Opinion
EF2020-67771
06-09-2021
Robert BARLIN, on behalf of himself and all other employees similarly situated, Plaintiff, v. PIZZA JERKS, LTD. and Iginio Rovetto, Defendants.
Thomas & Solomon LLP, Rochester ( Michael J. Lingle of counsel), for plaintiff. Fitzgerald Morris Baker Firth, P.C., Glens Falls ( John D. Aspland, Jr. of counsel), for defendants.
Thomas & Solomon LLP, Rochester ( Michael J. Lingle of counsel), for plaintiff.
Fitzgerald Morris Baker Firth, P.C., Glens Falls ( John D. Aspland, Jr. of counsel), for defendants.
Robert J. Muller, J.
Defendant Pizza Jerks, LTD (hereinafter Pizza Jerks) is a restaurant owned by defendant Iginio Rovetto with two locations in Warren County, one in the Village of Lake George and the other in the City of Glens Falls. Plaintiff Robert Barlin — who worked as a delivery driver for Pizza Jerks at its Lake George location from approximately May 2017 through November 2018 — commenced this action in February 2020 on behalf of himself and others similarly situated. The complaint includes four causes of action.
In the first cause of action, plaintiff alleges that defendants paid him and others similarly situated a subminimum wage in violation of the Minimum Wage Act ( see Labor Law § 650 et seq. ). Specifically, plaintiff alleges that defendants required all drivers to use their own vehicles when making deliveries, and these vehicles had to "be safe, functioning, legally operated and insured." Defendants did not, however, bear any of "the costs associated with [the drivers’] vehicles, including costs of gasoline, vehicle depreciation, insurance, maintenance and repairs." According to plaintiff, he was paid $7.50 per hour and — when taking into account the Internal Revenue Service standard mileage reimbursement rate combined with the number of miles he typically traveled for deliveries — he "was effectively making around $2.14 per hour."
Plaintiff further alleges that defendants impermissibly applied a tip credit to the wages of delivery drivers. In this regard, 12 NYCRR § 146-2.9 provides that "[o]n any day that a service employee or food service worker works at a non-tipped occupation (a) for two hours or more, or (b) for more than 20 percent of his or her shift, whichever is less, the wages of the employee shall be subject to no tip credit for that day." According to plaintiff, "[d]uring every single shift, [he] was required to complete prep work for the store at the beginning and/or end of his shift[, which included] wash[ing] dishes, mak[ing] pizza dough, proof[ing] pizza dough, mak[ing] pizza sauce, portion[ing] chicken wings, slic[ing] vegetables, cut[ting] deli meats, and stock[ing] pizza boxes." Plaintiff alleges that "[d]uring the winter months, [he] spent at least 4 hours [of his 7-hour] shift performing this prep work," and "during the summer months, [he] spent approximately 3 hours per shift."
A tip credit allows an employer to pay tipped employees less than the minimum wage, provided that the tips received bring the employees’ earnings up to the minimum wage ( see "We Are Your DOL: Minimum Wage for Tipped Workers," New York State Department of Labor, available at https://labor.ny.gov/formsdocs/factsheets/pdfs/p717.pdf).
In the second cause of action, plaintiff alleges that defendants unlawfully withheld and retained gratuities from him and others similarly situated at its Lake George location. In this regard, Labor Law § 196-d provides that "[n]o employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. 12 NYCRR § 146-2.19 further provides as follows:
"(a) A charge for the administration of a banquet, special function, or package deal shall be clearly identified as such and customers shall be notified that the charge is not a gratuity or tip.
"(b) The employer has the burden of demonstrating, by clear and convincing evidence, that the notification was sufficient to ensure that a reasonable customer would understand that such charge was not purported to be a gratuity.
"(c) Adequate notification shall include a statement in the contract or agreement with the customer, and on any menu and bill listing prices, that the administrative charge is for administration of the banquet, special function, or package deal, is not purported to be a gratuity, and will not be distributed as gratuities to the employees who provided service to the guests. The statements shall use ordinary language readily understood and shall appear in a font size similar to surrounding text, but no smaller than a 12-point font."
According to plaintiff, Pizza Jerks charges a delivery fee at its Lake George location and has "fail[ed] to notify customers that the [fee] is not distributed in its entirety to [the] employees who provide[ ] the [delivery] service."
