Kletter v. Fleming, 32 A.D.3d 566 (N.Y. App. Div. 2006). · Go Syfert
Kletter v. Fleming, 32 A.D.3d 566 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
28 citation events (28 in the last 25 years) across 5 distinct courts.
Strongest positive: Matter of William Mattar, P.C. v. Riley (nyappdiv, 2025-05-02)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of William Mattar, P.C. v. Riley
N.Y. App. Div. · 2025 · confidence medium
In addition, we conclude that petitioner's failure to pay respondent that compensation 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 ).
discussed Cited as authority (rule) Adams v. Bloomberg L.P.
S.D.N.Y. · 2023 · confidence medium
“In order to state a claim for a violation of NYLL § 193, a plaintiff must allege a specific deduction from wages and not merely a failure to pay wages.” Goldberg v. Jacquet, 667 F. App’x 313, 314 (2d Cir. 2016) (citing Kletter v. Flemming, 820 N.Y.S.2d 348, 350 (App. Div. 2006)).
cited Cited as authority (rule) Klein v. CGB Publ. PTY Ltd.
N.Y. App. Term. · 2021 · confidence medium
Co., LLC v Munn , 151 AD3d 668, 671 [2017] ; Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming , 32 AD3d 566, 567 [2006]; Slotnick v RBL Agency , 271 AD2d 365 [2000]).
cited Cited as authority (rule) Ayres v. Shiver
E.D.N.Y · 2021 · confidence medium
Kletter v. Fleming, 32 A.D.3d 566, 567 (3d Dep’t 2006) (internal quotation omitted).
discussed Cited as authority (rule) Schmidt-Sarosi v. Offices for Fertility & Reproductive Medicine, P.C.
N.Y. App. Div. · 2021 · confidence medium
The motion court agreed with defendants and dismissed plaintiff's Labor Law claims. [FN2] Under Labor Law § 193(1)(b), "[n]o employer shall make any deduction from the wages of an employee, except deductions which . . . are expressly authorized in writing by the employee and are for the benefit of the employee." In order to state a claim for a violation of § 193, "a plaintiff must allege a specific deduction from wages and not merely a failure to pay wages" ( Goldberg v Jacquet, 667 Fed Appx 313, 314 [2d Cir 2016], citing Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming , …
discussed Cited as authority (rule) Schmidt-Sarosi v. Offices for Fertility & Reproductive Medicine, P.C.
N.Y. App. Div. · 2021 · confidence medium
The motion court agreed with defendants and dismissed plaintiff's Labor Law claims. [FN2] Under Labor Law § 193(1)(b), "[n]o employer shall make any deduction from the wages of an employee, except deductions which . . . are expressly authorized in writing by the employee and are for the benefit of the employee." In order to state a claim for a violation of § 193, "a plaintiff must allege a specific deduction from wages and not merely a failure to pay wages" ( Goldberg v Jacquet, 667 Fed Appx 313, 314 [2d Cir 2016], citing Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming , …
discussed Cited as authority (rule) Cascade Bldrs. Corp. v. Rugar
N.Y. App. Div. · 2021 · confidence medium
We note that Rugar did not seek summary judgment on this ground and only asserted it in a later "cross motion" in response to Benjamin Moore's motion. [FN2] Given that this is a legal issue and plaintiff had the opportunity to address it when opposing Benjamin [*3]Moore's motion, it was an improvident exercise of discretion for Supreme Court not to entertain this ground on behalf of Rugar and grant the relief sought by him, especially where, under the circumstances of this case, doing so would be a preferable use of judicial resources ( see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., …
cited Cited as authority (rule) Danusiar v. Auditchain USA, Inc.
S.D.N.Y. · 2020 · confidence medium
Mar. 9, 2007), which makes citation to Kletter v. Fleming, 32 A.D.3d 566, 567 , 820 N.Y.S.2d 348, 350 (App. Div. 3d Dep’t 2006).
cited Cited as authority (rule) Danusiar v. Auditchain USA, Inc.
S.D.N.Y. · 2020 · confidence medium
