Vega v CM & Assoc., Constr. Mgt. Ltd. Liab. Co.

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Vega v CM & Assoc., Constr. Mgt. Ltd. Liab. Co. 2018 NY Slip Op 30979(U) May 14, 2018 Supreme Court, Bronx County Docket Number: 23559/2016E Judge: Ruben Franco 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: BRONX COUNTY CLERK 05/15/2018 04:15 PM 1] NYSCEF DOC. NO. 18 INDEX NO. 23559/2016E RECEIVED NYSCEF: 05/15/2018 SUPREME COURT OF THE STA TE OF NEW YORK COUN TY OF BRONX : PART 26 ------------------------------------------------------------------)( Irma Vega, Indi vidually and on behalf of all others similarly situated, Plaintiff, Index No: 23559/ 20 l 6E -aga instDECISION/ORDER CM and Associates Construction Management Limited Liabi lity Company, Defendant. ---------------------------------------------------------------)( HON. R UBEN FRANCO: This is a wage claim action brought by plaintiff on behalf of herself and putati ve class members to recover liquidated damages for untimely wage payments. Defendant seeks di smissal of the action pursuant to CPLR § 32 11 (a)(7), claiming that the Complaint fail s to state a cause of acti on. Plaintiff Irma Vega ("Vega") commenced this action on behalf of herself and ··a class of other similarly situated current and fo rmer employees who were empl oyed by [defendant] as manual workers, w ithin the six-year period preceding the filing of this action to the date of di spositi on of this action." Vega was employed by defendant from May 2014 through September 20 15, as a construction worker/ laborer perfotming manual and physical work (see Labor Law § J 90[4]; see generally People v. lnterborough Rapid Transit Co., 169 AD 32 [I 51 Dept 191 5]). Plaintiff a lleges that although defendant was statutorily obligated to pay all wages, including overtime, on a week ly basis, plaintiff and the purported class members she represents were paid on a bi-weekl y basis, in violation of Labor Law§ 191 ( l )(a). She further claims that she (and the class members) is entitl ed 2 of 6 [*FILED: BRONX COUNTY CLERK 05/15/2018 04:15 PM 2] NYSCEF DOC. NO. 18 INDEX NO. 23559/2016E RECEIVED NYSCEF: 05/15/2018 to recover from defendant " max imum liquidated damages . .. , and interest on wages paid later than weekly, plus attorneys' fees, and costs of the action, pursuant to Labor Law§ 198." She also asserts that she and the purported class are entitl ed to declaratory judgment relief: a declaration that defendant' s "conduct . .. including its policy/practice of paying its manual workers later than weekl y, to be in viol ation of the rights of Plaintiff and the class, under the New York Labo r Law § 190 et. seq., including § 19 1, and [seeks to] enjo in Defendant from co ntinuing these vio latio ns.,. Defendant contends that there is no private right of action for alleged vio lations of Labo r Law § 19 1 and/or 198 et. seq., therefore, plaintiffs Complaint must be di smissed fo r fa ilure to state a cause of action. The black letter law on a motio n to dismiss pursuant to C PLR § 32 11 (a)(7), as enunciated by the Court of Appeals and the Appellate Division of this Department is as fo llows: The court must afford the plead ings a li beral construction (see Simkin v. Blank, 80 AD3d 40 1 [1 51 Dept 20 11] . Importantly, the court must accept the facts all eged in the pleading as true and accord the opponent of the moti on, here plaintiffs, the be nefit of every possible favorable inference to determine only w hether the facts as alleged fit w ithin any cognizable legal theory (Leon v. Martinez, 84 NY2d 83 [1 994]). The motio n must be denied if from the plead ings' fo ur com ers, factual allegations are discerned which taken together mani fest any cause of actio n cognizable at law (5 11 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]) . The criterion is w hether the proponent of the pleading has a cause of action, not whether he has stated one (see Siegmund Strauss. Inc. v. E. 149th Realty Corp., 104 A D3d 40 1[1st De pt 201 3]). However, where a defendant submits evidence in support of its motio n to dismiss, and that evidence establi shes that plaintiff has no cause of action (i.e. , that a cla im is fl atly rej ected by the evidence), dismi ssal is a ppropriate (see Basis 2 3 of 6 [*FILED: BRONX COUNTY CLERK 05/15/2018 04:15 PM 3] NYSCEF DOC. NO. 18 INDEX NO. 23559/2016E RECEIVED NYSCEF: 05/15/2018 Yield A lpha Fund v. Goldman Sachs. 115 AD3d 128 [!51 Dept2014)). Inasmuch as plaintiff seeks a j udgment declari ng that defendant's policy of paying manual workers less frequently than as required by Labor Law § 19 1, the Court no tes that "[a] motion to dismiss a declaratory judgment action prio r to the service of an answer presents for consideration onl y the issue of whether a cause of acti o n for declaratory relief is set fort h, not the question of whether the p lainti ff is entitled to a favorab le declaration. As such, where a cause of act ion is suffic ient to invoke the court's power to render a declaratory judgment ... as to the rights and other legal relations of the parties to a justiciable controversy. a motion to dismiss that cause of act ion should be denied" ru. Ovster Bay Bavmen's Ass'n v. Town of Oyster Bay, 130 AD3d 885. 