In the third cause of action, plaintiff alleges that defendants failed to provide him and others similarly situated with wage statements in compliance with Labor Law § 195 (3). The fourth cause of action then appears to pertain only to plaintiff and alleges that defendants failed to comply with Labor Law § 195 (1) (a) which requires that, at the time of hiring, an employee must be given a notice containing, inter alia , "the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other[, and] allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances."
Presently before the Court is plaintiff's motion pursuant to CPLR article 9 for an Order (1) granting class certification; (2) approving plaintiff as class representative; (3) approving Thomas & Solomon LLP as class counsel; (4) authorizing class counsel to send the proposed Notice of Class Action to all class members; (5) authorizing class counsel to post the proposed Notice of Class Action at defendants’ stores in an appropriate location within the kitchen or other non-public area; and (6) directing defendants to produce the class members’ contact information. Plaintiff proposes that the following classes be certified:
"(a) New York Minimum Wages Subclass : All persons who worked as delivery drivers for [d]efendants at any time in the six years prior to the filing of this action through the entry of judgment in this matter.
"(b) Illegal Retention of Gratuities Subclass : All persons who worked as delivery drivers at the Lake George store location who, at any time six years prior to the filing of this action through the entry of final judgment in this matter, did not receive the collected gratuity automatically added on to customers’ delivery bills."
A motion for class certification is governed by CPLR 901 and 902. CPLR 901 (a) — entitled "Prerequisites to a class action" — provides that members of a class may sue as representatives of the class if:
"1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
"2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
"3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
"4. the representative parties will fairly and adequately protect the interests of the class; and
"5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
"These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority" ( City of New York v Maul , 14 NY3d 499, 508 [2010] ; accord Maor v Hornblower New York, LLC , 51 Misc 3d 1231[A], 2016 NY Slip Op 50891[U], *2 [Sup Ct, NY County 2016]). CPLR 902 then provides that the Court shall also consider:
"1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
"2. The impracticability or inefficiency of prosecuting or defending separate actions;
"3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
"4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum; [and]
"5. The difficulties likely to be encountered in the management of a class action."
"While the question of ‘[w]hether a particular lawsuit qualifies as a class action rests within the sound discretion of the trial court, [i]n exercising this discretion, a court must be mindful ... that the class certification statute should be liberally construed’ " ( Maor v Hornblower New York, LLC , 2016 NY Slip Op 50891[U] at *2, quoting Kudinov v Kel-Tech Constr., Inc. , 65 AD3d 481, 481 [2009] ). "The Court of Appeals has explained that the standards for certifying class actions ‘should be broadly construed not only because of the general command for a liberal construction of all CPLR sections, but also because it is apparent that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it’ " ( Maor v Hornblower New York, LLC , 2016 NY Slip Op 50891[U] at *2, quoting City of New York v Maul , 14 NY3d at 509 [internal quotation marks and citation omitted]; see Stecko v RLI Ins. Co. , 121 AD3d 542, 543-544 [2014] ).
Here, plaintiff has gone through each of the factors outlined in CPLR 901 and 902 in painstaking detail in his motion papers. Specifically, with respect to CPLR 901 :
1. Plaintiff contends that the class exceeds 40 members — submitting his own affidavit and the affidavits of two other delivery drivers in support of this contention — with numerosity " ‘presumed at a level of 40 members’ " ( Borden v 400 E. 55th St. Assoc., L.P. , 24 NY3d 382, 399 [2014], quoting Consol. Rail Corp. v. Town of Hyde Park , 47 F 3d 473, 483 [2d Cir 1995] ).
2. Plaintiff contends that all members of the class have been injured by the same policies — which violate the same statutes and regulations — and commonality has therefore been satisfied ( see e.g. Shahriar v Smith & Wollensky Rest. Group, Inc. , 65 F 3d 234, 252 [2d Cir 2011] [concluding that commonality satisfied "where class claims all derive from the same compensation policies and tipping practices" and "all of the class plaintiffs’ claims arise under the same New York State statutes and regulations"]; Hicks v T.L. Cannon Corp. , 35 F Supp 3d 329, 351-352 [WD NY 2014] [finding commonality where "[d]efendants allegedly provided all class members with deficient wage and tip notices"]).
