Hunter v Planned Bldg. Servs., Inc.

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Hunter v Planned Bldg. Servs., Inc. 2018 NY Slip Op 31541(U) June 11, 2018 Supreme Court, Queens County Docket Number: 715053/2017 Judge: Ulysses B. Leverett 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: QUEENS COUNTY CLERK 06/20/2018 01:40 PM 1] INDEX NO. 715053/2017 NYSCEF DOC. NO. 29 FILED : NYSCEF . - RECEIVED NYSCEF: 06/20/2018 QUEENS DOC. NO. CLERK COUNTY 06 2018 20 28 NO. 715053/2017 NYSCEF: 06/20/2018 INDEX AM 14 11: RECEIVED . 1 COURT SUPREME COUNTY OF THE STATE NEW YORK OF QUEENS OF __-..______________________------------------X DAVID HUNTER, others on behalf and individually, of all situated, similarly Plaintiff, -against- Index Motion PLANNED BUILDING SERVICES, 715053/2017 No. No.1 Seq. INC., DECISION/ORDER Defendants. =========================================== HONORABLE Present: B. LEVERETT: ULYSSES Numbered Papers Notice -------(1)----------- of Motion............................ Memorandum in Opposition... ---------(2)--------------- Memorandum in Support.............. ---------(3)------------- Planned Defendant Law and upon law Rules submitted has filed memorandum brought Plaintiff class laborer was paid April after 9, 2011 defendant defendant also did seeks wages later than In a motion the complaint whether accept the factual contradicted and and pursuant plaintiff or accord does 33 A.D.3d not 497 dispute at Lenox Hill legal that of every theory. v. Guinta, until 1 must Court, the 262 accept inference A.D.2d and on all and assertions 463 §198. alleged facts is not (2nd (3) Plaintiff damages however, factual and §195(3). §190 a period of 2003, plaintiff 5 2 of 6 it hired resigned plaintiff in October to are plainly Dept. 1999) as a handyman 2017. in determine required 2006). Dept. in September Hospital Court a (2) §l95(1), to NYLL possible The where inferences See Meyer (1st the and for weekly 6 §191(1)(a)(i), liquidated wages, , a manual of NYLL pursuant §321l(a), the benefit favorable evidence. unpaid fees attorney to CPLR cognizable documentary maintenance cost, accord allegations v. Maurer, §901, than of defendant himself for of NYLL in violation statements to CPLR interest, Art. and plaintiff, (1) based memorandum of law rather Practice complaint damages that in violation notices, Civil defendant's liquidated alleging on a bi-weekly basis, Labor Law (NYLL) wage with any to recover wage fit alleged Defendant perform weekly, and 10/30/2017 York with pursuant to dismiss as true facts by Bishop plaintiff certification class paid of New plaintiff provide not complaint the action dated defendant in violation David memorandum an opposing support of its motion. claim employer to provide failed wage to a complaint by his plaintiff York Hunter's has filed in further this pursuant (7) to New pursuant moves to dismiss refuting Plaintiff of dismissal. a reply putative evidence documentary in support and §321l(a)(1) (CPLR) Inc. Service, Building Plaintiff to [*FILED: QUEENS COUNTY CLERK 06/20/2018 01:40 PM 2] INDEX NO. 715053/2017 NYSCEF DOC. NO. 29 FILED NYSCEF : RECEIVED NYSCEF: 06/20/2018 COUNTY QUEENS DOC. CLERK 14 11: that Copies of defendant's his during Defendant under Plaintiff paid him statements all wages provided 06/20/2018 owed on a biweekly to plaintiff were basis. submitted with to dismiss. OF PAYMENT FREQUENCY action payment biweekly motion defendant's defendant employment, 715053/2017 NYSCEF: RECEIVED asserts NO. INDEX AM| 28 NO. argues VIOLATIONS NYLL that §l91 does not provide plaintiff with a private of cause the of payment provision plaintiff does not allege unpaid wages. where frequency he is entitled cost and attorney to to liquidated fees pursuant damages, interest, for defendant's late wage payments under NYLL §191. claims NYLL §198 NYLL provides §191(1)(a)(i) Defendant does a weekly Airlines plaintiff part, with the following 5289541 Oct. NYLL was laborer, paid defendant However, NYLL §198 but v. Pakistan Hussain to support 2012) 191 198 for section section days after on a bi-weekly cites its assertion 23, or underpaid. unpaid were §191. (E.D.N.Y. under damages if wages a manual plaintiff, by NYLL WL recover only violation that dispute 2012 Corp., can payment not as required basis provisions: A manual worker shall be paid weekly and not later than seven calendar the end of the week in which wages are eamed... i. rather in pertinent Every employer shall pay wages in accordance a. Manual worker l. Int'l /20/2018 06 that of frequency provides, (1-a) in which the In any action instituted in the courts upon a wage claim by an employee or the commissioner all employee prevails, the court shall allow such employee to recover the full amount of any underpayment, reasonable attomey's interest as required under the civil practice law and rules, and prejudgment fees, of wages was in compliance unless the employer proves a good faith basis to believe that its underpayment with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of wages found to be due, except such liquidated