Preview
FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018
Richard L. Steer
Tara Toevs Carolan
TARTER KRINSKY 4 DROGIN LLP
Attorneys for Defendants
11th
1350 Broadway, Floor
New York, NY 10018
(212) 216-8000
rsteer@tarterkrinsky.com
tearolan@tarterkrinsky.com
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MERCEDES PERDOMO, individually and on behalf of
all other persons similarly situated, Index No. 151497/2018
Plaintiffs,
ANSWER AND
- against - AFFIRMATIVE DEFENSES
SOPHIE'S CUBAN CUISINE, INC., MM
RESTAURANT ENTERPRISES, LLC, SOPHIE'S
CUBAN CUISINE FRANCHISING, INC., and related
or affiliated entities,
Defendants.
Defendants Sophie's Cuban Cuisine, Inc. ("SCC"), MM Restaurant Enterprises LLC
LLC" Restaurant"
s/h/a "MM Restaurant Enterprises, ("MM Restaurant"), and Sophie's Cuban Cuisine
"Defendants"
Franchising, Inc. ("SCCF") (referred to herein collectively as "Defendants"), by their
undersigned attorneys, Tarter Krinsky & Drogin LLP, as and for their Answer to the Class
"Complaint"
Action Complaint (NYSCEF Doc. No. 1) (the "Complaint") filed by Mercedes Perdomo
("Plaintiff"
("Plaintiff"), state as follows:
PRELIMINARY STATEMENT
"1"
1. Admit that Plaintiff purports to bring the claims alleged in paragraph of the
Complaint.
"2"
2. Admit that Plaintiff purports to bring the claims alleged in paragraph of the
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Complaint.
"3"
3. Deny the allegations in paragraph of the Complaint.
PARTIES
"4"
4. Deny the allegations in paragraph of the Complaint, except deny knowledge
or information sufficient to form a belief as to the truth or falsity of the allegation therein
concerning Plaintiff's residency.
"5"
5. Deny the allegations in paragraph of the Complaint, except admit that SCC is
a domestic business corporation, and refer all questions of law therein to the Court for its
determination.
"6"
6. Deny the allegations in paragraph of the Complaint and refer all questions of
law therein to the Court for itsdetermination.
"7"
7. Deny the allegations in paragraph of the Complaint, except admit that SCCF
is a domestic business corporation, and refer all questions of law therein to the Court for its
determination.
"8"
8. Deny the allegations in paragraph of the Complaint.
"9"
9. Deny the allegations in paragraph of the Complaint.
"10"
10. Deny the allegations in paragraph of the Complaint.
11. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"11"
of the allegations in paragraph of the Complaint, except MM Restaurant admits the
allegations therein.
"12"
12. Deny the allegations in paragraph of the Complaint.
CLASS ALLEGATIONS
"13"
13. Deny the allegations in paragraph of the Complaint.
"14"
14. Admit that Plaintiff purports to bring the claims alleged in paragraph of the
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Complaint.
"15"
15. Deny the allegations in paragraph of the Complaint, except deny knowledge
or information sufficient to form a belief as to the truth or falsity of the allegation therein
concerning Plaintiff's knowledge.
"16"
16. Deny the allegations in paragraph of the Complaint.
"17"
17. Deny the allegations in paragraph of the Complaint, except deny knowledge
or information sufficient to form a belief as to the truth or falsity of the allegation therein
Defendants'
concerning defenses as to the purported class.
18. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"18"
of the allegations in paragraph of the Complaint.
"19"
19. Deny the allegations in paragraph of the Complaint and refer allquestions of
law therein to the Court for itsdetermination.
STATEMENT OF FACTS
"20"
20. Deny the allegations in paragraph of the Complaint.
"21"
21. Deny the allegations in paragraph of the Complaint.
"22"
22. Deny the allegations in paragraph of the Complaint, except MM Restaurant
admits that Plaintiff worked at 369 Lexington Avenue.
23. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"23"
of the allegations in paragraph of the Complaint, except MM Restaurant admits Plaintiff
worked as a cashier.
24. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"24"
of the allegations in paragraph of the Complaint, except MM Restaurant denies the
allegations therein.
