in opposition to the instant motion, because those papers were not timely served. In view of the minimal duration of the claimed delay, and the absence of any indication of prejudice, IsoSpace has not established that the extreme sanction of disregarding Connolly's opposition papers is warranted.
The motion to dismiss is granted, in part, to the extent that the Complaint's second cause of action is dismissed. The second cause of action, as amended, alleges that IsoSpace's withholding of Connolly's salary constituted an illegal deduction from the wages of an employee, in violation of Labor Law 193, and that Connolly is entitled to recover $149,192.23 in compensatory damages for unpaid wages. The claim further asserts ...