damages may be up to three hundred percent of the total of this amount of the wages found to be due for a willful violation of section one hundred ninety-four article. (emphasis asserts Defendant that been has paid that asserts all due. wages eventual defendant's to pay wages by the statutory weekly of wages for wages and a wage claim due a failure underpayment finds Court The plaintiff based has no private of NYLL violation not plaintiff in opposition Plaintiff constituted added) dispute that upon the of action did not enforcement pay NYLL there NYLL the unpaid to a manual provides §198, wages in wages for (1-a) for is no claim weekly mechanism, and §l98 wages of underlying resulting liquidated damages. plus provisions statutory under where §l91(1)(a)(i) defendant the §l91(1)(a)(i), right payment deadline, case interpreting a frequency wages. laborer for due, law that of payment While the as required parties do by NYLL of nonpayment recovery of wages. NYLL where wages, of the wage the attorney total due provides fees, amount plaintiff that prevails §l98 employee shall interest, of the prior and wages any court action instituted on a wage be allowed to recover the full amount in addition liquidated damages equal found to commencement to be due. of this Here action. [2] 2 of 5 3 of 6 defendant claim by an employee of the non-payment to one documented hundred percent payment of all of . '; [*FILED: QUEENS COUNTY CLERK 06/20/2018 01:40 PM 3] INDEX NO. 715053/2017 NYSCEF DOC. NO. 29 (F ILED NYSCEF . : RECEIVED NYSCEF: 06/20/2018 COUNTY QUEENS DOC. NO. CLERK 06 14 11: 2018 / 20 NO. 715053/2017 NYSCEF: 06/20/2018 INDEX AM) RECEIVED 28 . has Plaintiff Standards Act recover by liquidated Rogers plaintiff and (FLSA) solely and 1944) a private right of action there the where clauses provision 26, 2010) and Oct. 23, 2012). The (E.D.N.Y. v. Brooklyn Cir. under the proved Court Sav. 1998). Federal 293 an action N.Y. none of pay Labor to file Bank, However, frequency which hold defendant to (N.Y. 666 of the cited cases of NYLL provision can plaintiff to pay held recover wages v. Orion Builders Inc., Airlines Corp., 2012 Int'l in Hussain that has failed See Cuzco v. Pakistan Hussain the employee wages. cases of NYLL. (May the O'Neil of unpaid plaintiff violated permitted 52 (2d F.3d has cited defendant of payment S.D.N.Y. is no claim of wages courts See e.g. damages. 148 However, underpayment payment late federal the of Troy, where §191(1)(a)(i) where where v. City holds frequency cases cited in pertinent for under the WL 2010 WL or late 2143662, 5289541 part, recovery in this case hinges on his unpaid wages claim under the damages provisions of wages along (1-a), which provides that successful plaintiffs may recover underpayment damages of 100% of the underpaid with reasonable attorney's interest, and liquidated fees, prejudgment wages unless the employer can prove its underpayment was made in good faith. The NYLL contains no Hussain's However, of NYLL §l98 recovery for violations of its provisions regarding frequency of payment and on his claim for unpaid As Hussain has failed to meet the burden for summary judgment he is not entitled to recover under the NYLL at this stage. wages, provision for private recordkeeping. While of wages Court the liquidated in NYLL provided and his the where §195 L Plaintiff asserts the that because April not the §198 of Labor to NYLL pursuant paid previously though for non-failure §218(1), here is not which untimely not a private find alleged has not of action right wages unpaid for of NYLL violation damages of liquidated exclusive employer failed in pertinent initial to provide part notices wages pursuant to NYLL that shall: at the time of hiring, a notice containing the following rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, or other allowances if any...the regular pay day designated by the salary, piece, commission, employer in accordance with section one hundred ninety-one of this article... (a) provide information: states Defendant provide notice his or her employee complaint 2017. Wage defendant states plaintiff with that a wage Act Prevention he was plaintiff employed was notice of NYLL requirement Theft that not did §195(1) in September hired at the time he was apply enforcement (WTPA) around defendant by hired. at the provisions 2003 and plaintiff were not concedes defendant However, time 2001/2002 was effective hired until 9, 2011. While notice does provides Hunter's September it did Court that claims NYLL Every that wages employers VIOLATIONS Plaintiff's until Commission for against is dismissed. NOTICE §195(1). the plaintiff the §l 91 claim WAGE through that §191. Accordingly, §191(1)(a)(i) penalties damages claims payment seeks plaintiff are available civil notes plaintiff requirements, was not available argues the that private until after pre-2003 right the WTPA of the version of action for took violation effect NYLL §195(1)(a) to recover on April contained damages through wage NYLL 9, 2011. [3] 3 of 5 ! 