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"25"
25. Deny the allegations in paragraph of the Complaint.
"26"
26. MM Restaurant denies the allegations in paragraph of the Complaint, and
SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations therein.
"27"
27. Deny the allegations in paragraph of the Complaint.
"28"
28. Deny the allegations in paragraph of the Complaint.
"29"
29. Deny the allegations in paragraph of the Complaint.
"30"
30. MM Restaurant denies the allegations in paragraph of the Complaint, and
SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations therein.
"31"
31. Deny the allegations in paragraph of the Complaint.
"32"
32. Deny the allegations in paragraph of the Complaint.
"33"
33. Deny the allegations in paragraph of the Complaint.
"34"
34. MM Restaurant admits the allegations in paragraph of the Complaint, and
SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations therein.
"35"
35. MM Restaurant denies the allegations in paragraph of the Complaint, and
SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations therein.
36. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"36"
of the allegations in paragraph of the Complaint.
37. Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations in paragraph "37 of the Complaint.
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"38"
38. Refer allquestions of law in paragraph of the Complaint to the Court for its
determination.
"39"
39. Deny the allegations in paragraph of the Complaint.
"40"
40. Deny the allegations in paragraph of the Complaint.
"41"
41. Deny the allegations in paragraph of the Complaint.
"42"
42. Deny the allegations in paragraph of the Complaint.
"43"
43. Deny the allegations in paragraph of the Complaint.
"44"
44. Deny the allegations in paragraph of the Complaint.
"45"
45. Deny the allegations in paragraph of the Complaint.
FIRST CAUSE OF ACTION
NEW YORK OVERTIME COMPENSATION LAW
"1" "45"
46. Repeat, restate, and reiterate the responses in paragraphs through herein
"46"
in response to paragraph of the Complaint.
"47"
47. Refer the Court to the regulation referenced in paragraph of the Complaint
for the language in therein.
"48"
48. Refer the Court to the law referenced in paragraph of the Complaint for the
language therein.
"49"
49. Deny the allegations in paragraph of the Complaint.
"50"
50. Deny the allegations in paragraph of the Complaint.
"51"
51. Deny the allegations in paragraph of the Complaint.
"52"
52. Deny the allegations in paragraph of the Complaint.
"53"
53. Deny the allegations in paragraph of the Complaint.
"54"
54. Deny the allegations in paragraph of the Complaint.
"55"
55. Deny the allegations in paragraph of the Complaint.
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SECOND CAUSE OF ACTION
NEW YORK FAILURE TO PAY WAGES
"1" "55"
56. Repeat, restate, and reiterate the responses in paragraphs through herein
"56"
in response to paragraph of the Complaint.
"57"
57. Refer the Court to the law referenced in paragraph of the Complaint for the
language therein.
"58"
58. Refer the Court to the law referenced in paragraph of the Complaint for the
language therein.
"59"
59. Deny the allegations in paragraph of the Complaint.
"60"
60. Refer the Court to the law referenced in paragraph of the Complaint for the
language therein.
"61"
61. Deny the allegations in paragraph of the Complaint.
"62"
62. Refer allquestions of law in paragraph of the Complaint to the Court for its
determination.
"63"
63. Deny the allegations in paragraph of the Complaint.
"64"
64. Deny the allegations in paragraph of the Complaint.
"65"
65. Deny the allegations in paragraph of the Complaint.
THIRD CAUSE OF ACTION:
FAILURE TO PAY ADDITIONAL AMOUNTS FOR LAUNDERING
REQUIRED UNIFORMS
"1" "65"
66. Repeat, restate, and reiterate the responses in paragraphs through herein
"66"
in response to paragraph of the Complaint.
"67"
67. Refer the Court to the regulations referenced in paragraph of the Complaint
for the language therein.
"68"
68. Deny the allegations in paragraph of the Complaint.
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"69"
69. Deny the allegations in paragraph of the Complaint.
"70"
70. Deny the allegations in paragraph of the Complaint.
"71"
71. Deny the allegations in paragraph of the Complaint.
"72"
72. Deny the allegations in paragraph of the Complaint.
"73"
73. Deny the allegations in paragraph of the Complaint.
"(1)"
74. Admit that Plaintiff purports to seek the relief alleged in paragraph of the
Wherefore Clause of the Complaint.
