McGivney v Union Turnpike Rest. LLC
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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 Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------------------------------------------------------------------------------------------------------------------------------------ [* 1] SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NASSAU MARISSA McGIVNY, et at, Plaintiffs, Index No. 10544/2011 - against UNION TUIKE RESTAURT LLC d//a TWO STEAK AN SUSHI DEN, et aI. Defendats. 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. BACKGROUN 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, ' 16. The thee plaintiffs asser that they have initiated this action [* 2] for themselves, and on behalf of all similarly situted Id., 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 witheld and 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 four cause of action). Id., 55, 67, 69, 76. The fourth claim has been withdrawn by plaintiffs.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. [* 3] DISCUSSION 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 v. Well 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 Leon plaintiff the benefit of every favorable inference. (1994); Paterno v. 8 A. CYC, LLC, granted only if the cour Martinez 84 N. then determines 87- that the plaintiff does not have a cognizable 370- 71 (2d Dep t 1986); Ingram and v. Delta Electric, Inc. 2d 369, 2d 83 3d 544 544 (2d Dep t 2004). Dismissal should be cause of action upon which relief can be granted. Greene, Inc. 123 A. v. v. 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. Co., 98 N. 2d 144, 151- 52 '" 511 Jennifer Realty (2002) (internal citations omitted). 3013, a pleading shall consist of statements Defendants argue that, under CPLR 'tat are sufficiently v. 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., 105 A. Mot Br at 5, 2d 236, 239 (2d Dep citing DiMauro t 1984), citing CPLR 9 [* 4] 3013. Defendants contend that the complaint in the instant action consists of little more than bare conclusions , and that the factul information and belief. " Mot Br allegations 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 statutory claims. Id. at 6. Defendants cite, information and belief, for hours worked. Id. inter alia, the referenced plaintiffs ' assertion , upon that they " did not always receive minimum wage compensation , citing Compl, ' 45. Defendants aver that the complaint lacks any facts "whatsoever which would tend to support this vague conclusion. Id. at 7. 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 Id. 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. Id. at 10. Rather, they Id. In this, plaintiffs are correct. 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. [* 5] 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 following discovery. 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 causes pf action must be dismissed as against all defendants. Id. 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 , 45. [* 6] Documenta Evidenee 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. Leon v. Martinez 84 N. 2d 83, 88 (1994). However, " such motion may be appropriately granted only where the documentar evidence utterly refutes plaintiffs factual allegations , Goshen v. Ramjohn, v. conclusively establishing a defense as a matter of law. Mutual Life Ins. Co. of New York 98 N. 85 A. 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 that 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. Id. at 16. 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. '" [* 7] Opp Br at 12- 13. Plaintiffs assert that, as such, defendants not resolve the issues but creates documentar evidence" does Id. , or perhaps reflects, a question of fact. at 13. 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 171 A. of Labor, 133 A. Roberts, form the basis for causes of action. 2d 795 (2d Dep t 1991); John Schepanski Roofing v. L&M Company NYS Dep ' Gutters 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. Class Action 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 of plaintiffs ' causes of action should be dismissed for failure to state a claim , the Court finds [* 8] 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 Four Food Studio, and fuer ORDERED that the remaider of the action shall continue. This constitutes the Decision and Order of the Court. Dated: April , 2012 ENTER: ENTJ:RF=O APR 18 2012 NASSAU COy"~ COUNTY CLERK' 4 The Cour notes tht the question of class certfication is not curently before it. l'f OFFlc
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