3. Plaintiff contends that his claims and defenses are typical of the claims and defenses of the class, as all members of the class were subject to the same policies — and typicality has therefore been satisfied ( see Friar v Vanguard Holding Corp. , 78 AD2d 83, 99 [1980] [typicality has been satisfied where "plaintiff's claim derives from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory"]; Pruitt v Rockefeller Ctr. Props. , 167 AD2d 14, 22 [1991] ["Plaintiff's claim is also typical of the claims of other members of the class since it arises out of the same course of conduct as the class members’ claims and is based on the same cause of action."]).
4. Plaintiff contends that his counsel — Thomas & Solomon LLP — specializes in wage and hour class actions and is well qualified to handle this case, and that he has no interests which diverge from those of the other class members — and adequacy of representation has therefore been satisfied ( see Nawrocki v Proto Constr. & Dev. Corp. , 82 AD3d 534, 535 [2011] [finding adequacy satisfied where "plaintiffs seek the same relief as the class members — to receive the wages and benefits allegedly owed to them ...."]; Ackerman v Price Waterhouse , 252 AD2d 179, 202 [1998] ["The factors to be considered in determining adequacy of representation are whether any conflict exists between the representative and the class members, the representative's familiarity with the lawsuit and ... the competence and experience of class counsel."]).
5. Plaintiff contends that a class action is the superior method of adjudication
in this case because the proposed class consists of employees who have each suffered relatively small damages that may not otherwise motivate them to bring an action on their own behalf due to the costs of litigation and hiring an attorney — and superiority has therefore been satisfied ( see Pruitt v Rockefeller Ctr. Props. , 167 AD2d at 21 [finding that class actions are "particularly appropriate where ... class members have allegedly sustained damages in amounts insufficient to justify individual actions"]; Super Glue Corp. v Avis Rent A Car Sys. , 132 AD2d 604, 607-608 [1987] ["The small amount of damages sustained by the individual class members would discourage many of them from pursuing their claims individually, and the number of claimants would render consolidation unfeasible."]).
With respect to CPLR 902 :
1. Plaintiff contends that the interest of the class members in controlling the litigation supports certifying the case as a class action because (1) requiring each employee to independently find an attorney to conduct discovery and complete a trial to determine the legality of the same pay policies would be unnecessarily expensive and time consuming; and (2) most members of the proposed classes have not suffered large enough damages to warrant hiring an attorney and funding individual litigation ( see Krebs v Canyon Club, Inc. , 22 Misc 3d 1125[A], 2009 NY Slip Op 50291[U], *16 [Sup Ct, Westchester County 2009]).
2. Plaintiff contends that it would be inefficient and impractical for the Court to hold a separate trial for each member of the class ( see id. );
3. It is undisputed that there is no other litigation pending relative to the claims under consideration herein.
4. Plaintiff contends that it is desirable to concentrate the litigation in this forum, given the location of the named parties — with many members of the proposed class likely located in and around Warren County as well.
5. Plaintiff contends that, even when taking into account the difficulties of class action management, the benefits of a class action still far exceed any other method of adjudication ( see id. at *19).
In opposition, defendants focus solely on the requirement of superiority under
CPLR 901 (a) (5), contending that a class action is not the superior method of adjudicating this matter. Defendants rely upon Alix v Wal-Mart Stores, Inc. (57 AD3d 1044 [2008] ) (hereinafter Alix ), wherein two former employees of defendant Wal-Mart Stores, Inc. commenced an action alleging that defendant "failed to properly compensate them and other similarly situated employees and former employees in violation of 12 NYCRR part 142 and Labor Law articles 6 and 19" ( id. at 1045 ). More specifically, plaintiffs alleged "that defendant used its store level managers to implement a corporate-wide policy that systematically deprived many of its employees of proper compensation through the manipulation of time records and the implementation of employment practices designed to compel employees to work off the clock without compensation ( id. at 1045-1046 ). Plaintiffs thereafter moved for class certification, which motion was denied by Supreme Court (Platkin, J.). The denial was then affirmed by the Third Department, which stated as follows:
"[P]laintiffs failed to establish that a class action is superior to other methods available to them to pursue these claims. Specifically, an administrative remedy is available by which plaintiffs, in their status as employees, could file wage related complaints with the [DOL]. Simply because the Commissioner of Labor's authority to pursue such claims is discretionary, this does not render such a proceeding less effective than a class action. The availability of this administrative process, and its focus on the particulars applicable to each employee's claim, make it in many ways a superior method by which the claims made by plaintiffs, and the proposed members of the class, can be pursued against defendant" ( id. at 1048 [citations omitted]).