"(2)"
75. Admit that Plaintiff purports to seek the relief alleged in paragraph of the
Wherefore Clause of the Complaint.
"(3)"
76. Admit that Plaintiff purports to seek the relief alleged in paragraph of the
Wherefore Clause of the Complaint.
"(4)"
77. Admit that Plaintiff purports to seek the relief alleged in paragraph of the
Wherefore Clause of the Complaint.
DEFENDANTS'
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The Complaint, in whole or part, fails to state a cause of action upon which relief can be
granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Plaintiff's claims are barred, in whole or in part, by documentary evidence.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Plaintiff is barred from recovery, in whole or in part, due to unclean hands.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
To the extent any claims may be made herein against Defendants, and without conceding
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the burden of proof on such issue, Defendants acted at alltimes in good faith and had reasonable
grounds to believe that their actions did not violate the NYLL.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred as her alleged unpaid work time, if any, is de minimis.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred as to all hours during which Plaintiff was engaged in
activities which were preliminary or postliminary to her principal activities.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's purported class action claims are barred as class action relief is not appropriate
because Defendants did not act pursuant to a uniform policy or plan.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
Plaintiff's purported class action claims are barred, as Plaintiff is not similarly situated to
the putative class action individuals who she purports to represent.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
Class action relief is not appropriate, because individual liability and damages issues
predominate over issues generally applicable to the class action.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Plaintiff's purported class action claims are barred to the extent Plaintiff purports to
represent individuals who are not entitled to overtime and/or are exempt from overtime under the
NYLL.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
Defendants'
Plaintiff's claims are barred based on lack of constructive or actual
knowledge of hours worked.
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AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
SCC and SCCF are not a proper party defendant to this Action.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
SCC and SCCF were not Plaintiff's employers as defined under the NYLL.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff is unable to meet the criteria necessary to maintain a class action.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Claims of Plaintiff and/or the purported class are barred, in whole or in part, by the
statute of limitations.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
Claims of Plaintiff and/or the purported class are barred by waiver, laches, and/or
estoppel.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
Claims of Plaintiff and/or the purported class are barred by accord and satisfaction.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
Claims of Plaintiff and/or the purported class are barred in whole or in part by settlement
and release agreements including, but not limited to, those in Mendoza v. Sophie's Restaurant,
et al. (SDNY Case No. Cordova v. et al.(SDNY Case No. 13-cv-
Inc., 11-cv-8383); SCCF, Inc.,
5665), and; Mohamed v. Sophie's Cuban Cuisine, Inc. (SDNY Case No. 14-cv-3099).
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
Defendants hereby give notice that they intend to rely upon such other and further
defenses as may become available during discovery in this Action and reserve the right to amend
their Answer to assert any such defenses.
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WHEREFORE, Defendants pray as follows:
a. That the Complaint be dismissed with prejudice and that Plaintiff and the
purported class take nothing thereby;
b. That the purported class not be certified;
c. That judgment be entered in favor of Defendants and against Plaintiff on all
claims;
attorneys'
d. That Defendants be awarded their fees and costs incurred in defense of
this Action, and;
e. For such other and further relief as the Court deems proper.
Dated: April 19, 2018
New York, New York
TARTER KRINSKY & DROGIN LLP
Attorneys for Defendants
By: s/Richard L. Steer
Richard L. Steer
Tara Toevs Carolan
11th
1350 Broadway, Floor
New York, New York 10018
(212) 216-8000
rsteer@tarterkrinsky.com
tearolan@tarterkrinsky.com
TO: VIRGINIA & AMBINDER, LLP
Attorneys for Plaintiff
Lloyd R. Ambinder, Esq.
Jack L. Newhouse, Esq.
Paige Davis, Esq.