Mar. 9, 2007), which makes citation to Kletter v. Fleming, 32 A.D.3d 566, 567 , 820 N.Y.S.2d 348, 350 (App. Div. 3d Dep’t 2006).
discussed Cited as authority (rule) Zinno v. Frank J. Schlehr, M.D., P.C.
N.Y. App. Div. · 2019 · confidence medium
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 …
discussed Cited as authority (rule) Perella Weinberg Partners LLC v. Kramer
N.Y. App. Div. · 2017 · confidence medium
Defendants Kramer, Slonecker, Scherer and Verost’s Labor Law claims were correctly dismissed because a wholesale withholding of payment is not a “deduction” within the meaning of Labor Law § 193 (see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming, 32 AD3d 566, 567 [3d Dept 2006]; Sheehan v Square Mile Capital Partners, 2013 WL 649418 , *4 [Sup Ct, NY County, Feb. 19, 2013, No. 653120/2012]; Wachter v Kim, 2013 WL 144760 [Sup Ct, NY County, Jan. 11, 2013, No. 650532/08]; Goldberg v Jacquet, 667 Fed Appx 313, 314 [2d Cir 2016]; O’Grady v BlueCrest Capital Mgt.
discussed Cited as authority (rule) O'Grady v. Bluecrest Capital Management LLP
S.D.N.Y. · 2015 · confidence medium
Mar. 9, 2007) (“Section 193 has nothing to do with failure to pay wages or severance benefits, governing instead the specific subject of making deductions from wages.”); Kletter v. Fleming, 32 A.D.3d 566, 567 , 820 N.Y.S.2d 348, 350 (3d Dept.2006) (affirming the dismissal of a counterclaim for nonpayment of compensation where the defendant “fail[ed] to allege any specific deduction in violation of section 193”).
discussed Cited as authority (rule) Green Harbour Homeowners Ass'n v. Ermiger
N.Y. App. Div. · 2015 · confidence medium
In light of these circumstances, we find that Supreme Court acted within its broad discretion in considering the motion (see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming, 32 AD3d 566, 567 [2006]; Matter of Mega Personal Lines, Inc. v Halton, 9 AD3d 553, 554-555 [2004]; W.
discussed Cited as authority (rule) Green Harbour Homeowners Ass'n v. Ermiger
N.Y. App. Div. · 2015 · confidence medium
In light of these circumstances, we find that Supreme Court acted within its broad discretion in considering the motion (see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming, 32 AD3d 566, 567 [2006]; Matter of Mega Personal Lines, Inc. v Halton, 9 AD3d 553, 554-555 [2004]; W.
discussed Cited as authority (rule) Valley National Bank v. INI Holding, LLC
N.Y. App. Div. · 2012 · confidence medium
Although multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause, a subsequent summary judgment motion may be properly entertained when it is substantively valid and when the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 [1st Dept 2012]; Town of Angelica v Smith, 89 AD3d 1547, 1549 [2011]; Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v…
cited Cited as authority (rule) Cuervo v. Opera Solutions LLC
N.Y. App. Div. · 2011 · confidence medium
To state a claim under Labor Law § 193, plaintiff must allege a specific deduction from wages (see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming, 32 AD3d 566, 567 [2006]).
discussed Cited "see" Goldberg v. Jacquet (2×)
2d Cir. · 2016 · signal: see · confidence high
See Kletter v. Fleming, 32 A.D.3d 566, 567 , 820 N.Y.S.2d 348 (N.Y.
discussed Cited "see, e.g." Smith v. Lyle
S.D.N.Y. · 2025 · signal: see, e.g. · confidence medium
See, e.g., Goldberg v. Jacquet, 667 F. App’x 313, 314 (2d Cir. 2016) (summary order) (“In order to state a claim for a violation of NYLL § 193, a plaintiff must allege a specific deduction from wages and not merely a failure to pay wages.” (citing Kletter v. Fleming, 820 N.Y.S.2d 348, 350 (3d Dep’t 2006))); Gold v. Am.
Retrieving the full opinion text from the archive…
Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C.
v.
Daniel Fleming
Appellate Division of the Supreme Court of the State of New York.
Aug 3, 2006.
32 A.D.3d 566
Rose.
Cited by 20 opinions  |  Published
Rose, J.

