McGivney v Union Turnpike Rest. LLC
2012 NY Slip Op 31097(U)
April 6, 2012
Sup Ct, Nassau County
Docket Number: 10544/2011
Judge: Lawrence K. Marks
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SUPREME COURT OF THE ST ATE OF NEW YORK
COUNTY OF NASSAU
MARISSA McGIVNY, et at,
Index No. 10544/2011
- against UNION TUIKE RESTAURT LLC d//a
TWO STEAK AN SUSHI DEN, et aI.
LAWRNCE K. MAS , J.
Defendants Union Turnpike Restaurant LLC, d/b/a Two Steak & Sushi Den (" Two
Steak" ), 515 Restaurt LLC, d//a Four Food Studio ("Four Food" ), and Jay Grossman
seek dismissal of the Complaint filed against them by plaintiffs Marssa McGivney,
Danielle Brooke Mur,
and Chrstina Suthakar.
This action involves allegations of violations of the labor laws and regulations , as
it pertins to wages paid to employees of the two defendant restaurants. Defendant
Grossman is alleged to have been an officer, director and/or owner of Two Steak and
Four Food. Compl, '
The thee plaintiffs asser that they have initiated this action
for themselves, and on behalf of all similarly situted
employees of the defendants.
In their complaint, plaintiffs allege that defendants: failed to pay them, and other
members of the putative class, minimum wage compensation, in violation of New York
137- 1.2 & 1.5 (the first cause of action);
663 and 12 NYCRR
Labor Law Aricle 19
personally retained portions of gratuities earned by service employees , in
196- d (the second cause of action);
violation of New York Labor Law Aricle 6
witheld wages and overtime payments
for time worked over fort
hours per week, in
191, 193 (the third cause of action); and failed to
violation of New York Labor Law
pay " spread of hour " compensation when plaintiffs, and other members of the putative
137- 1.7 (the
class, worked more than ten hours in a day, in violation of 12 NYCRR
cause of action).
69, 76. The fourth claim has been
by plaintiffs. Opp Br at 2.
In the instant motion, defendants seek dismissal of all claims, pursuant to CPLR
3211(a)(7), for failure to state a claim. Additionally, with regard to the claims against
Four Food Studio and Grossman, defendats seek dismissal , pursuant to CPLR
3211(a)(I), based on documentar evidence.
1 Defendants assert that the individua plaintiffs were all former employees of Four Food
and plaintiff Mur is a curent employee of Two Steak. Mot Br at 4; Mot Br at 4 nl.
Emure to State a Claim
On a motion for dismissal, puruant to CPLR ~ 3211(a)(7), the court must evaluate
whether the plaintiff has a legally cognizable cause of action, rather than analyzing
whether the pleadings in the action are proper.
Yeshiva Rambam 300 A.
580, 580- 81 (2d Dep t 2002). The complaint should be liberally construed, granting
plaintiff the benefit of every favorable inference.
granted only if the cour
Martinez 84 N.
that the plaintiff does not have a cognizable
370- 71 (2d Dep
Delta Electric, Inc.
3d 544 544 (2d Dep t 2004). Dismissal should be
cause of action upon which relief can be granted.
Greene, Inc. 123 A.
see also Sokol
Leader , 74
D.3d 1180, 1181 (2d Dep t 2010). Indeed, the "motion must be denied if from the
pleadings ' four comers ' factual allegations are discerned which taken together manifest
any cause of action cognizable at law.
2d 144, 151- 52
(2002) (internal citations omitted).
3013, a pleading shall consist of statements
Defendants argue that, under CPLR
'tat are sufficiently
West 232nd Owners Corp.
paricular to give the court and parties notice of the transactions
occurences, or series of transactions or occurences, intended to be proved and the
material elements of each cause of action or defense. "
Metropolitan Suburban Bus Auth.,
2d 236, 239 (2d Dep
3013. Defendants contend that the complaint in the instant action consists of little more
than bare conclusions , and that the factul
information and belief. "
therein are merely made " upon
at 3. They argue that the complaint contains no
ultimate facts " and does nothing more than "parot the terminology of
at 6. Defendants cite,
information and belief,
for hours worked. Id.
plaintiffs ' assertion , upon
that they " did not always receive minimum wage compensation
45. Defendants aver
that the complaint lacks any
facts "whatsoever which would tend to support this vague conclusion.
Plaintiffs oppose the instant motion, asserting that the complaint is more than clear
enough to apprise the court and the paries of the subject matter of the controversy. Opp
Br at 3. They argue that the information that defendants fault for being absent from the
complaint is information plaintiffs are not required to have at the pleadings stage.