7th
40 Broad Street, Floor
New York, New York 10004
(212) 943-9080
lambinder@vandallp.com
jnewhouse@vandallp.com
pdavis@vandallp.com
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FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 Richard L. Steer Tara Toevs Carolan TARTER KRINSKY 4 DROGIN LLP Attorneys for Defendants 11th 1350 Broadway, Floor New York, NY 10018 (212) 216-8000 rsteer@tarterkrinsky.com tearolan@tarterkrinsky.com SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MERCEDES PERDOMO, individually and on behalf of all other persons similarly situated, Index No. 151497/2018 Plaintiffs, ANSWER AND - against - AFFIRMATIVE DEFENSES SOPHIE'S CUBAN CUISINE, INC., MM RESTAURANT ENTERPRISES, LLC, SOPHIE'S CUBAN CUISINE FRANCHISING, INC., and related or affiliated entities, Defendants. Defendants Sophie's Cuban Cuisine, Inc. ("SCC"), MM Restaurant Enterprises LLC LLC" Restaurant" s/h/a "MM Restaurant Enterprises, ("MM Restaurant"), and Sophie's Cuban Cuisine "Defendants" Franchising, Inc. ("SCCF") (referred to herein collectively as "Defendants"), by their undersigned attorneys, Tarter Krinsky & Drogin LLP, as and for their Answer to the Class "Complaint" Action Complaint (NYSCEF Doc. No. 1) (the "Complaint") filed by Mercedes Perdomo ("Plaintiff" ("Plaintiff"), state as follows: PRELIMINARY STATEMENT "1" 1. Admit that Plaintiff purports to bring the claims alleged in paragraph of the Complaint. "2" 2. Admit that Plaintiff purports to bring the claims alleged in paragraph of the 01511726.DOCX I 1 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 Complaint. "3" 3. Deny the allegations in paragraph of the Complaint. PARTIES "4" 4. Deny the allegations in paragraph of the Complaint, except deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegation therein concerning Plaintiff's residency. "5" 5. Deny the allegations in paragraph of the Complaint, except admit that SCC is a domestic business corporation, and refer all questions of law therein to the Court for its determination. "6" 6. Deny the allegations in paragraph of the Complaint and refer all questions of law therein to the Court for itsdetermination. "7" 7. Deny the allegations in paragraph of the Complaint, except admit that SCCF is a domestic business corporation, and refer all questions of law therein to the Court for its determination. "8" 8. Deny the allegations in paragraph of the Complaint. "9" 9. Deny the allegations in paragraph of the Complaint. "10" 10. Deny the allegations in paragraph of the Complaint. 11. Deny knowledge or information sufficient to form a belief as to the truth or falsity "11" of the allegations in paragraph of the Complaint, except MM Restaurant admits the allegations therein. "12" 12. Deny the allegations in paragraph of the Complaint. CLASS ALLEGATIONS "13" 13. Deny the allegations in paragraph of the Complaint. "14" 14. Admit that Plaintiff purports to bring the claims alleged in paragraph of the 01511726.DOCX 2 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 Complaint. "15" 15. Deny the allegations in paragraph of the Complaint, except deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegation therein concerning Plaintiff's knowledge. "16" 16. Deny the allegations in paragraph of the Complaint. "17" 17. Deny the allegations in paragraph of the Complaint, except deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegation therein Defendants' concerning defenses as to the purported class. 18. Deny knowledge or information sufficient to form a belief as to the truth or falsity "18" of the allegations in paragraph of the Complaint. "19" 19. Deny the allegations in paragraph of the Complaint and refer allquestions of law therein to the Court for itsdetermination. STATEMENT OF FACTS "20" 20. Deny the allegations in paragraph of the Complaint. "21" 21. Deny the allegations in paragraph of the Complaint. "22" 22. Deny the allegations in paragraph of the Complaint, except MM Restaurant admits that Plaintiff worked at 369 Lexington Avenue. 23. Deny knowledge or information sufficient to form a belief as to the truth or falsity "23" of the allegations in paragraph of the Complaint, except MM Restaurant admits Plaintiff worked as a cashier. 24. Deny knowledge or information sufficient to form a belief as to the truth or falsity "24" of the allegations in paragraph of the Complaint, except MM Restaurant denies the allegations therein. 