Aguilar v Uncommon Grounds Enters., Inc.

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Aguilar v Uncommon Grounds Enters., Inc. 2022 NY Slip Op 32827(U) August 23, 2022 Supreme Court, New York County Docket Number: Index No. 150552/2022 Judge: Mary V. Rosado 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. INDEX NO. 150552/2022 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 33 ----------~ -x BRIGIDO GALVEZ AGUILAR, INDEX NO. 150552/2022 MOTION DATE 03/09/2022, 03/17/2022 Plaintiff, -vUNCOMMON GROUNDS ENTERPRISES, INC.,DISHES GROUP MANAGEMENT CORP., CITY MINT, INC.,MINI MINT, INC.,MINT NO. 5. INC.,MOSHE MALLUL, MARGARITA TALISMAN Defendant. MOTION SEQ. NO. 002 003 DECISION+ ORDER ON MOTION ----·-------------------X HON. MARY V. ROSADO: The following e-filed documents, listed by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33, 34,35,36, 37,38,39,40,41,42,43,44 ,45,46,47,48,49, 50, 51, 52, 53,54, 55, 56,57,58, 59,69 CLASS ACTION ORDER MAINTAIN were read on this motion to/for ; The following e-filed documents, listed by NYSCEF document number (Motion 003) 60, 61, 62, 63, 64, 65,66,67,68, 70, 71 OISMISSAL were read on this motion to/for Oral argument was held on June 21; 2022, with Rony Guldmann appearing for Plaintiff Brigido Galvez Aguilar ("Plaintiff') and Ira S. Sturm app¢aring for all Defendants. Upon oral argument and the foregoing documents, it is decided and ordered as follows. I. Procedural History Plaintiff filed a Complaint on behalf of himself and a purported Class (the "Class") on January 18, 2022 (NYSCEF Doc. 2). In the Complaint, Plaintiff alleged that Defendants collectively own and operate five restaurants as one integrated enterprise under the name "Dishes" (id. at 1 5). Plaintiff further alleged that he worked for Dikhes from December 2014 to March 2020. Plaintiff alleged on behalf of himself and the class that Defendants engaged in improper time shaving, improper tip credit practices, improper meal ctedit practices, and a variety of other 150552/2022 AGUILAR, BRIGIDO GALVEZ vs. UNCOMMON GROUNDS ENTERPRISES, INC. ET AL Motion No. 002 003 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 150552/2022 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/23/2022 violations of New York Labor Law ("NYLL") (id at ,r,r 14-23; 25-26; 30-38). Plaintiff describes the proposed class as delivery persons, servers, runners, bussers, cashiers, porters, cooks, linecooks, food preparers, and dishwashers employed by Dishes (id at ,r,r 14-23). Plaintiff also proposed a subclass of tipped employees comprised of waiters, servers, runners, delivery persons, and busboys ("Tipped Subclass") (id at ,r 16). Defendants did not file an Answer. Rather, Defendants filed a motion to dismiss for failure to state a claim (NYSCEF Docs. Nos. 12-13). Defendants mbved to dismiss on numerous grounds. Ii First, they argued that Plaintiff does not have standing to reJresent the class since he never alleges ,1 ,I to have been a server, runner, busser, cashier, porter, cook, lihe-cook, food preparer, or dishwasher, but only a delivery person (NYSCEF Doc. 15). Defendants, also claim that because Plaintiff does not cite to any specific section of NYLL that provides a basis for relief, the Complaint must be dismissed (id). Defendants further assert that Plaintiff cannot bring a class action for record keeping violations or statutory penalties pursuant to CPLR § 901(b) (id). Defendants argue dismissal is also appropriate because Plaintiffs "off the clock allegations" are too individualized to warrant class treatment (id.). Defendants also produced affidavits from current employees and Plaintiffs manager that contradict Plaintiffs affidavit. ,1 :1 In response to Defendants' motion to dismiss, Plaintiff filed an Amended Complaint 11 'I (NYSCEF Doc. 17). The Amended Complaint contained! the same allegations as the original Complaint. The only difference between the Complaint and the Amended Complaint was that rather than alleging Plaintiff and the Class are entitled to liquidated damages and statutory penalties, in the Amended Complaint, Plaintiff sought to recover liquidated damages and statutory penalties solely for himself (NYSCEF Doc. 17 at ,r 58). One week after filing his Amended Complaint, Plaintiff moved for class certification. 150552/2022 AGUILAR, BRIGIDO GALVEZ vs. UNCOMMON GROUNDS ENTERPRISES, INC. ET AL Motion No. 002 003 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 150552/2022 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/23/2022 Defendant and Plaintiff agreed to moot Defendant's first motion to dismiss (motion seq. 001) in lieu of Plaintiff's Amended Complaint (NYSCEF Doc. 73). Defendants did not file an Answer to Plaintiff's Amended Complaint. Instead, Defern:fants moved to dismiss the Amended ' Complaint. Defendants argued that Plaintiffs Amended C~mplaint should be dismissed pursuant I to CPLR §§ 321 l(a)(2) and (7) for essentially the same reasbns as their original motion to dismiss (NYSCEF Doc. 60). Defendants also argued that because Plaintiff has not individually waived his own statutory penalty claims, he cannot pursue .class relief (NYSCEF _Doc. 68). Plaintiff opposed arguing that he has met the liberal pleading standard of the CPLR, that Defendants' affidavits are self-serving, and that failure to specify under which provision of the NYLL· Plaintiff seeks relief is not fatal to his Complaint (NYSCEF doc. 70). II. Discussion A. Motion to Dismiss When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v Mobile I Life Support Services, Inc., 37 NY3d 236,239 [2021]). All ractual allegations must be accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept 2004]). Generally, it is "premature to dismiss class action allegations before an answer is served or pre-certification discovery has been taken" (Grifjin v Gregory's Coffee Management LLC, 191 AD3d 600 [1st Dept 2021-J quoting Downing vFirst Lenox Terrace Assoc., 107 AD3d 86, 91 [1st Dept 2013] affd 24 NY3d 382 [2014]). However, as noted by the Court of Appeals, nothing in the Ii CPLR bars a class claim from being dismissed, even at the:ipre-answer stage, for failure to state a cause of action (Maddie ks v Big City Properties, LLC, 34 NY3d 116, 123 [2019]). To succeed on 150552/2022 AGUILAR, BRIGIDO GALVEZ vs. UNCOMMON GROUNDS ENTERPRISES, INC. ET AL Motion No. 002 003 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 150552/2022 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/23/2022 a pre-certification motion to dismiss, a defendant must conclusively show that there is no basis for class action relief as a matter of law (Griffin at 601 ). Defendants have conclusively shown that Plaintiffs Amended Complaint seeking class relief is barred as a matter of law. CPLR § 901(b) provides that "unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in 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." In its Amended Complaint, Plaintiff has not waived his right to an award of statutory penalties (NYSCEF Doc. 17 at ,I 58). Not only he is seeking relief under, .but does Plaintiff fail . to notice Defendants what section of the i!NYLL I Plaintiff has not pied that the statutory penalties he seeks fof himself are specifically authorized to 'I ·I be recovered in a class action. (Sperry v Crompton Corp., 8 NY3d 204, 213-214 [2007]; Leyse v !i I Flagship Capital Services Corp., 22 AD3d 426 [1st Dept 2005]; see also Somerville v Usdan, 255 AD2d 500,501 [2d Dept 1998]). Therefore, as the Amended Complaint is currently pied, Plaintiff cannot seek class relief while also seeking statutory penalties for himself, especially when he does not state under which provisions of the NYLL he seeks relief. However, a plaintiff can avoid application of CPLR § 901(b) by waiving her right to penalties (Downing v First Lenox Terrace Associates, 107 AD3d 86, 89 [1st Dept 2013]; Cox v Microsoft Corp., 8 AD3d 39, 40 [1st Dept 2004]; Divlijanovic v Saks & Co., 2018 NY Slip Op 30236(U) at **12 [Sup Ct, New York County 2018]). Thus, Plaintiffs Complaint is dismissed without prejudice. Plaintiff is granted leave to correct the d~ficiencies in his Amended Complaint. B. Motion for Class Certification ,, ,, II Plaintiffs motion for class certification is rendered moot as Defendant's motion to dismiss :1 is granted. Moreover, a motion to certify a class action'! is premature if it is made before a 150552/2022 AGUILAR, BRIGIDO GALVEZ vs. UNCOMMON GROUNDS ENTERPRISES, INC. ET · AL Motion No. 002 003 [* 4] 4 of 5 Page4 of 5 INDEX NO. 150552/2022 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/23/2022 i I I Defendant's time to serve an answer has expired (CPLR § 902; Dabrowski v Abax Inc., 64 AD3d I'I . 426,427 [1st Dept 2009]; Davidv. Lee & Co., Inc. v Ryan, 266 AD2d 811 [4th Dept 1999]; Soriano 2021 NY Slip Op 31351(U) [Sup AssisJnce, v New York State Office a/Temporary andDisability I . I . Ct, New York County 2021 ]). Plaintiff may renew its motion for class certification if it files a ;, 1! g I second Amended Complaint. Accordingly, it is hereby I . .lo is ORDERED, that the motion sequence 003 seeking I· dismiss the Amended Complaint . granted as Plaintiff's claim for statutory penalties bars the dlass action complaint; a;d it is further ORDERED, that Plaintiff is granted leave to replJd within twenty-one (21) days of the II! date of service of this Decision and Order with notice of entry, and it is further . u i . ORDERED, that Defendant shall serve and file a !esponsive pleading within thirty-five (35) days ofthe date of service of the Decision and Order Jith notice of entry; and it is further ORDERED, that motion sequence 002 seeking clas) certification is rendered moot because I i . Plaintiff's Amended Complaint is dismissed. This constitutes the Decision and Order of the Court. i 11 !I Ii !I _______ j__/_1l.9_...,_v_fr.,_c._<+- 8/23/2022 DATE CHECK ONE: x CASE DISPOSED GRANTED • i l •1: DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN X I l ! HON. MARY V. ROSADO, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT • • OTHER REFERENCE .!•; I 150552/2022 AGUILAR, BRIGIDO GALVEZ vs. UNCOMMON GROUNDS ENTERPRISES, INC. ET I I ; ~ Motion No. 002 003 [* 5] 5 of 5 Page 5 of 5

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