JULIET E. ORGILL plfres, v. INGERSOLL-RAND COMPANY def-ap

10862-10863. JULIET E. ORGILL plfres, v. INGERSOLL-RAND COMPANY def-ap — Epstein Becker & Green, P.C., New York (Sheila A. Woolson of counsel), for ap — The Ottinger Firm, P.C., New York (Denise Rubin Glatter of counsel), for res — Orders, Supreme Court, New York County (Debra A. James, J.), entered March 8, 2013, which, respectively, denied defendants' motion for summary judgment dismissing the complaint, and granted plaintiffs' motion for class certification, unanimously affirmed, without costs.

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10862-10863. JULIET E. ORGILL plfres, v. INGERSOLL-RAND COMPANY def-ap — Epstein Becker & Green, P.C., New York (Sheila A. Woolson of counsel), for ap — The Ottinger Firm, P.C., New York (Denise Rubin Glatter of counsel), for res — Orders, Supreme Court, New York County (Debra A. James, J.), entered March 8, 2013, which, respectively, denied defendants’ motion for summary judgment dismissing the complaint, and granted plaintiffs’ motion for class certification, unanimously affirmed, without costs.

The record does not conclusively demonstrate whether the “Shared General Expense” (SGE) that was deducted from certain employees’ total compensation was, as defendants argue, part of the calculation of the employees’ commissions or, as plaintiffs argue, a deduction from wages in violation of Labor Law §193. While defendants’ arguments presume that the SGE deduction was part of the commission calculation, defendants proved neither that contention nor, in the admitted absence of an express agreement as to when commissions were earned and became wages, the contention that plaintiffs impliedly agreed to the deduction (see Pachter v. Bernard Hodes Group, Inc., 10 NY3d 609, 616-617 [2008]; Cuervo v. Opera Solutions LLC, 87 AD3d 426 [1st Dept 2011]). Indeed, the record pages to which defendants themselves cite show that, until mid-July 2008, plaintiffs did not properly understand the purpose of the deduction, believing it to be a set-off for defendants’ matching contributions to the employee benefits system. Only when defendants stopped matching contributions, and plaintiffs inquired, did defendants advise that the SGE was not a deduction from gross commissions but a part of the calculation itself. Moreover, the commission reports issued by defendants throughout the relevant period reflect that the commissions were earned before the SGE was deducted.

JULIET E. ORGILL plfres, v. INGERSOLL-RAND COMPANY def-ap

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