Pressley v Ford Models, Inc.

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Pressley v Ford Models, Inc. 2018 NY Slip Op 30892(U) May 9, 2018 Supreme Court, New York County Docket Number: 653001/2016 Judge: O. Peter Sherwood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 1] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 SUPREME COURT 011' THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Sf-IA WN PRESSLEY, et al., DECISION AND ORDER Index No.: 653001/2016 Plaintiffs, -against- Mot. Seq. Nos.: 002-004 FORD MODELS, INC., et al., Defendants. -------- ------------------------- ----x 0. PETER SHERWOOD, .J.: Defendants Wilhelmina Models, Inc. and Wilhelmina International Ltd. (together "\Vilhelmina"), Click Model Management ('"Click") and Next Model Management, LLC ("'Next"), em:h seek dismissal of the First Amended Complaint ("F AC'") under CPLR 321 moves for sanctions pursuant to 22 NYCRR J. Click also *130-1.1. For the following reasons, the motions are granted to the limited extent of dismissing count one as pleaded against Click and Next, count four as pleaded against Click, and count five in its entirety. As to whether plaintiff waived the right to pursue a class action or to a jury trial against Next, decision shall be deferred. I. BACKGROUND Plaintiff Mel Platzke having passed away and plaintiff Sha\vn Pressley having discontinued her claims, plaintiff Roberta Little (hcreinaHer referred to as "rlaintiff') remains the sole proposed class representative in this action. Her allegations substantially mirror the claims at issue in Shanklin v W'ilhefm;na Afodels, inc. (Index No. 653702/2013) ("'.)'hanklin") 1• Plaintiff asserts substantially the same claims against each defen~lant. Specifically, defendant exercised significant control over all aspects of Li ttlc' s modeling car~ ~r by ( 1) requiring her to enter into an exdusive contract or prohibiting her from securing assignments on her own; (2) determining \Vhere she would work, for whom, and for hm.v much pay; (3) negotiating the terms and conditions of her assignments and presenting them to her on a take-it-or-leave it basis; ( 4) discouraging her fl·om turning dO\vn any assignments; (5) issuing paychecks to her, determining the form and timing of her pay; (6) controlling her schedule, including requiring her to keep the agency apprised of any planned vacations; and (7) detem1ining the form and content of her promotional images and 1 In this Decision and Order. rekrcnce is made lo two Decisions and Orders in the Shanklin case. "Shanklin/" is datrd August 1l. 20\.t "ShanA!i11 II" is dakd May 25, 2016. Paget of 15 2 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 2] INDEX NO. 653001/2016 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/09/2018 information (see NYSCEF Doc. No. 41, First Amended Complaint ["FAC'I [allegations against Clickj, iii! 26, 45, [allegations against Wilhelmina]). 126-31 Iallegations against Next j, ~ii 45, 141; 145-51 iii! 26, 45, 60, 61, 65-73 Further, each defendant made unapproved. unlawful deductions from Little's modelling paychecks (see id. irir 151, 153-154, 156, 174-1 89 Ial legations against Click), ii~! 58, 131-133, 136, 174-186 [allegations against Next), iril 71. 74-75, 81. 84, 174186 [allegations against Wilhelmina}), and (C) failed to provide plaintiff with complete, timely records of \vork (see id Next],~'[ ,,I 158-160 [allegations against Click I, iii! 138-139 [allegations against 88-90 !allegations against Wilhelmina I). Plaintiff asserts five causes of action against defendants: ( 1) failure to pay wages under New York Lahor Law, Article 6 ("'NYLL''); (2) unlawful wage deductions under NYLL. Section 193: (3) failure to furnish accurate wage statements in violation of NYLL, Section 195(3 ); ( 4) breach of contract: and (5 ), in the alternative to the claim for breach of contract, breach of impliedin-law conlract. II. DISCUSSION A. Breach of Contract Clllim I. Arguments All defendants argue that plaintiffs breach of contract claim fails to meet the notice pleading requirements of CPLR 3013 (see NYSCEF Doc. No. 73 ["Click Sup''J at 5; NYSCEF Doc. No. 62 ["Next Sup"l at 10-11: NYSCEF Doc. No. 72 l"Wilhelmina Sup"j al 7-8). Both Click and Wilhelmina urge that the court should apply the same reasoning that led to dismissal of the breach of contract claim against Elite in the Shanklin case (Click Sup at 5, citing Shanklin I at 3637; \Vilhelmina Sup at 7-8 [same]). Wilhelmina argues lhat plaintiffs claim should be dismissed for failure to "allege the breach of any partirnlar contractual provision" (Wilhelmina Sup at 7, quoting Feld v Apple Bank fhr Sav .. 