Opinion
278 A.D. 88 103 N.Y.S.2d 349 GUSTAV E. HYATT, Respondent, v. SHAPIROs&sCOHEN, INC., Appellant. Supreme Court of New York, First Department. March 27, 1951
APPEAL from an order of the Supreme Court at Special Term (EDER, J.), entered December 4, 1950, in New York County, which granted a motion by plaintiff to strike out the first and second affirmative defenses and the third separate and partial defense of the answer, under subdivision 6 of rule 109 of the Rules of Civil Practice. Plaintiff sued to recover overtime compensation, liquidated damages and counsel fees under the Fair Labor Standards Act of 1938 as amended. He alleged in his complaint that he was employed by defendant and was required to perform and did in fact perform his regular duties consisting of selling produce, fruits and vegetables under the direct control and supervision of defendant; handling, processing and moving the goods from the premises of respondent to the sidewalk in front of the premises; and performing various clerical duties assigned to him from time to time by defendant. The answer admitted the allegation that plaintiff was employed as a salesman at $100 a week but denied the allegation that plaintiff also performed manual and clerical duties. As affirmative defenses, the answer further alleged that plaintiff was employed as a wholesale produce salesman in an administrative capacity requiring independent discretion to agree on prices in a fluctuating market, that defendant relied for such interpretation upon two letters, set forth in its answer, from the Wage and Hour Division of the Federal Department of Labor, and that defendant acted in good faith and upon reasonable grounds.
COUNSEL
Hyman R. Friedman of counsel (Irving Coopersmith, attorney), for appellant.
Morris Wagman, attorney (Irving Sheinfeld with him on the brief), for respondent. Per Curiam.
Plaintiff sued under the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.) to recover for alleged unpaid overtime plus an 'equal amount as liquidated damages', together with reasonable attorney's fees. Defendant denies plaintiff's allegations with respect to the nature of the employment and the alleged overtime and sets forth two affirmative defenses and one partial defense.
The first affirmative defense states that plaintiff was employed in a bona fide administrative capacity and was therefore exempted by subdivision (a) of section 213 of the act.
The second affirmative defense states that defendant relied on an administrative ruling of the Wage and Hour Division of the Department of Labor and the administrative practice of that agency, and was therefore not subject to liability, pursuant to section 259 of title 29 of the United States Code (Portal-to-Portal Pay Act of 1947, § 10).
The partial defense is that defendant acted in good faith and had reasonable grounds for believing that its acts were not in violation of the act, and that therefore no liquidated damages should be awarded, pursuant to section 260 of title 29 of the United States Code (Portal-to-Portal Pay Act of 1947, § 11).
Defendant has fully set out facts adequate to state defenses sufficient in law when considered in connection with the denials interposed to the allegations of the complaint. We express no opinion as to the merits of these defenses. That question can be determined only after a full development of the facts on trial.
The order should be reversed, with $20 costs and disbursements to appellant and the motion denied.
PECK, P. J., VAN VOORHIS, SHIENTAG and HEFFERNAN, JJ., concur; COHN, J., dissents and votes to affirm for the reasons set forth by the Justice at Special Term.
Order reversed, with $20 costs and disbursements to the appellant and the motion denied. [See 278 A.D. 813.]