890 [2"d Dept 20 15][intemal citations om itted]; see Jacobs v. Cartalemi , 156 AD3d 635, 640 [2"d Dept 20 17]: Kaplan v. State. 14 7 AD3d 1315 [4 1h Dept 20 17)). Labor Law § 19 1[1 ][a] requires that manual worker~ be " paid weekly and not later than seven ca lendar days after the end of the week in which wages are earned." It is undi sputed that defendant fai led to pay plaintiff (and possibly putative class members) on a weekly basis. as required by statute. De fendant admits wages were in fac t paid to plaintiff on a bi-week ly basis. Further, plaintiff. in opposition. submits pay stubs as evidence to support her claim that wages were not paid earl ier than the two weeks after the end of the period in which those wages were earned (see IKEA U.S. Inc. v. Indus. Bd. of Appeals, 241 AD2d 454 [2"d Dept 1997] ; Wing Kwong Ho v. Target Const. of N Y. Corp.. 20 11 WL 11 3 151 0 [E.D.N.Y. 20 11]; C uzco v. Orion Builders, Inc., 20 10 WL 2 143662 [S.D.N. Y. 20 1O]). Labor Law § 198( 1-a) provides that: " [i]n any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevai ls. the court shall all ow 3 4 of 6 [*FILED: BRONX COUNTY CLERK 05/15/2018 04:15 PM 4] NYSCEF DOC. NO. 18 INDEX NO. 23559/2016E RECEIVED NYSCEF: 05/15/2018 such employee to recover the full amount of any underpayment, all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer provides a good faith basis to believe that its underpayment of wages was in compl iance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of wages found to be due .. : · Defendant contends that a pri vate right of action under the statute is not cognizable (see Sheehy v. Big Flats Community Day. Inc., 73 NY2d 629, 633 (1989]). Jn determining whether a private right of action may be implied, courts must consider three factors: "( l ) whether the plainti ff is one of the class for whose particular benefit the statute was enacted ; (2) whether recognition of a private right of action would promote the legislative purpose; and, (3) whether creation of such a right would be consistent with the legislati ve scheme" (Id). First, it is undisputed that plaintiff is a manual worker as classified under Labor Law § 190. As to the second and third requirements set forth in Sheehv, a private right of action under Labor Law§ 19 1[ 1] [a] would promote the legislati ve purpose, and would be consistent with the legis lati ve intent of Labor Law Article 6. The terms of the statute indicate that wage c laims are permissibl e whether they are asserted by an individual , or by the Commissioner. Labor Law§ 198 pertains to costs and remedies, permitting for the recovery of costs and legal fees " [i]n any action instituted upon a wage claim by an employee or the commissioner·' (Labor Law § 198[1 ], [I- a]). Moreover, the statute all ows retroactive recovery of wages "whether such action is instituted by the employee or by the commissioner.. (Labor Law § 198[3]). U nder Labor Law § 196, the Commissioner has di scretion, but is not required to, consider a claim. Fi na lly, co urts have permitted indiv idua l em ployees to recover on wage claims prosecuted under vari ous provisions within Labor Law Arti cle 4 5 of 6 [*FILED: BRONX COUNTY CLERK 05/15/2018 04:15 PM 5] NYSCEF DOC. NO. 18 INDEX NO. 23559/2016E RECEIVED NYSCEF: 05/15/2018 6 (see e.g. Bonito v. Avalon Partners, Inc., 106 AD3d 625 , 626 ( l51 Dept 2013]; Nawrocki v. Prot Const. & Development Corp., 82 AD3d 534 [I 51 Dept 2011]; AHA Sales, Inc. v. Creati ve Bath Prod .. Inc., 58 AD3d 6, 16-17 [2"d Dept 2008] ; Dwyer v. Bw-lington Broadcasters, 295 AD2d 745 [3rdDept 2002]; Slotnick v. RBL Agency, 27 1 AD2d365 [ I51 Dept 2000]; Wing Wong v. King Sun Yee. 262 AD2d 254, 255 [1 51 Dept 1999] ; Lauria v. Heffernan, 607 F.Supp.2d 403 , 409 (E. D.N.Y. 2009]). Accordingly, the second and third factors of the Sheehy test have been satisfi ed thus, a private right of action under Labor Law § l 9 1 is cogn izable. The court need not determine whether there is evidentiary support for the Complaint, but rather. whether the plaintiff has alleged a cogni zable cause of action. Nor must the court evaluate the merits of the case on a motion to dismi ss for legal insuffic iency (see, Parekh v. Cain, supra; Leon v. Martinez. 84 NY2d 83 [1 994]; 2 19 Broadway Corp. v. Alexander's Inc., 46 NY2d 506 [1979]; Carbillano v. Ross, 108 AD2d 776 (2d Dept 1985]). The court finds that plaintiff has sufficiently stated a cause of action for relief pursuant to Labor Law§§ 19 1 and 198. Accordingly, defendant' s motion is denied. T his constitutes the decision and order of the court. [L(b:_J~ Dated: May 14. 2018 Ruben Franco, J.S.C. HON. RUBEN FRANCO 5 6 of 6

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