116 ADJd 549, 550 llst Dept 20141 [dismissing breach of contract claim]), and Next an<l Wilhelmina both contend that plaintiff has failed to allege any specific unpaid usages (id at 7-8; Next Sup at I I). Next notes that, although Littlr specifically alleges she was not paid for a usage she discovered on the website Buzzfeed, under P'7r contract with Next "[Little] authorizes Next to sign [Littlc]'s name and to grant others the right to use LLittlel"s name, picture and likeness" (Next Sup al I I, quoting NYSCEF Doc. No. 69 r"Next Agreement"] at 6). Next argues that the contract does not require Next to pay I,ittle for such usage. Page 2of15 3 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 3] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 Additionally, Next argues this claim faH!1 in that plaintiff did not plead that she complied with the notice and cure provision of her conti•::-,ct (Next Sup at 12, citing Next Agreement at 5 !providing that in "the event of a breach of this Agreement, the non-breaching party shall give written notice to the breaching party of the circumstances of the breach and shall provide, if feasible, at least 14 days within which the alleged breaching party may cure such breach"']). Finally, to the cxk:nt plaintiff alleges she was not paid for work performed, Next argues her breach of contract c1aim is duplicative of her NYLL claim and represents an "attempt at circumventing the NYLL" (id. at 12- J 3 ). Plaintiff responds that she has satisfied CPLR 3013, - noting, \vith respect to each defendant, at least one example of a specific allegation of nonpayment (see NYSCEF Doc. No. 78 ['"Opp to Click'"] at 4-6, citing FAC ~ 156 [alleging with respect to Click that "in 2012 Ms. Little was promised (but never received) merchandise she was to be paid in exchange for walking a runway show for designer Stephen Burrows''); NYSCEF Doc. No. 79 ["Opp to Next""! at 5-7, citing FAC iiil 132-133, 136 [alleging Next's practice of withholding payments, and improper deductions and Little's discovery on Buzzfeed of her image from shoot booked by Next and Next's failure to pay for that Usage]; and NYSCEF Doc. No. 80 [''Opp to Wilhelmina''] at 5-7, citing FAC ilil 7 4, 78-85 [alleging Wilhelmina's practice of withholding payments, improper deductions and numerous specific instances of "belated paymcnts"J). With respect to Next and Wilhelmina only, plaintiff also contends that this court has held that "similar allegations arc su11icient to state a claim for breach of contract (Opp to Next at 6, citing Shunk/in I at 12 ffinding that plaintiffs' allegations that they discovered or suspect re-usages after they were no longer being paid by Wilhelmina raised "an inlerence that monies were withheld suHicient to withstand a motion to dismiss" j and Shanklin II at 3 7 [noting that the court had already held in Shanklin I that plaintiff Almonte sufficiently alleged specific instances of Usage for which she was not paid]). Plaintiff also argues that, as this court held with respect to some of the ,\'hank/in plaintiffc;;' t isage claims, since the "foll details of defendant[s'] breaches are likely to be •.vithin ftheirJ sole possession," plaintiff should not be required to plead the specific transactions for which she was not paid (sec e.g. Opp to Click at 5-6, citing Shunk/in I at 12- t 3 [noting that "specific details of the extent ofany licensing of Shanklin' s images are within the exclusive control of the" advertising agency defendants and allowing limited disclosure regarding re-usages] and Shanklin JJ at 3 [referencing decision in Shanklin Jj). Plaintiff contends she su11icicntly alleged facts that may Page 3of15 4 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 4] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 exist within defendants' control, such that, at minimum, the motions should be denied under CPLR 321 l (d) to allow her to obtain disclosure regarding unpaid usages (see e.g. id., citing FAC ii 55 2 ). Regarding the Next Agreement, plaintiff first t:ontcnds that her entitlement to payment for usage is expressly provided for through the definition of .. Income," which includes amounts paid "directly or indirectly ... as a result of arrangements for Model's services and from arrangements fi.)r the use of the Model Identification" (Opp to Next at 4-5, citing Next Agreement at 2, 3). Regarding Next's reliance on the notice provision of the agreement, plaintiff also argues that this court "has already rejected similar arguments from other defendants in Shanklin I and ,)'hank/in If' (id. at 7-8. citing Shanklin I at 13-14 [rejecting similar argument from defendant Que on the basis that, since plaintiff had alleged that information regarding re-usages were within Que's knovdedgc and control, he could not be expected to give notice] and Shanklin II at 37 [noting that the court had already held in Shanklin I that plaintiff Almonte sufficiently alleged the specific usage for which she was not paidl). Plaintiff additionally argues that. at a minimum, notice would have been futile with respect to Buzzfeed's use of her photo, since Next has ''repeatedly demonstrated that it does not intend to cure any of the breaches identified," by, for example, maintaining that the Next Agreement does not entitle plaintiff to usage (id., citing Special Situations Fund 111. L.P. v Versus Tech., Inc., 227 AD2d 321, 321 p st Dept I 996j fnoting that