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PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THEIR MINIMUM WAGE, OVERTIME PAY, SPREAD-OF-HOURS PAY AND WAGE THEFT PREVENTION ACT CAUSES OF ACTION, INCLUDING LIQUIDATED DAMAGES, PREJUDGMENT INTEREST AND ATTORNEYS’ FEES (FIRST DEPT).

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[3]) 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

 

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ALTHOUGH BREACH OF CONTRACT CAUSES OF ACTION WERE PRECLUDED BY THE STATUTE OF FRAUDS, RELATED PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS.
PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).
SIX-MONTH CONTRACTUAL STATUTE OF LIMITATIONS EXPIRED BEFORE THE CLAIM ACCRUED AND WILL NOT BE ENFORCED TO PRECLUDE PAYMENT ON THE CLAIM (FIRST DEPT).
UNDER THE NEW YORK CITY HUMAN RIGHTS LAW, PLAINTIFF NEED NOT DEMONSTRATE AN ADVERSE EMPLOYMENT ACTION TO RECOVER FOR GENDER DISCRIMINATION (FIRST DEPT).
COVERAGE AT ISSUE WAS THE SUBJECT OF A POLICY EXCLUSION (WHICH WAS THEN ADDED BACK IN BY AN ENDORSEMENT); BECAUSE THE COVERAGE WAS NOT OUTSIDE THE SCOPE OF THE POLICY A TIMELY DISCLAIMER WAS REQUIRED.
Voluntary Payment Doctrine Precluded Lawsuit
PLAINTIFF’S STATE AND CITY HUMAN RIGHTS LAW CAUSES OF ACTION PROPERLY DISMISSED PURSUANT TO THE DOCTRINE OF COLLATERAL ESTOPPEL; THE IDENTICAL CLAIMS UNDER FEDERAL LAW WERE DISMISSED IN FEDERAL COURT ON SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FIRST DEPT).
BY NOT SEEKING THE FULL AMOUNT OF THE DEBT IN THE 90-DAY NOTICE PLAINTIFF MAY HAVE DE-ACCELERATED THE DEBT MAKING THE FORECLOSURE ACTION TIMELY (FIRST DEPT).

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