Defendants contend that — just as in Alix — the superior method for plaintiff to adjudicate his claims is by filing a wage related complaint with the DOL. The facts in Alix , however, are readily distinguishable from the facts in the instant matter. There, the representative plaintiffs’ claims were found "markedly different from that of the proposed class[, with] neither alleg[ing] that they were forced or directed to work off the clock by any of defendant's supervisory personnel" ( id. at 1046). Further, the proposed class consisted of approximately 200,000 current and former employees across all 92 of defendant's locations in New York, each of whom had a different employment scenario. Indeed, in his underlying decision Justice Platkin aptly described the determination of the individual entitlements of the hundreds of thousands of class members as a "Herculean task" ( Alix v Wal-Mart Stores, Inc. , 16 Misc 3d 844, 864 [Sup Ct, Albany County 2007] ).
In a later case involving plaintiffs employed as servers at defendants’ restaurants and catering venues who alleged violations of Labor Law § 196-d over a three-year period, Justice Platkin found Alix to be distinguishable and granted class certification ( see Adams v Bigsbee Enters., Inc. , 53 Misc 3d 1210[A], 2015 NY Slip Op 52008[U], *7 [Sup Ct, Albany County 2015]). Specifically, Justice Platkin stated as follows:
"While defendants’ arguments regarding the availability of an administrative remedy are not without some force, the Court finds that plaintiffs have made an adequate showing of superiority under the particular facts and circumstances of this action. Unlike in [ Alix ], adjudication of class members’ claims in this case would not call for the type of intensive, individualized inquiries that are highly problematic in the context of a class-wide adjudication. Further, ... the claims of all servers who worked during a particular banquet will stand or fall together. Accordingly, the Court finds that the element of superiority has been sufficiently established" ( Adams v Bigsbee Enters., Inc. , 2015 NY Slip Op 52008[U], at *7).
Class certification has also been granted in several other cases involving wage and tip disputes since Alix was decided ( see e.g. Ferrari v National Football League , 153 AD3d 1589, 1593 [2017] ; Nawrocki v Proto Constr. & Dev. Corp. , 82 AD3d 534, 536 [2011] ; Ramlochan v Westchester Shores Event Holdings, Inc. , 67 Misc 3d 1208[A], 2020 NY Slip Op 50460[U], *5 [Sup Ct, Westchester County 2020]; Weinstein v Jenny Craig Operations, Inc. , 41 Misc 3d 1220[A], 2013 NY Slip Op 51783[U], *5 [Sup Ct, NY County 2013]; Thomas v Meyers Assoc., L.P. , 39 Misc 3d 1217[A], 2013 NY Slip Op 50650[U], *11 [Sup Ct, NY County 2013]; Krebs v Canyon Club, Inc. , 2009 NY Slip Op 50291[U], *17-19). It must also be noted that the Court of Appeals recently remitted a wage dispute for consideration of class certification ( see Andryeyeva v New York Health Care, Inc. , 33 NY3d 152, 185 [2019] ).
Under the circumstances — and given that the class certification statute "must be liberally construed and any error, if there is to be one, should be in favor of allowing the class action" ( Hurrell-Harring v State of New York , 81 AD3d 69, 72 [2011] ) — the Court finds that plaintiffs have established superiority with the finding in Alix inapposite. Just as in Adams v Bigsbee Enters., Inc. ( supra the standards for certifying class actions ‘should be broadly construed not only because of the general command for a liberal construction of all CPLR sections, but also because it is apparent that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded ( id. at *7).
Based upon the foregoing, plaintiff's motion is granted in its entirety.
Counsel for the parties are hereby directed to appear for a conference on June 25, 2021 at 10:00 A.M. , with the conference to be conducted virtually using Microsoft Teams.
Therefore, having considered NYSCEF documents 3 through 15, 28 through 30 and 33 through 36, and oral argument having been heard on May 17, 2021 with Michael J. Lingle, Esq. appearing on behalf of plaintiff and John D. Aspland, Jr. Esq. appearing on behalf of defendants, it is hereby
ORDERED that plaintiff's motion is granted in its entirety; and it is further
ORDERED that counsel for the parties shall appear for a conference on June 25, 2021 at 10:00 A.M. , with the conference to be conducted virtually using Microsoft Teams.
The above constitutes the Decision and Order of the Court.
The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.