a "party will be relieved or discharged from the performance of futile acts or conditions precedent, including the tender of payment, upon the failure or refusal by a party to honor its obligations under their contract"]). As to Next's argument that a portion of the breach of contract claim is duplicative of Plaintiffs I.abor Law claim, plaintiff (seemingly misreading this argument as contending the claim should be dismissed in its entirety) argues that Next has used "selective and misleading excerpting'' of plaintiff's claims. Plaintiff contends this claim should not be dismissed as duplicative, since the ··facts at issue with regard to" her breach of contract claim "differ from those underlying'' her labor Jaw claims (id. at 8-9, quoting Ethelherth v Choice Sec. Co., 91 F Supp 3d 339, 362 I ED NY 20151 [finding that plaintiffs claims for breach of contract and unjust enrichment were not 2 Paragraph 55, which is the only paragraph of the FAC cited on this point, states in its entirety: "It is impossible for the Plaintiffs to uncover the full extent of Oefendants' nonpayments and delayed payments without judicial intervention, because each of the Defendants provided its models with inadequate records that concealed the details of the expenses for which the models were charged and the jobs and hours for which they had or had not been paid, and because each of the Detendants rebuffed Plaintiffs' inquiries regarding the non-payments and delayed payments. Defendants' conduct has prevented Plaintiff<; from discovering the full extent of the non-payments, and this conduct was the cause of any delay by Plaintiffs in bringing this action 10 recover payments that were due." Page 4of15 5 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 5] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 duplicative of claims under NYLL where they were not ·•grounded in the same facts" but dismissing them to the extent they sought recovery of overtime wages since "such claims arc premised on the same facts" as the NYLL claim]). Finally, regarding Wilhelmina's argument that plaintiff failed to identify a specific contractual provision that was breached, plaintiff contends first that this argument "is patently incorrect, as this Court has already held" (Opp to Wilhelmina at 4, citing Shanklin I at 10 (finding that the complaint at issue "clearly alleges which contract term \·vas breached: the [defendants'! obligation to pay the models for usages"]). Plaintiff also argues that Paragraph 2 of her contract with Wilhelmina provides for Wilhelmina's contractual obligation to pay plaintiff for usages (id at 5, citing NYSCEF Doc. No. 82 [''Wilhelmina Agrecmenr'J ~ 2 ["Monies owed to Model from clients or advertising agencies, including, without limitation, monies owed for cancellation foes, expenses, and foreign billings, will be paid to Model when payment is received by Wilhelmina. Wilhelmina will take all reasonable steps to collect the amounts due from clients for Model's services.'' J). In reply, Click argues that plaintiffs sole particularized allegation - that Click failed to give her merchandise she was to be paid in exchange for the Stephen Burrow runway show (see FAC if 156) - fails because (l) neither the value of the merchandise, nor what the merchandise was to be. is alleged (NYSCEF Doc. No. 84 !"Click Reply"! at &) (2) there is no allegation that Click was obligated to collect the merchandise for plaintiff (id at 8-9) and (3) the contract provided that Click would be entitled to a 20% fee, and would have the authority to "[c]ollcct and receive sums payable to Talent" (as opposed to "mercbndise" payable) (id. at 9, citing NYSCEF Doc. No. 86 [''Click A&rreement"] §§ 3, 4). Next argues that plaintiff's attempt to rely on the discovery of her image on Buzzfee<l fails in that Buzzfeed's use of her image docs not demonstrate breach by Next (NYSCEF Doc. No. 83 [''Next Reply"] at 2-3). Next argues plaintiff must show she is entitled to payment from Next presumably through allegations foreclosing the possibility that the usage was not unauthorized. On whether plaintiff's breach of contract claim is partially dup1icative, defendant argues that neither the complaint nor p!aintiff s opposition papers demonstrate ho\v these claims differ (id. at 3). Next also notes that the court in J:,'thelberth (91 F Supp 3d at 339) dismissed a portion of a breach of contract claim on the basis that it was duplicative of the NYJ ,L claim. Page:; of 15 6 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 6] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 13oth Click and Next contend plaintiff's attempt to rely on CPLR 3211 (d) fails on the basis that, under CPLR 3211 (d) ''affidavits in opposition to the motion" must be submitted for this provision to apply (Click Reply at 9; see also Next Reply at 3-4). The court notes however, that none of the authorities relied on demonstrates that the plaintiff must offer an affidavit specifically, as opposed to the complaint itself (see Copp v Ramirez, 62 AD3d 23, 31-32 [I st Dept 2009] [looking to plaintiffs complaint and affidavits to determine whether "facts essential to justify opposition may exist, but cannot now be stated'']: Al Rushaid v Pictel & Cie, 28 NYJd 316, 343 n 2 12016]). 