Appeal from an order of the Supreme Court (Nolan, Jr., J.), entered May 13, 2005 in Saratoga County, which, inter alia, granted plaintiffs motion to dismiss defendant’s counterclaim alleging a violation of the Labor Law.

Defendant, a dentist, worked for plaintiff pursuant to a written contract that specified his compensation. After the parties terminated their relationship, plaintiff commenced this action against defendant alleging certain breaches of the contract. Defendant, in turn, asserted four counterclaims alleging, as is relevant here, nonpayment of the agreed-upon compensation and violation of Labor Law article 6. Supreme Court granted defendant’s motion for partial summary judgment by dismissing the complaint and partially granted plaintiffs cross motion by dismissing defendant’s first counterclaim. More than two years later, after completion of discovery and on the eve of trial, plaintiff moved in limine to preclude defendant from offering proof in support of his fourth counterclaim for violation of the[*567] Labor Law. Finding that Labor Law article 6 was inapplicable, Supreme Court granted plaintiffs motion and also precluded defendant from presenting proof of his claim to payment for the corrective work that he had performed. Defendant now appeals.

Initially, we reject defendant’s procedural argument that Supreme Court erred in entertaining plaintiff’s motion for preclusion. Even if we were to view it as a second request for summary judgment, Supreme Court did not abuse its discretion in considering it because it was made within the time limits of CPLR 3212 (a) and it turned upon a legal issue not previously decided (see Matter of Mega Personal Lines, Inc. v Halton, 9 AD3d 553, 554-555 [2004]; W. Joseph McPhillips, Inc. v Ellis, 8 AD3d 782, 783 [2004]). Under the circumstances, consideration of the second motion was the preferable use of judicial resources and properly limited the issues to be resolved at trial (see Rose v Horton Med. Ctr., 29 AD3d 977, 978 [2006]).

Nor are we persuaded that Supreme Court erred in finding Labor Law article 6 to be inapplicable. The statutory remedies are unavailable where, as here, the claim for unpaid work is “a common-law contractual remuneration claim” and no substantive violation of article 6 is alleged (Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457, 465 [1993]). Defendant’s fourth counterclaim cites only Labor Law § 190, which contains only definitions, and in opposing plaintiffs first motion seeking dismissal of this claim, he asserted only that plaintiff had not paid sill the money owed under the parties’ contract. Although an affirmation by defendant’s counsel submitted in response to the preclusion motion cites Labor Law § 191 (3) and § 193 for the first time, we note that section 191 (3) is not applicable because defendant, as a professional earning in excess of $600 per week, does not fall within any of the categories of workers listed in section 191. Nor does defendant allege any specific deduction in violation of section 193 (see Slotnick v RBL Agency, 271 AD2d 365, 366 [2000]). While his supplemental bill of particulars asserts that plaintiff withheld some of defendant’s pay to compensate other dentists for the correction of his work, this assertion merely amplifies his breach of contract claim that plaintiff improperly calculated the net amount upon which his percentage fees were based. This dispute as to the calculation of the net amount does not reflect a deduction from wages within the meaning of Labor Law § 193 and, thus, the additional remedies provided by Labor Law article 6 are not available here.

We likewise find no merit in defendant’s argument that Supreme Court improperly precluded him from offering proof of his claim to payment for the corrective work that he performed[*568] on the patients of other dentists. The parties’ contract unambiguously specifies that defendant shall be paid “33% of all net fees collected” for his services and he conceded in his deposition that plaintiff collects no fees for his corrective work. Thus, as Supreme Court found, the contract makes no provision for the claimed payments. Defendant’s allegation that plaintiff nonetheless agreed to pay him for such work constitutes extrinsic evidence of an additional payment term that is barred by the parol evidence rule (see Stone v Schulz, 231 AD2d 707, 707 [1996]; Payne v Enable Software, 229 AD2d 880, 882 [1996]; Foss v American Tel. & Tel. Co., 199 AD2d 668, 669 [1993]). Finally, Supreme Court’s denial of defendant’s cross motion to compel production of plaintiffs records concerning such corrective work was proper.

Crew III, J.P., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.