The First Department, reversing Supreme Court, determined the motion court should not have denied plaintiff’s summary judgment motion and, sua sponte, dismissed the complaint in this action alleging “violations of minimum wage, overtime pay and spread-of-hours pay under the Labor Law and violations of the Wage Theft Prevention Act (WTPA) …” . The First Department granted plaintiffs’ summary judgment motion, finding them entitled to liquidated damages, prejudgment interest and attorneys’ fees:
Plaintiffs established prima facie that defendants violated Labor Law §§ 190-199, 650, and 652 and 12 NYCRR 142 and 146-1.6 by failing to pay them minimum wage, overtime pay, and spread-of-hours pay. Although 12 NYCRR 142-2.2 requires an employer to pay an employee for overtime, i.e., working time over 40 hours, at a wage rate of 1½ times the employee’s regular rate, defendant Georgios Liristis, owner of defendant GE & LO Corp. d/b/a Burger Hut, testified that plaintiffs each worked 8- to 10-hour shifts, six days a week, and were paid a fixed salary. Although 12 NYCRR 142-2.4(a) requires that, for any day in which an employee’s spread of hours exceeds 10 hours, the employee receive one hour’s pay at the minimum wage rate in addition to the minimum wage, the record shows that plaintiff Galindo Tezoco, who regularly worked shifts over 10 hours, did not receive the additional hours’ pay.
Defendant Liristis’ testimony establishes that defendants failed to pay three of the five plaintiffs the prevailing minimum wage during the relevant periods. Defendants cannot avail themselves of the “tip credit,” since they undisputedly failed to provide notice of the tip credit in writing … .
Plaintiffs established that defendants violated the WTPA by failing to provide them with wage statements (see Labor Law § 195) and by failing to provide wage notices to plaintiff Silverio Tezoco … . It is undisputed that defendants failed to provide any wage notices or wage statements during the course of plaintiffs’ employment. Tezoco v GE & LO Corp., 2021 NY Slip Op 06463, First Dept 11-18-21