Hylton v BLT Restaurant Group LLC

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Hylton v BLT Restaurant Group LLC 2013 NY Slip Op 33315(U) December 23, 2013 Sup Ct, New York County Docket Number: 653077/13 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/24/2013 1] INDEX NO. 653077/2013 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/24/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY CYNTHIA S. KERN PRESENT: ( PART _ __ J.S.C. ------------'-~ice I_ Index Number : 65307712013 HYLTON, SHANI INDEX N O . - - - - MOTION DATE _ _ __ vs BLT RESTAURANT GROUP LLC MOTION SEQ. NO. _ __ Sequence Number : 001 DISMISS ACTION The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - I No(s)._ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits Exhibits----------------- I No(s). - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - - 1No(s). - - - - - - Answering Affidavits - Upon the foregoing papers, it is ordered that this motion is w (.) i== :::> .., "' 0 I- C w ~ ~ w LL. w ~ .. >- ~ - ..J ..J z :::> 0 LL. <( I- " ' (.) w w g, w ~ ~ (!) z - "' 5: - 0 w ..J "' ..J <( 0 (.) LL. - ::i:: z w 0 Ii== ~ 0 0 :!: LL. ,J.S.C. Dated: CYNTHIA S. KERN 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED 0 GRANTED 0 DENIED 0 SETILE ORDER 0DONOTPOST J.s.c. ·~ NON-FINAL DISPOSITION ~ 0 0 GRANTED IN PART OTHER []SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x SHANI HYLTON, individually and on behalf of all others similarly situated and on behalf of the general public, ,,; Plaintiff, lndex1No. 653077/13 DECiSION/ORDER -against- BLT RESTAURANT GROUP LLC and BLT GRILL NYCLLC, Defendants. ----------------------------------------------------------------------x HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for Papers Numbered Notice of Motion and Affidavits Annexed.................................... Notice of Cross-Motion................................................................... Replying Affidavits...................................................................... Exhibits...................................................................................... 1 2 3 4 Plaintiff Shani Hylton commenced the instant class action against;defendants BLT Restaurant Group LLC and BLT Grill NYC LLC (hereinafter collectively referred to as "defendants") alleging unlawful surveillance in violation of New York Labor Law ("Labor Law") i § 203-c. Defendants now move for an Order pursuant to CPLR §§ 3211 J(a)(l) and (a)(7) I dismissing the complaint based on documentary evidence and that it fails.to state a cause of action. For the reasons set forth below, defendants' motion is denied. The relevant facts are as follows. In or around June 2012, plaintiff was employed by defendants as a line cook at one of defendants' restaurants, BLT Bar & Grill, located at 123 Washington Street, New York, New York (the "restaurant"). Plaintiff all~ges that the restaurant's [* 3] facilities include a locker room that is used by approximately fofo/ employees to store personal belongings and to change into and out of their work uniforms, which must be left at the restaurant when the employees are not working. Plaintiff further alleges that in or around June 2013, the restaurant's management installed a video camera in said locker room and that beneath the video camera is a sign informing employees that they are subject to twenty-four hour video surveillance. Defendants allege that the video camera was installed in that area after they received numerous complaints from employees that their personal belongings were being stol.en. Plaintiff then ! commenced the instant class action against defendants alleging unlawful surveillance in violation of Labor Law§ 203-c. Defendants now move for an Order pursuant to CPLR §§ 321 l(a)(l) and (a)(7) dismissing the complaint based on documentary evidence and that it fails to state a cause of action. On a motion addressed to the sufficiency of the pleadings, the facts pleaded are assumed to be true and accorded every favorable inference. See Morone v. Morone, 5,0 N. Y.2d 481 (1980). i Moreover,. "a [claim] should not be dismissed on a pleading motion so Iorig as, when [defendant's] allegations are given the benefit of every possible inference, a cause of action exists." Rosen v. Raum, 164 A.D.2d 809 (1st Dept 1990). "Where a pleading is attacked for alleged inadequacy in its statements, [the] inquiry should be limited to 'whether it states in some recognizable form any cause of action known to our law." Foley v. D 'Agostino, 21 A.D.2d 60, 64-65 (1st Dept 1977), citing Dulberg v. Mock, 1 N. Y.2d 54, 56 (1956). F~rther, in order to I prevail on a defense founded on documentary evidence pursuant to CPLR § 3211 (a)(l), the documents relied upon must definitively dispose of plaintiffs claim. See Bronxville Knolls, Inc. ' v. Webster Town Partnership, 221A.D.2d248 (Pt Dept 1995). Additionally, the documentary evidence must be such that it resolves all factual issues as a matter of law. Goshen v. Mutual Life 2 [* 4] Ins. Co. ofNew York, 98 N.Y.2d 314 (2002). In the instant action, defendants' motion for an Order pursuant to CPLR §§ 3211 (a)(7) dismissing the complaint on the ground that it fails to state a cause of action is denied as plaintiff has sufficiently alleged a cause of action for unlawful surveillance. Pursuant to Labor Law § 2031 . I c, "[n]o employer may cause a video recording to be made of any employ~e in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order." Plaintiffs complaint alleges that defendants violated Labor Law§ 203-c when they "unlawfully installed a video camera in a locker room designated by Defendant for i I approximately forty of its employees to change their clothes." Thus, plaintiff sufficiently states a cause of action for unlawful surveillance pursuant to CPLR § 203-c. Defendants' motion for an Order pursuant to CPLR § 3211 (a)(l) dismissing the complaint based on documentary evidence is also denied as the documents relied upbn by defendants do not definitively dispose of plaintiffs claim. Defendants rely on photographs of the room at issue which they allege show that the room was not a "locker room" pursuant t~ CPLR § 203-c but rather a storage room. However, the photographs do not conclusively establish that the room was I I not a "locker room" pursuant to that statute as they merely show a closed-?ff area with lockers and storage space. However, even if the photographs did conclusively establish that the room was actually a storage room and not a locker room pursuant to that statute as a matter of law, which they do not, they still would not definitively dispose of plaintiffs claim a~: they do not I conclusively establish that defendants did not designate the storage room as a place for employees to change their clothes, which would also be a violation of Labor Law§ 203-c. Defendants' assertion in the affidavit of Eduard Petrescu, the restaurant's General Manager, that the room at I issue was not designated by defendants as an area to change clothes as "[t],he employees are I 3 [* 5] permitted to change their clothes in the bathrooms not the storage area" also does not definitely dispose of plaintiff's claim as party affidavits do not constitute documentary evidence on a motion to dismiss. See Flowers v. 73'd Townhouse LLC, 99 A.D.3d 431 (1st Dept ,2012). Accordingly, defendants' motion to dismiss the complaint is denied. This constitutes the decision and order of the court. Dated: Enter: ---~e-~-'------i : J.S.C. , KERN cYNTH~A s. J.s.c. 4

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