Defendant moves to dismiss the first and third causes of action contained in the Endorsed Complaint on the basis that the defense is founded upon documentary evidence (CPLR §3211[a][1]). Alternatively, if the causes of action are not dismissed defendant seeks an Order transferring this matter to the New York State Supreme Court alleging that the addamnum clause of the Endorsed Complaint exceeds the $25,000 jurisdictional monetary limit of the Civil Court.The Endorsed Complaint sets forth three causes of action. The first and third causes of action allege that defendant failed to pay compensation of $16,572.50 for the year 2002 (first cause of action) and $2,500 or more for the year 2003 (third cause of action) and the second cause of action seeks $6,538.46 for the period February 15, 2003 through February 28, 2003 as vacation pay.Plaintiff, an attorney, was a former partner of defendant, which is a law firm.On July 2, 2001, the parties entered into an agreement whereby plaintiff was hired as a contract partner by defendant. The agreement sets forth the terms of the employment and compensation to be paid thereunder. Plaintiff voluntarily terminated his employment with defendant on January 31, 2003.Paragraph 3 of the agreement provides as follows: 3. Manning shall receive 5 percent of gross receipts of fees collected by the Firm relating to clients originated by Manning (“additional compensation”).For the purpose of calculating additional compensation: the term “originated” will mean any client whom Manning brings to the Firm during the term thereof as determined by the Equity Partners of the Firm; and the term “gross receipts” will mean all money collected by the Firm from clients originated by Manning from professional services rendered including, without limitation, all fees, commission and compensation received by the Firm including payment for services rendered as an attorney, an guardian ad litem, as a referee, commissioner as an executor or trustee, as a director or officer, as an arbitrator, as an expert or otherwise, less any fees, commissions or disbursements written off by you prior to issuance of a bill, any write-offs, commissions or disbursements requested by the client which are agreed to by the Equity Partners, and any account receivable which has been outstanding for a period of ninety (90) days or longer . . . The additional compensation shall be paid to Manning commencing in January, 2002 with respect to business originated by Manning in 2001 (and in January of each year thereafter with respect to business originated in the prior year). The firm reserves the right to pay such additional compensation in equal quarterly installments during year 2002 (and in each year thereafter).In the event Manning shall withdraw from the Firm or terminate his relationship with the Firm, all additional compensation, accrued or otherwise, shall be forfeited.In the event the Firm terminates Manning’s relationship with the Firm for any reason, then Manning shall only be entitled to receive any additional compensation accrued to the effective date of such termination.Defendant argues that the agreement makes it “crystal clear” that because plaintiff withdrew from the firm thereby terminating their relationship, “all additional compensation accrued shall be forfeited”. Therefore, defendant argues, plaintiff’s first and third cause of action are barred by the agreement. Alternatively, defendant points out that the two causes of action total $25,410.96 and therefore exceed the $25,000 monetary limitation of Civil Court and must therefore be transferred to New York State Supreme Court.Plaintiff argues in opposition to defendant’s motion that earned wages forfeiture clauses in contracts are unenforceable as against public policy. Plaintiff further argues that the three causes of action set forth in the complaint are separate and as long as they each fall within the monetary limitations the fact that the aggregate amount exceeds $25,000 does not divest jurisdiction from Civil Court requiring a transfer to Supreme Court.“To succeed on a motion under CPLR §3211(a)(1) a defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law and definitively disposes of the plaintiff’s claim” (Morrow v. MVP Health Plan, Inc., 307 A.D.2d 627 [3rd Dept., 2003] citing Ozdemir v. Caithness Corp., 285 A.D.2d 961 [3rd Dept., 2001] Iv denied 97 N.Y.2d 605 [2001]). Here, defendants rely upon the parties employment agreement cited previously.New York State has a long standing general policy against the forfeiture of earned “wages” (Mirchel v. RMJ Securities Corp., 205 A.D.2d 388[1st Dept., 1994]). The cases interpreting contracts with forfeiture clause involving attorneys have normally also been coupled with non-competition clauses (Cohen v. Lord, Day & Lord, 75 N. Y.2d 95 [1989]) and have been held violative of public policy because they have been held to restrict the practice of law in violation of the New York Code of Professional Responsibility (“CPR”) (Id.). The instant case does not involve a non compete clause and therefore would be distinguishable from Cohen v. Lord, Day & Lord, supra and the progeny of such cases. Thus the question becomes whether all income forfeiture clause is allowable between attorneys absence a non compete clause.When faced with determining the viability of contracts provisions with income forfeiture clauses the issue presented is whether the clause involves compensation that can be termed a “bonus or incentive pay” payable at the discretion of the employer and thus subject to forfeiture or whether it is “earned wages” which is not subject to forfeiture (Weiner v. Diebold Group, 173 A.D.2d 166 [1st Dept, 1991]). Parties are normally free to make any bargain they wish and are held to bargains made by them with their eyes open however they, including attorneys, are not free to enter into contracts which violate public policy (Cohen v. Lord, Day & Lord, supra 101; Weiner v. Diebold, supra 167). Thus it holds that since contracts with earned wages forfeiture clauses violate public policies that such clauses entered into by attorneys would also be void even without the non-compete provision. Therefore the issue of whether a contract provision constitutes compensation that may be the subject of a forfeiture clause or whether it is earned wages which may not be subject to a forfeiture is an issue of fact. (Mirchel v. RMJ Securities Corp, supra 388).The contract provision herein presents a factual question as to whether the “additional income” is income that may be forfeited. A fact finding hearing is thus required. Defendant’s motion to dismiss is accordingly denied.Plaintiff’s first cause and third cause of action although based upon the contract are separate actions that could each be asserted independently of each other. Notably, defendant has not objected to the second cause of action and therefore the Court need not discuss it in determining the jurisdictional amount. The law is clear that a party may maintain truly separate causes of action in one suit and Civil Court has jurisdiction as long as each claim asserted falls within the jurisdictional amount (N.Y.C.C.C.A. §211; Kemper v. Transamerica Ins. Co., 61 Misc2d 7 [N.Y. Co., 1969]). “A cause of action is the right to bring a suit, and that right is based upon the ground or grounds of which an action may be maintained . . . If the facts alleged show one primary right of the plaintiff and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action” (Kemper v. Transamerica, Ins. Co., supra). In the instant case plaintiff has a separate and independent claim to money for each of the years 2002 and 2003. Plaintiff’s allegations constitute two separate and independent actions by defendant (i.e. two rights and two wrongs by defendant). As plaintiff’s causes of action each separably come within the Civil Court’s monetary limits, the action is properly brought in Civil Court. Accordingly, defendant’s motion seeking transfer of this matter to the New York Supreme Court is hereby denied.For the reason set forth above, defendant’s motion is denied in its entirety.If this Order requires the Clerk to perform a function, movant is directed to serve a copy of the Order upon the appropriate Clerk.This constitutes the decision and order of the Court. n