3 Next also argues that plaintiff has failed to demonstrate that facts exist but cannot be stated (Next Reply at 3 ). \Vilhelmina contends that none of plaintiffs particularized allegations against it arc sufficient. Regarding plaintiff's allegations of '"delayed'' payments (FAC ,, 76-87), Wilhelmina argues that there is no ''timeliness'' provision in plaintiffs contract that \vould make this a breach (NYSCEF Doc. No. 87 I"Wilhelmina Reply"] at 2, citing Wilhelmina Agreement ii 2 [providing lhat Wilhelmina "shall remit to Model the net due to Model after deductions" with no provision regarding timeframc for paymentJ). Regarding plaintiffs allegations that she was not paid for bookings, castings, travel and check-ins (FAC ~ 85), Wilhelmina argues there is no contractual provision providing frlr entitlement to these items (Wilhelmina Reply at 2). As to plaintiffs allegation of nonpayment of certain "Bumble and Bumble" goods she was to he paid (along with monetary compensation plaintiff admits she received) (FAC 1f 81 ), Wilhelmina contends that plaintiff has failed to allege (a) that Wilhelmina, as opposed to Bumble and Bumble. agreed lo give her products, (b) specifically which goods were promised, and (c) that Wilhelmina received said goods (Wilhelmina Reply at 3). The court finds that these arguments fail, particularly when plaintiff's allegations arc read with the benefit of every possible inference. Finally, Wilhelmina argues that plaintiff's allegations regarding the failure to pay for usages fails in that as was the case \Vith the claim against Elite in the Shanklin JI order, plaintiff does "not provide any details about any Usage for which [s]hc believes ls]he is owed payment"' (id at 3-4, quoting Shanklin II at 36-37). :i Click also ilrgues thill the paragraph of the FAC on which plaintiff relics has "nothing to do with breach of contract, but instead with 'delayed payments.,,. This attribution misreads the paragraph, which also states that plaintiffs cannot uncover "the full ex.tent of Defendants' nonpayment" (FAC ri 55) Page 6of15 7 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 7] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 2. Analvsis Plaintiffs breach of contract claim is based in part on certain expense deductions made in accordance with contractual clauses that ''were unlawfill and void for the reasons identified in the labor laws" (FAC ~ 199). Thus, Next is correct that, in part, this claim is duplicative of plaintiffs claim for unlav.ful deductions. Accordingly, to the extent plaintiff seeks to base this claim on expense deductions, the claim fails. The FAC fails to satisfy the notice pleading requirements of CPLR 3013 with respect to Click. Plaintiff's sole particularized allegation regarding nonpayment of merchandise does not comport with the terms of the Click Agreement. Accordingly, the breach of contract the claim must be dismissed as to Click. In contrast, with respect to Next, the FAC sufficiently alleges an instance of usage for which she was not paid. As discussed in Shanklin I, such an allegation '"raises an inference that monies \Vere withheld sufficient to withstand a motion to dismiss" (Shanklin I at 12). Granting plaintiff every necessary inference, the allegations regarding Buzzfeed's usage are sufficient to demonstrate that plaintiff would have been entitled to payment. As was also the case in Shanklin I, the contractual notice provisions in the Next Agreement do not preclude plaintifrs claim as information regarding re-usages are within Next's knowledge and control (see hi. at 13-14). The branch of the motion seeking dismissal of the breach of contract claim against Next shall be denied. The f AC contains no particularized allegations regarding re-usages with respect to Wilhelmina. Plaintiffs attempt to rely on delayed payments fails in that the contract itself contains no requirements regarding the timeliness of payments. Although plaintiff alleges that the delay violated the "duty of good faith and fair dealing incorporated into the contracts'' (F AC 'I 198), the facts alleged do not show Wilhelmina sought to prevent performance of the contract or to withhold its benefits from plaintiff (see Aventine Inv. M..~mt., Inc. v Can. Imperial Bank of Communications Inc., 265 AD2d 513, 514 [2d Dept I 999j). The court will dismiss the breach of contract claim as pleaded against Wilhelmina. except lo the extent that claim arises out of the purported nonpayment of''Bumble and Bumble" goods (see FAC if 81). B. Claim for Breac/J of Implied-i11-Law Co11tract I. Arguments Click and Wilhelmina contend that plaintiff's claim for breach of implied-in-law contract should be dismissed as duplicative of her breach of contract claim (see Click Sup at 6; Wilhelmina Page 7 of15 8 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 8] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 Sup at l 5-16. citing e.g. Shanklin II at 33-36 [dismissing "[a]ll of the plaintiflS' enrichment ... claims" as "precluded by their express '>vritten unjust contracts"). 