Opinion
No. 570126/14.
03-02-2015
Thomas E. CARROLL, Plaintiff–Appellant, v. TANGIER, LLC, and Patrick Fahey, Defendants–Respondents.
Opinion
Order (Robert R. Reed, J.), dated July 3, 2013, modified to grant plaintiff partial summary judgment against defendant Tangier, LLC on the issue of liability for the unpaid wages sought in the seventh, eighth, tenth, eleventh, and sixteen through nineteenth causes of action.
Alleging that he was employed in a supervisory position in a restaurant/lounge owned by defendant Tangier, LLC (“Tangier”), at an agreed upon weekly salary, plaintiff commenced this action against Tangier and its officer, defendant Fahey, seeking unpaid wages and other compensation.
The summary judgment record now before us establishes that Tangier failed to comply with its statutory obligation to preserve complete and accurate payroll records (see Labor Law §§ 196–a, 661 ; see also 12 NYCRR 142–2.6 ), in connection with the one-week pay periods at issue in plaintiff's seventh, eighth, tenth, eleventh, and sixteen through nineteenth causes of action, thereby entitling plaintiff to the benefit of a reduced burden of proof with regard to these unpaid wage claims (see Matter of A. Uliano & Son. Ltd. v. New York State Dept. of Labor, 97 AD3d 664 [2012] ; Matter of Angello v. National Fin. Corp., 1 AD3d 850 [2003] ). Plaintiff met this reduced burden by submitting evidence, including his own personal affidavit, establishing prima facie that he was not paid his earned wages “in accordance with the agreed terms of employment” (Labor Law § 191[1][d] ; see Epelbaum v. Nefesh Achath B'Yisrael, 237 A.D.2d 327, 330 [1997] ). In opposition, defendant's conclusory allegations were insufficient to raise a triable issue. Thus, plaintiff is entitled to partial summary judgment solely on the unpaid wage claims embodied in the aforementioned causes of action.
The court properly denied summary judgment relief with respect to the remaining issues raised in plaintiff's motion. Plaintiff failed to submit sufficient proof of willfulness, so as to warrant the imposition of liquidated damages as a matter of law under the preamendment version of Labor Law § 198, the terms of which created no presumption of willfulness (see Ryan v. Kellogg Partners Institutional Services, 19 NY3d 1, 10, n. 8 [2012] ). Nor can it presently be determined on this record whether defendant Fahey qualified as an “employer” for purposes of Labor Law liability (see Bonito v. Avalon Partners, Inc., 106 AD3d 625 [2013] ).
I concur.