CHILD SUPPORT AND INCARCERATION

There are limits to the court's power.

Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Decided on June 24, 2020 ,Appellate Division, Second Department:

"We agree with the Family Court's determination in an order of disposition dated May 31, 2019 (hereinafter the May 2019 order), after a hearing on May 8, 2019, that the father willfully violated an order of child support dated December 21, 2015. At the hearing, the mother demonstrated that the father willfully violated his support obligations set forth in the child support order (see Family Ct Act § 454[3][a]; Matter of Martinez v Martinez, 44 AD3d 945, 946). In opposition, the father failed to show an inability to pay the support owed (see Matter of Martinez v Martinez, 44 AD3d at 946).

We disagree, however, with the Family Court's imposition of a sentence of incarceration upon its finding of willfulness since the parties agreed at the hearing that the father had paid the full amount due and owing. Although the court is empowered to impose a sentence of incarceration of up to six months for willful failure to comply with a support order (see Family Ct Act § 454[3][a]; Matter of Cox v Cox, 133 AD2d 828), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d 568, 568-569). Here, the court sentenced the father to a period of incarceration of 40 days, to be suspended under certain conditions, after the parties already had agreed that the father had paid all that was due and owing at that time. Under such circumstances, no period of incarceration should have been imposed (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d at 568-569). Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the May 2019 order must be deleted."

FAILURE TO PAY ADDITIONAL COMPENSATION IS AN IMPROPER DEDUCTION FROM WAGES

ZINNO v. SCHLEHR, 2019 NY Slip Op 6232 - NY: Appellate Div., 4th Dept. 2019:

Plaintiff, a former employee of defendant medical group, commenced this action seeking to recover, inter alia, "additional compensation" that he earned during his employment with defendant. Pursuant to the terms of his employment agreement, plaintiff was entitled to receive an annual salary plus certain "additional compensation" if he exceeded certain thresholds, which were calculated based on the actual gross receipts attributable to plaintiff for services he rendered during his employment with defendant, including receipts received within 90 days following any termination of his employment.

After his employment with defendant terminated, plaintiff became entitled to additional compensation, which defendant was required to pay to plaintiff by June 21, 2016. Although defendant paid plaintiff in part, defendant admitted that it failed to pay plaintiff the entire amount owed for additional compensation. Plaintiff commenced this action asserting, inter alia, a cause of action for violations of Labor Law § 193(1) and alleging that, pursuant to Labor Law § 198(1-a), defendant is liable for the unpaid additional compensation, liquidated damages, interest, and attorneys' fees. Plaintiff moved for partial summary judgment on liability with respect to that cause of action, and Supreme Court denied the motion.

We agree with plaintiff that the court erred in denying his motion with respect to the issue of liability under Labor Law § 193(1), and we therefore modify the order accordingly. There is no dispute that the additional compensation owed to plaintiff constituted earned "wages" that were "vested and mandatory as opposed to discretionary and forfeitable" (Truelove v Northeast Capital & Advisory, 268 AD2d 648, 649 [3d Dept 2000], affd 95 NY2d 220 [2000]; see Labor Law § 190 [1]; see also Doolittle v Nixon Peabody LLP, 126 AD3d 1519, 1520 [4th Dept 2015]), and we conclude that defendant's failure to pay plaintiff by June 21, 2016 the full amount of the additional compensation that plaintiff had earned, as required by the parties' agreement, constituted a deduction from wages in violation of Labor Law § 193(1) (cf. Perella Weinberg Partners LLC v Kramer, 153 AD3d 443, 449-450 [1st Dept 2017]; Miles A. Kletter D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming, 32 AD3d 566, 567 [3d Dept 2006]; see generally Doolittle, 126 AD3d at 1522). Thus, plaintiff met his initial burden of establishing "entitlement to judgment as a matter of law" with respect to that part of his motion (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendant failed to raise material issues of fact whether it violated Labor Law § 193(1) (see generally Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]).

In light of that determination, we further conclude that plaintiff is entitled "to recover the full amount of any underpayment, all reasonable attorney's fees, [and] prejudgment interest" (Labor Law § 198 [1-a]), and we therefore further modify the order accordingly.