4 In opposition, plaintiff concedes that hoth claims arise out of the same facts and circumstances, but argues that the claim is duplicative only "if this Court rules that lhe parties' contract entitled Ms. Little to payment for usages occurring after the contract's expiration" (Opp 10 Click al 6-7; Opp lo Wilhelmina at 7-8). 2. £\nalysis The determination of whether a quasi-contractual claim such as unjust enrichment should he dismissed as duplicative looks only to whether there is "a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties·· (Clark-Fitzpatrick. Inc. v fong Is. R. Co., 70 NY2d 382, 389 [1987j; see also Georgia Malone & Co., Inc. v Rieder, 86 A D3d 406, 408 [l st Dept 20111 lnoting that ''[u ]njust enriclunent is a quasi contract theory of recovery"'J), and not whether plaintiff may recover under that contract. Each of the contracts at issue contains provisions showing that the agreements apply, not just to compensation received during the term of the contract, but afterwards as 'well (see Click Agreement at "FOURTH" rproviding Click is entitled to 20% of "Talent's gross compensation, paid and/or payable, during or after the term or terms hereof'; Next Agreement at 2 f"[iJncome shall also mean and include amounts which arc payable with respect to the Management Period and vvith respect to any period after the Management Period, whether or not actually received during the Management Period'']; Wilhelmina Agreement ii 6 ["Any contracts for future usage ... shall be handled by Wilhelmina .. .''I). Accordingly, this claim shall be in its entirety. C. Claim~· Under New York Labor Law I. Arguments Defendants contend that plaintiffs first cause of action - a NYLL claim f<.ir failure to pay wages - should be dismissed for failure to allege, among other things, the hours plaintiff \'.rorked, the amounts owed, or a specific instance of a late payment (Click Sup at 5, citing S'hankhn If at 15-27 [dismissing similar claim "because it fail'.' to set forth the hours that Perron, or any of the other plaintiff models worked, and the pay or salary that they receivedJ: Next Sup at 8-9; 4 Ncxt's sole argument on this claim is that "'based on the forgoing" arguments on plaintiff's breach claim, "the hrcad1 or imp!icd-in-fac1 c.ontract must also fail" (Next Sup at 13 ). Page 8 of15 9 of 16 or contract [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 9] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 Wilhelmina Sup al 9-10). 1 Wilhelmina also notes that plaintiff uoes not allege "when Wilhelmina received funds from its clients with respect to her alleged 'late· payments" (Wilhelmina Sup at 910). Next also argues that all Labor Law claims fail because plaintiff did not specifically allege the \-Vork she did was performed in New York (Next Sup at 9). However, the authority on which Next relies establishes only that the NYLL has no extraterritorial effect, not that plaintiff must specifically plead that the work was conducted in New York (see O'Neill v Mermaid Touring Inc .. 968 f Supp 2d 572, 579 [SD NY 2013J [dismissing on summary judgment NYLL claim "to the extent that Plaintiff seeks recovery under the Ni:w York Labor Law for overtime work performed outside of New York'']; 1\,far;nuson v lv'ewman, 21 Wage & Hour Cas 2d (RNA) 713 fSD NY Sept. 25. 2013] fsame]). Wilhelmina also argues that all NYLL claims should be dismissed because plaintiff'·dojes] not allege that Wilhelmina exercised the control indicative of an employer" (Wilhelmina Sup at 89, citing Shanklin II at 21 [discussion of factors for determining whether there is an employment relationship under NYLL]). However, Wilhelmina also acknowledges that "the Court denied the defendants' motions to dismiss on these grounds in [Shanklin IJJ" and states that it ''reiterates this argument to preserve it for appellate review" (id at 8 n 3). In opposition, plaintiff contends her allegations relating to defendants' control are substantially the same as the allegations this court held were sufficient to establish the requisite control in Shanklin JI (Opp to Click at 7-8, citing Shanklin II at 25; Opp to Wilhelmina at 8-10). Regarding Ncxt's argument that this court dismissed a claim based on similar allegations in Shanklin IL plaintiff "respectfolly submits that these parts of the Court's decision in Shanklin JI were in error, and notes that plaintiffs in that action are currently appealing that decision to the rirst Department" (Opp lo Next at 11 ). In opposition to Click's motion, plaintiff contends she has alleged Click's violations with sufficient particularity (Opp to Click at 8-9). She cites her allegations that "Click routinely waited more than one month before paying Ms. Little for work she had performed" and otherwise "failed to provide Ms. Little with payment for ... work she perfrlrmed at Click's direction or for its 5 To the extent plaintiff seeks 10 base this claim on usages. Next also notes that this court has already held that u:>ages arc not wages under the NYLL (Next Sup at 8-9. citing Shanklin JI at 16-18). In opposition, plaintiff ·'respect folly submits that these parts of the Court's decision in Shanklin II were in error, and notes that plaintiffs in that actiDn are currently appealing \hat decision tn the First Department" (Opp to Next at I l ). Page 9of15 10 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 10] NYSCEF DOC. NO. 115 hcnefit'" (id. quoting FAC INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 iJii 155-57). 