4 of 6 [*FILED: QUEENS COUNTY CLERK 06/20/2018 01:40 PM 4] INDEX NO. 715053/2017 NYSCEF DOC. NO. 29 FILED NYSCEF : RECEIVED NYSCEF: 06/20/2018 COUNTY QUEENS DOC. NO. CLERK 06 in Guan employees "...only sue for v. Benihana Lin Ming recommendation who a penalty did pursuant not began working wage notice at the hour Additionally, annual wage not WL 2014 annual Marin wage of the date of hire WTPA issue annual WAGE in 2003 STATEMENT Plaintiff Reg. wage §195(1) not of the have Sess. notice does not failure NYLL Oct. can a to furnish §198(1-b) Hero Corp., Sept. (S.D.N.Y. 5039428, at hiring 4, 2017). Finally, Cuomo 30, the on as the is dismissed to the a private provide to receive for §195(1) of hiring 2014). prior remedy held class entitled by Governor (NY claims a statutory §195(1) signed and Court April of action cause plaintiff effective 9, 2011 for failure to notices. VIOLATIONS claims to provide failing S5885-B did 2013), time was (E.D.N.Y. by a bill 06/20/2018 1, 2011) the at the one of WL 2014 4950009, eliminated NYLL and wage WL 2017 was plaintiff's time single of them June 27, notice provision adapted 2014) B 8106-C, See Assembly Accordingly, at the 26, Inc., requirement prior (S.D.N.Y. Feb. hour and [e]very „none 9, 2011...none under 165 of Labor under by the Commissioner See Yuquilema of action. v. Manhattan's right Aug. wage because and April hiring..." only private v. Apple-Metro notice 12/29/2014. of F.R.D. (S.D.N.Y. 829098, a proper by plaintiff (S.D.N.Y. 4207106, and 2014) time is enforceable an employee's by before claim any notice receive 275 Corp., WL 2013 to §198(1-b) representatives and Nat'l adapted 715053/2017 NYSCEF: RECEIVED and NO. INDEX 14 11: 28 report and / 2018 / 20 that wage Every defendant violated the wage on a weekly statements of NYLL claim statement NYLL basis. §195(3) in pertinent provides §195(3) by part: shall... employer with every payment of wages, listing the by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis or other; thereof, whether paid by the hour, shift, day, week, salary, piece, commission, if any, claimed as part of the minimum gross wages; deductions; allowances, wage; and (3) furnish following: with a statement each employee the dates of work covered net wages. While defendant requires that provide specific statements wage and statement with to dismiss the basis, statute payment of wages evidence every documentary informational its required motion on a weekly to employees only and of wages context. NYLL plaintiff's wage §195(3) statement is granted. Plaintiff via wage has provided Defendant plaintiff defendant's seeks as compensation seek to provide be furnished information. provided Accordingly, claim failed statements for through §198, penalties a private plaintiff under New liquidated the delayed right cannot New York's York CPLR damages payments of action seek liquidated for due himself and weekly liquidated damages damages for a putative for class of biweekly. instead violations the putative class, he seeks to represent plaintiff While of NYLL provision as damages may §191 are deemed Law. §901 lists the prerequisites to a class action. CPLR §901(b) provides: Unless a statute creating or imposing a penalty, or minimum measure or recovery specifically the recovery thereofin a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action. authorizes [4] 4 of 5 I 5 of 6 [*FILED: QUEENS COUNTY CLERK 06/20/2018 01:40 PM 5] INDEX NO. 715053/2017 NYSCEF DOC. NO. 29 F ILED NYSCEF : RECEIVED NYSCEF: 06/20/2018 QUEENS DOC. NO. COUNTY CLERK 06 2018 20 11: NO. 715053/2017 NYSCEF: 06/20/2018 INDEX AM 14 RECEIVED 28 I not claims plaintiff Here, Plaintiff putative. Appx. 59 (2d Cir for providing provides good did not York 2016). faith that find that held provided for 74 A.D.2d 550 (1st Inc., 22 A.D.3d 148 (2nd is a penalty The finds Court plaintiff reviewed, to CPLR in the Dept. and §3211(a)(1) class claim 4 Gratt Rudgayzer action by CPLR on the cause (7) which due, the is based. v. Cape action class cannot employer Canaveral the law, Court New claims. be recovered See Carter FLSA and unless with for Fed. in class v. Frito-Lay, Tour & Travel, 2005). based has no the found and 666 Corp., of NYLL similarity are compensatory which Food in compliance are a penalty upon and the of wages was are compensatory FLSA, Express noted percent of wages damages statute 1980) Dept. precluded hundred damages liquidated like NYLL, v. Hamza Court Chowdhury of one underpayment plaintiff's Accordingly, under Chowdhury liquidated that Inc., claim the damages proof damages Muhammed While liquidated have unless liquidated cites specifically courts action that claim for liquidated damages are dismissed as the §901(b). material evidentiary of action. is granted. submitted Defendant's Defendant's motion request and to dismiss for attorney provisions statutory the fees complaint and cost pursuant are denied. This is the decision and order of this Court. I Dated: June ll, , 2018 Ulysses . Leverett, JŠC FILED JUN 20 COUNTY QUEENS 2018 CLERK COUNTY [5] f I : 5 of 6 of 6

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