9. Plaintiffs do not
dispute that they wil , ultimately, have the burden of proving that they
. performed work for which they were not properly compensated.
assert that they have met the requirement at the pleadings stage.
at 10. Rather, they
In this, plaintiffs are
Defendants claim that, due to plaintiffs "pleading deficiencies, " they " are
prejudiced because, among other reasons, they are unable to prepare a defense due to lack
2 In the alterntive , plaintiffs request leave to replead. Opp Br at 3 , 16- 17.
of adequate notice. " Reply Br at 3. This claim is unsupported. Defendants appear to
have more than adequate notice of the causes of action , law relied upon and issues raised
by plaintiffs. Defendats have failed to indicate why, or in what way, they would be
unable to request documents and interrogatory answers, or not have ample bases for
asking questions at depositions. Moreover , there is no basis for the Court to determine at
this time that the defendants would be unable to prepare their defenses, both now and
Defendants also argue that plaintiffs did not adequately oppose their arguments
with regard to plaintiffs ' second and third causes of action and that, as a result , these
action must be dismissed as against all defendants.
at 2. The Cour
however, does not find that plaintiffs abandoned or failed to oppose dismissal of these
claims. Rather , it is clear from the papers submitted that plaintiffs view their opposition
with regard to these claims as not significantly distinct from their opposition to dismissal
of their first cause of action; in all , plaintiffs are asserting that they have provided
defendats with suffcient information regarding the nature of their claims, given that this
case is only at the pleadings stage. 3 Again, plaintiffs are correct.
For example , defendants argue that plaintiffs have not alleged they ever received less
than the "proper ' tipped minimum wage ' rate. " Reply Br at 8. They assert that plaintiffs " do not
even suggest tht they could assert a claim that they were paid at rates below the New York
tipped minimum wage. " Reply Br at 9. Whle it is certnly true that this precise language is not
found in the complaint, plaintiffs do clearly assert the different minimum wages, when tips are
and ar not included, and that they "did not always receive minimum wage compensation for
hour worked. " Compl
Defendants also argue that, with respect to defendants Four Food and Grossman
the claims should also be dismissed pursuant to CPLR ~ 3211(a)(I). Mot Br at 15.
Under CPLR ~ 3211(a)(I), dismissal of a complaint is waranted only where "the
documenta evidence submitted conclusively establishes a defense to the asserted claims
as a matter oflaw.
Martinez 84 N.
2d 83, 88 (1994). However, " such motion
may be appropriately granted only where the documentar evidence utterly refutes
plaintiffs factual allegations ,
conclusively establishing a defense as a matter of law.
Mutual Life Ins. Co. of New York 98 N.
2d 314, 326 (2002);
see also Nisari
3d 987, 988 (2d Dep t 2011).
Defendants contend that plaintiffs allegations, made upon information and belief
are belied by documentar evidence, and the claims should therefore be dismissed. Mot
Br at 4. Defendants assert that the timekeeping and payroll records clearly establish
each of the plaintiffs was properly paid in accordance with New York law. Mot Br at 15.
For example , defendants assert that each of the plaintiffs received the proper tipped
minimum wage rate, eared sufficient tips to ensure they received at least the standard
minimum wage rate and, when adding in the tips they received, at times eared in excess
of twenty to thirt dollars per hour.
Plaintiffs argue, however, that their very allegations stem from claims that the
hours reflected on plaintiffs ' paychecks did not accurately reflect the hours they worked.
Opp Br at 12- 13. Plaintiffs assert that, as such, defendants
not resolve the issues but creates
documentar evidence" does
, or perhaps reflects, a question of fact.
Plaintiffs note that it " is hardly ' inherently incredible ' to believe than an employer
payroll records may be inaccurate. Id..
Plaintiffs again are correct. Inaccurcies in records created and malntained by an
employer can certinly
form the basis for causes of action.
2d 795 (2d Dep
John Schepanski Roofing
NYS Dep '
2d 757 (2d Dep t 1987) (both involving proceedings by the Department
of Labor). At this time, the accuracy of such records is a question of fact , not yet
determined. Accordingly, the Cour canot use them as a basis for the dismissal of any
claims, whether sounding in wage rates, the witholding of wages, the timeliness of
payment, or anyting else.
Defendants argue that, where plaintiffs fail to state a claim , the class action must
be dismissed. Mot Br at 20. They contend that plaintiffs
conclusory allegations " are
deficiencies that are fatal not only to their own claims, but to their putative class action
claims as well.
Id. Reply Br at 10.
Plaintiffs correctly note that this is defendants ' only basis for seeking dismissal of
plaintiffs ' class claims. Opp Br at 16. Inasmuch as the Cour has not found that any
plaintiffs ' causes of action should be dismissed for failure to state a claim , the Court finds
that defendants have failed to establish their entitlement to dismissal of the class action
claims at this time.
The Cour has considered the paries ' other arguments, and finds them unavailng.
Accordingly, it is
ORDERED that the motion to dismiss of defendants Union Turnpike Restaurant
LLC, d//a Two Steak & Sushi Den , 515 Restaurant LLC, d//a
Jay Grossman, motion sequence #1 , is denied in full; and it is
Food Studio, and
ORDERED that the remaider of the action shall continue.
This constitutes the Decision and Order of the Court.
APR 18 2012
4 The Cour notes tht
the question of class certfication is not curently