6 Plaintiff contends "numerous New York courts have upheld claims under Section 191 based on substantially similar allegations or evidence of delayed payments or non-payments., (id. at 8-9, citing Bdizuire v RAV Investigative and Sec. ,)'ervices Ltd., 6 l F Supp 3d 336, 353 [SD NY 2014 J [claim under N YLL § 652 ( l) sufficiently pleaded where plaintiff alleged "(l) he was regularly unpaid, or underpaid, by Defendant (i.e., that Defendant did not pay him the agreed-upon (i.e., 'correcC) amount for which Plaintiff was to be paid for his work); (2) Defendant often delayed in providing his paychecks; and (3) many of the paychecks provided by Plaintiff hounced, thereby causing further underpayment or delay in payment''); Gaughan v Rubenstein, 261 F Supp 3d 390, 426 lSD NY 2017] [granting motion to amend where '·[ajccepting Plaintiffa allegations as true. including ... Defendants' delay in paying Plaintiff her \vages, either by failing to issue paychecks or by forward-dating her paychecks,'' plaintiff sufficiently alleged violations of ''the prompt payment requirements of the FLSA and NYLL"J; Qiu Hua f'an v Voyage Erpress Inc., 15CV6202RJDRML, 2017 WL 2334969, at *4 [ED NY May 25, 20171 [granting motion for default judgment on claim under NYLL § 191 (d) on allegations that '"defendants withheld $1,620 in earned wages [andl wages of$4,385"J7). Plaintiff also contends that her pleading burden is reduced because she has alleged Click failed to maintain accurate payroll records (id. at 9, citing F AC 1 I 58 [alleging failure "to provide Ms. Little with complete and timely records of the work she performed" such as through wage statements which did not provide complete descriptions of the clients association with each job and failed lo include work plaintiff performed '"but for which Click did not pay her, including attending castings, meetings, and test shoots'' and so forth] and Carroll v Tangier. U,C 46 Misc 3d 148(A) I App Tenn, l st Dept 20151 rfinding that the record established that defendant ·'failed to comply with its statutory obligation to preserve complete and accurate payroll records ... thereby entitling plaintiff to the benefit of a reduced burden of proof with regard to these unpaid wage claims"]) . .-. Plaintiff also contends she has alleged "specific examples of non-payment'" by way or her allegation of nonpayment of merchandise she was to receive in exchange for the Stephen Burrows show (Click Opp at 8). This allegation fails in that, as stated above, il does not comport with the terms of the Click Agreement. ' PlaintilT also cites Jara 1· Strong Steel Door. Inc. (58 AD3d 600, 602 [2d Dept 2009 J), hut that case docs not involve the NY! J .. Page 10of15 11 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 11] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 Plaintiff also disputes Wilhelmina's argument that she need allege when Wilhdmina received funds from its clients, noting that she has alleged that one of the terms of Wilhelmina· s agreement was that Wilhelmina \vould control all interactions relating to client payments (Opp to Wilhelmina at I0, citing FAC il, 67-70). Plaintiff argues further that these allegations raise the inference that Wilhelmina received ''or with reasonable effort could have received," timely payments owed from its clients (id.). Accordingly, plaintiff contends "f t]hesc are precisely the sort of facts covered by" CPLR 311 l (d). In reply, Wilhelmina contends that plaintiff's attempt to rely on untimely payments fails since there is no "time requirement concerninr: payment in the agreement covering the parties' relationship" (Wilhelmina Opp at 7). To the extent plaintiff contends Wilhelmina ·'with reasonable effort could have received'' timely payments, Wilhelmina contends plaintiff ''ignores the provision of her modeling agreement that states Wilhelmina's obligation to disburse funds to Little arises only upon receipt of funds" (id at 7, quoting Opp to Wilhelmina at I 0). In its reply, Click argues that plaintiffs only allegation of delay - that "Click routinely waited more than one month before paying Ms. Little for work she had performed"' (FAC iJ 155), falls short under the analysis this court employed in Shanklin II (Click Reply at 5. citing Shanklin II at 27). Click also distinguishes plaintiff's cases on the basis that they involved more detail allegations or evidence. As to Carroll v Tangier.