01511726.DOCX 3 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 "25" 25. Deny the allegations in paragraph of the Complaint. "26" 26. MM Restaurant denies the allegations in paragraph of the Complaint, and SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations therein. "27" 27. Deny the allegations in paragraph of the Complaint. "28" 28. Deny the allegations in paragraph of the Complaint. "29" 29. Deny the allegations in paragraph of the Complaint. "30" 30. MM Restaurant denies the allegations in paragraph of the Complaint, and SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations therein. "31" 31. Deny the allegations in paragraph of the Complaint. "32" 32. Deny the allegations in paragraph of the Complaint. "33" 33. Deny the allegations in paragraph of the Complaint. "34" 34. MM Restaurant admits the allegations in paragraph of the Complaint, and SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations therein. "35" 35. MM Restaurant denies the allegations in paragraph of the Complaint, and SCC and SCCF deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations therein. 36. Deny knowledge or information sufficient to form a belief as to the truth or falsity "36" of the allegations in paragraph of the Complaint. 37. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in paragraph "37 of the Complaint. 01511726.DOCX 4 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 "38" 38. Refer allquestions of law in paragraph of the Complaint to the Court for its determination. "39" 39. Deny the allegations in paragraph of the Complaint. "40" 40. Deny the allegations in paragraph of the Complaint. "41" 41. Deny the allegations in paragraph of the Complaint. "42" 42. Deny the allegations in paragraph of the Complaint. "43" 43. Deny the allegations in paragraph of the Complaint. "44" 44. Deny the allegations in paragraph of the Complaint. "45" 45. Deny the allegations in paragraph of the Complaint. FIRST CAUSE OF ACTION NEW YORK OVERTIME COMPENSATION LAW "1" "45" 46. Repeat, restate, and reiterate the responses in paragraphs through herein "46" in response to paragraph of the Complaint. "47" 47. Refer the Court to the regulation referenced in paragraph of the Complaint for the language in therein. "48" 48. Refer the Court to the law referenced in paragraph of the Complaint for the language therein. "49" 49. Deny the allegations in paragraph of the Complaint. "50" 50. Deny the allegations in paragraph of the Complaint. "51" 51. Deny the allegations in paragraph of the Complaint. "52" 52. Deny the allegations in paragraph of the Complaint. "53" 53. Deny the allegations in paragraph of the Complaint. "54" 54. Deny the allegations in paragraph of the Complaint. "55" 55. Deny the allegations in paragraph of the Complaint. 01511726.DOCX 5 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 SECOND CAUSE OF ACTION NEW YORK FAILURE TO PAY WAGES "1" "55" 56. Repeat, restate, and reiterate the responses in paragraphs through herein "56" in response to paragraph of the Complaint. "57" 57. Refer the Court to the law referenced in paragraph of the Complaint for the language therein. "58" 58. Refer the Court to the law referenced in paragraph of the Complaint for the language therein. "59" 59. Deny the allegations in paragraph of the Complaint. "60" 60. Refer the Court to the law referenced in paragraph of the Complaint for the language therein. "61" 61. Deny the allegations in paragraph of the Complaint. "62" 62. Refer allquestions of law in paragraph of the Complaint to the Court for its determination. "63" 63. Deny the allegations in paragraph of the Complaint. "64" 64. Deny the allegations in paragraph of the Complaint. "65" 65. Deny the allegations in paragraph of the Complaint. THIRD CAUSE OF ACTION: FAILURE TO PAY ADDITIONAL AMOUNTS FOR LAUNDERING REQUIRED UNIFORMS "1" "65" 66. Repeat, restate, and reiterate the responses in paragraphs through herein "66" in response to paragraph of the Complaint. "67" 67. Refer the Court to the regulations referenced in paragraph of the Complaint for the language therein. "68" 68. Deny the allegations in paragraph of the Complaint. 01511726.DOCX 6 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 "69" 69. Deny the allegations in paragraph of the Complaint. "70" 70. Deny the allegations in paragraph of the Complaint. "71" 71. Deny the allegations in paragraph of the Complaint. "72" 72. Deny the allegations in paragraph of the Complaint. "73" 73. Deny the allegations in paragraph of the Complaint. "(1)" 74. Admit that Plaintiff purports to seek the relief alleged in paragraph of the Wherefore Clause of the Complaint. "(2)" 75. Admit that Plaintiff purports to seek the relief alleged in paragraph of the Wherefore Clause of the Complaint. "(3)" 76. Admit that Plaintiff purports to seek the relief alleged in paragraph of the Wherefore Clause of the Complaint. "(4)" 77. Admit that Plaintiff purports to seek the relief alleged in paragraph of the Wherefore Clause of the Complaint. DEFENDANTS' AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE The Complaint, in whole or part, fails to state a cause of action upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by documentary evidence. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Plaintiff is barred from recovery, in whole or in part, due to unclean hands. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE To the extent any claims may be made herein against Defendants, and without conceding 01511726.DOCX 7 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 the burden of proof on such issue, Defendants acted at alltimes in good faith and had reasonable grounds to believe that their actions did not violate the NYLL. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred as her alleged unpaid work time, if any, is de minimis. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred as to all hours during which Plaintiff was engaged in activities which were preliminary or postliminary to her principal activities. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiff's purported class action claims are barred as class action relief is not appropriate because Defendants did not act pursuant to a uniform policy or plan. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE Plaintiff's purported class action claims are barred, as Plaintiff is not similarly situated to the putative class action individuals who she purports to represent. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Class action relief is not appropriate, because individual liability and damages issues predominate over issues generally applicable to the class action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE Plaintiff's purported class action claims are barred to the extent Plaintiff purports to represent individuals who are not entitled to overtime and/or are exempt from overtime under the NYLL. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Defendants' Plaintiff's claims are barred based on lack of constructive or actual knowledge of hours worked. 01511726.DOCX 8 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE SCC and SCCF are not a proper party defendant to this Action. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE SCC and SCCF were not Plaintiff's employers as defined under the NYLL. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff is unable to meet the criteria necessary to maintain a class action. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Claims of Plaintiff and/or the purported class are barred, in whole or in part, by the statute of limitations. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Claims of Plaintiff and/or the purported class are barred by waiver, laches, and/or estoppel. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Claims of Plaintiff and/or the purported class are barred by accord and satisfaction. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE Claims of Plaintiff and/or the purported class are barred in whole or in part by settlement and release agreements including, but not limited to, those in Mendoza v. Sophie's Restaurant, et al. (SDNY Case No. Cordova v. et al.(SDNY Case No. 13-cv- Inc., 11-cv-8383); SCCF, Inc., 5665), and; Mohamed v. Sophie's Cuban Cuisine, Inc. (SDNY Case No. 14-cv-3099). AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE Defendants hereby give notice that they intend to rely upon such other and further defenses as may become available during discovery in this Action and reserve the right to amend their Answer to assert any such defenses. 01511726.DOCX 9 of 10 FILED: NEW YORK COUNTY CLERK 04/19/2018 01:20 PM INDEX NO. 151497/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/19/2018 WHEREFORE, Defendants pray as follows: a. That the Complaint be dismissed with prejudice and that Plaintiff and the purported class take nothing thereby; b. That the purported class not be certified; c. That judgment be entered in favor of Defendants and against Plaintiff on all claims; attorneys' d. That Defendants be awarded their fees and costs incurred in defense of this Action, and; e. For such other and further relief as the Court deems proper. Dated: April 19, 2018 New York, New York TARTER KRINSKY & DROGIN LLP Attorneys for Defendants By: s/Richard L. Steer Richard L. Steer Tara Toevs Carolan 11th 1350 Broadway, Floor New York, New York 10018 (212) 216-8000 rsteer@tarterkrinsky.com tearolan@tarterkrinsky.com TO: VIRGINIA & AMBINDER, LLP Attorneys for Plaintiff Lloyd R. Ambinder, Esq. Jack L. Newhouse, Esq. Paige Davis, Esq. 7th 40 Broad Street, Floor New York, New York 10004 (212) 943-9080 lambinder@vandallp.com jnewhouse@vandallp.com pdavis@vandallp.com 01511726.DOCX I 10 of 10