· lLC (46 Misc Jd I 481 A}). the case docs not apply because it involved a summary judgment motion and thus. "at this pleading stage is totally misplaced" since the employer there \.Vould have had the opportunity to negate plaintiff's conclusions (id at 7). 2. Analvsis As this court already held in Shanklin II, plaintiff's allegations regarding defendants· control arc sufficient to withstand Wilhelmina's argument for dismissal of all claims under NYLL In arriving at that determination, this court noted plaintiffs had alleged defendants' control of plaintiffs' schedules, discouraging models from turning down assignments, negotiated the terms and conditions of each modeling assignment, that the contracts were presented on a take-it-orlcave-it basis, and that the exclusive contracts the models had entered into prohibited them from working with any other manager or agency in that region (see Shanklin JJ at 23-25). As summarized above, plaintiff makes substantially the same allegations \vith respect to each Page 11of15 12 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 12] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 defendant here. Wilhelmina concedes this point, noting that it offers this argument simply to preserve it for appeal. The motion is denied in this respect Plaintiff's first cause of action alleges various violations of NYLL § t 91 arising out of two general claims ''[t]irsl, fthatJ Defendants failed to pay the Plaintiffs and members of the Classes weekly, or in accordance with the terms of their agreements, or even semi-monthly" and ''f sjeeond, (thatJ Defendants failed to pay Plaintiffs and the other members of the Classes the wages they earned and were due for the modeling assignments by making numerous unlawful and unauthorized deductions from Plaintiffs' paychecks." Neither is sufficient to withstand dismissal. The second basis fails in that it is duplicative of plaintiff's second cause of action for unlawful wage deductions in violation ofNYLL § 193. The first basis fails for the reason described in Shanklin Ji - that plaintiff ·'faillsJ to allege facts from which to determine the transactions or occurrences for which plaintit11] allcge[s she was] not paid, or [\vasj paid late" (Shanklin II at 27). As discussed above, plaintiffs allegations of non-payment fails on this basis. Plaintiffs allegations of delayed payments by Next and Click are wholly conclusory and fare no better (see FAC ii 134 [alleging only that "Next routinely waited more than one month before paying Ms. Little for work she had performed for newer clients" I , 155 [alleging only that "Id Juring her employment with Click, Click routinely waited more than one month before paying Ms. Little for work she had performed"]). The motion of Click and Next to dismiss the NYLL claim is granted. Because plaintiff makes numerous particularized allegations regarding Wilhelmina's late payments (see f AC ilil 78-85), Wilhelmina ·s motion is denied. The assertion that this claim is barred by the absence of any wntraclual provision requiring timely payment fails. Plaintiff's claim here is statutory, not contractual. D. Waiver of Jury Trial mu/ Participation in a Class Action 1. Arguments The Next Agreement provides, in rcleva'1t portion, that: "TllE PARTIES HEREBY WAIVEANYRIGHTTOAJURY TRIAL IN ANY ACTION CO:tvIMENCED RELATING TO Tl IIS AGREEMENT, AND MODEL I IEREBY WAIVES THE RIGHT TO PARTICIPATE IN ANY CLASS ACTION WI I!CH MAY BE COMMENCED AGAINST NEXT RELATING TO THIS AGREEMENT OR NEXT'S SERVICES HEREUNDER" Page 12of15 13 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 13] INDEX NO. 653001/2016 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/09/2018 (Next Agreement at 5-6). Accordingly, Next requests that plaintiff's jury demand be struck (or in the alternative, severed) (Next Sup at 9), and that plaintiff's claim against Next should be severed from the class action to the extent it is not dismissed (id at 7). Next also argues that plaintiff cannot maintain this action as a class action because, first, she seeks penalties, which are barred under CPLR 90l(b) (Next Sup at 4-6, citing Carter v Frito-Lay, Inc., 74 AD2d 550, 551 [1st Dept 1980], qffd, 52 NY2d 994 [1981 l [finding that "that liquidated damages as provided in !NYLL § 198.l-dl ... constitute a penalty"j and NYLL § 198.l-d ffailure to comply with Section 195 entitles employee to recover '"in a civil action damages of two hundred fifty dollars for each \vork day that the violations occurred or continue to occur"J), and second, because plaintiffs' claims raise ·'questions oflaw and fact affecting the particular class members lthatj would not be common to the class proposed" (id. at 6-7, quoting Bay tree Capital Assoc., LLC v AT&T Corp., 10 Misc 3d I 053(A) [Sup Ct 2005]). In opposition. plaintiff notes first that the First Department has held that the contractual waiver of class actions is unenforceable (Opp to Next at 12, citing Gold v New York L(fe Ins. Co., 153 AD3d 216, 225 [lst Dept 20171,judgment entered 62 NYS3d 260 [lst Dept 2017]). Regarding Next's argument under CPLR 901 (b), plaintiff argues that New York courts have repeatedly upheld class actions that do not seek disallowed damages, since class members who wish lo seek those damages may opt-out (id at 13, citing e.g. Pesantez v Boyle Envll Services, Inc.. 25 I AD2d 11. 12 [1st Dept 1998J [affirming class certification and noting that to ''the extent certain individuals may wish to pursue punitive daims pursuant to Labor L;nv § l 98( 1-a), which cannot be maintained in a class action [under CPLR 90 I [bll they may opt out of the class action"l). Regarding Next's argument that plaintiffs claims are too individualized to be brought as a class action. plaintiff notes that dismissal on this basis, before a motion and hearing under CPLR 902, may be made only where "it appears conclusively from the complaint and from the a1Tidavits that there was as a matter oflaw no basis for class action relief' (id. at 14, quoting Downin~ v Firs/ Lenox Terrace Assoc.. I 07 AD 3d 86, 91 l l st Dept 2013 ], qffd sub nom. Borden v .JOO E. 5 5th SI. Assa<-·., L.I'., 24 NY3d 382 [2014]). Additionally, plaintiff argues that the "overwhelming majority of case law from the First Department and from other New York courts" weighs against dismissing class action allegations al this stage (id citing e.g Downing, I07 AD3d at 91 ). Page 13 oflS 14 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 14] NYSCEF DOC. NO. 115 INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 Finally. plaintiff argues that the issue of jury trial waiver should be addressed at the class certification stage, since depending on \Vhat discovery shows, plaintiffs contract may be unique in including a jury waiver clause, which will he an issue for the court to consider in determining her adequacy as a class representative (id at 15 ). fn the event discovery shows other class members· contracts contain similar clauses, plaintiff agrees that the request for a jury trial should be vacated as to the class plaintiff represents (id). 2. Analysis Although plaintiff is correct that, under First Department precedent, class action waivers arc unenforceable. the Supreme Court of the United Stales is currently considering this very issue. Accordingly. because a decision from that court is imminent and may prove dispositive on this issue, the court will reserve decision and await a ruling of that court. For the reasons offered in plaintiffs opposition. the court \\till defer ruling on the request lo strike the jury demand as well. E. Dismissal U11der CPLR 32JJ(a)(4) Click argues that dismissal is warranted under CPLR 3211(a)(4) since both this action and Shanklin "arise out of the same subject matter or series of alleged wrongs'' (Click Sup at 4-5, 4uoting Cherico, Cherico & Assoc. v Afidollo. 67 AD3d 622. 622 f2d Dept 2009]). In opposition. plaintiff contends, first. that New York courts '"have routinely denied motions lo dismiss fon this basis] where substantially identical class action proceedings \Vere already pending" (Opp to Click at I 0, citing e.g. In re NYSE t:uronexl Shareholders/ICE Utig., 39 Misc 3d 619, 623fSupCt1013]). Plaintiff also argues that since there is not yet a certified class in Shanklin. it would violate plaintiff's due process rights to "preemptively extinguish her capacity to sue'' (id citing Hansherry v Lee, 311 US 32, 45, 61 S Ct I 15, l 20, 85 L Ed 22 [ 1940] [class action must ·'afford that protection lo absent parties which due process require''J). Plaintiff also argues thal there arc '"impottant difference hetwccn the l\\iO cases" by way of the specific factual allegations plaintiff makes as to Click ·s wrongdoings (id). Finally, plaintiff urges that, since dismissal under CPLR 32l l(a)(4) is discretionary, to the extent this court finds overlap between the two cases. this court should consolidate the cases rather than dismiss this one. As both parties recognize. under CPLR 321 l(a)(4) ""the court need not dismiss upon this ground but may make such order as justice requires.'' To this end, the court will address any potential overlap between the two cases upon a proper motion for consolidation. Page 14 of15 15 of 16 [*FILED: NEW YORK COUNTY CLERK 05/09/2018 02:53 PM 15] NYSCEF DOC. NO. 115 HJ. INDEX NO. 653001/2016 RECEIVED NYSCEF: 05/09/2018 CONCLUSION For the forgoing reasons, the motions arc denied except to the extent of dismissing count one, as pleaded against Click and Next, count four as pleaded against Click, and count live in its entirety. The court reserves decision on the issue of whether plaintiff waived the right to pursue a class action or to a jury trial against Next. The court has considered defendants' remaining arguments and tinds them unavailing. This wnstitutes the decision and order of the court. DATED: May 9, 2018 ENT EI~, 0 PETER~WOOD .J.S.C. • .?. ~.ta" w 0. Page 15of15 16 of 16 ee(? .

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