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FILED: NEW YORK COUNTY CLERK 04/20/2023 05:17 PM INDEX NO. 153644/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ANDRAS BAGO and ALEXANDRU GEREA, Index No.
individually and on behalf of all others similarly situated,
Plaintiffs, SUMMONS
- against -
LA BROCHETTE, INC. and ABA KOIUNOV,
Defendants.
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TO THE ABOVE-NAMED DEFENDANTS:
La Brochette, Inc. Aba Koiunov
340 Lexington Ave 108-15 64th Road
NewYork,NY Queens, NY
You are hereby summoned and required to serve upon the plaintiffs attorney an
answer to the complaint in this action within twenty (20) days after the service of this summons
and complaint, exclusive of the day of service, or within thirty (30) days after service is complete
if this summons and complaint are not personally delivered to you within the State of New York.
In case of your failure to answer,judgment will be taken against you by default for
the relief demanded in the complaint.
Venue is proper pursuant to CPLR § 503 in that New York County is the principal
place of business of defendants. In addition, many of the events giving rise to this action occurred
in New York County.
Dated: New York, New York
April 20, 2023
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VLADECK, RASKIN & CLARK, P.C.
remiah I devaia
Kathleen C. Riley
Attorneys for Plaintiffs and
the New York Class
565 Fifth Avenue, 9th Floor
New York, New York 10017
(212) 403-7300
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ANDRAS BAGO and ALEXANDRU GEREA, Index No.
individually and on behalf of all others similarly situated,
Plaintiffs, COMPLAINT
- against -
PLAINTIFFS DEMAND A
LA BROCHETTE, INC. and ABA KOIUNOV, TRIAL BY JURY
Defendants.
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Plaintiffs Andras Bago ("Bago") and Alexandru Gerea ("Gerea") (collectively,
"Plaintiffs"), on behalf of themselves and all others similarly situated, through their attorneys
Vladeck, Raskin & Clark, P.C., complain of La Brochette, Inc. ("La Brochette" or the
"Restaurant") and Aba Koiunov ("Koiunov") (collectively, "Defendants") and allege as follows:
NATURE OF ACTION
1. Plaintiffs bring this action seeking monetary damages and affirmative relief based
on Defendants' violations of the New York Labor Law ("NYLL"), New York State Human Rights
Law ("NYSHRL"), and New York City Human Rights Law, ("NYCHRL"), and other applicable
rules, regulations, statutes, and ordinances.
2. La Brochette, Inc. is a domestic business corporation organized under the laws of
New York, with a principal place of business located at 340 Lexington Avenue, New York, New
York 10016. La Brochette advertises itself as a Kosher steakhouse and sushi bar.
3. Defendants employed Plaintiffs, and those similarly situated to them, as tipped
employees ("Servers"), at La Brochette.
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4. However, until early 2019, Defendants classified all Servers as independent
contractors and issued them 1099-MISC forms in violation of New York law. Beginning in early
2019, Defendants began properly classifying some Servers, such as Gerea, as employees, but
continued to unlawfully classify other Servers, such as Bago, as independent contractors.
5. In addition, Defendants relied on a "tip credit" to pay Servers the "tipped minimum
wage" as opposed to the full minimum wage. Defendants, however, required Servers to share their
tipped income with managers, kitchen staff, and even regular customers of the Restaurant. At
times, Defendants did this by retaining charges purported to be gratuities for Servers.
6. Defendants also failed to pay Servers "spread of hours" pay as required by the
NYLL. Spread of hours pay is pay earned by the Servers under the NYLL for working more than
ten hours in one day, based on the interval between the beginning and end of the Server's workday,
including working time plus time off for meals plus intervals of duty.
7. Defendants also failed to provide Servers with proper notice of the tipped minimum
wage and its requirements. Defendants also failed to keep accurate records of time worked, tips
earned, and wages earned as required by the NYLL. Nor did Defendants make any records of tips
or wages earned available for employees to inspect. Accordingly, Plaintiffs will provide a good
faith-based estimate of total hours worked through telephone records, e-mail records, text
messages, and other means.
8. Defendants often hosted private events. Upon information and belief, Defendants
did not notify customers that the administrative fees charged for these events were not a gratuity
or a tip in a manner sufficient to ensure that a reasonable customer would understand that such
charge was not purported to be a gratuity.
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9. In addition, upon information and belief, Defendants paid Servers the tipped
minimum wage and claimed the tip credit for work done at private events but denied Servers the
opportunity to earn tips at these private events. Upon information and belief, as a result, Defendants
took tip credits for days where Servers worked more than 20% or two hours in a non-tipped
occupation.
10. Defendants willfully violated the NYLL by misclassifying Servers as independent
contractors and forcing Servers to share their tips with non-tipped workers, among other violations.
11. Plaintiffs also bring this action on behalf of themselves and all similarly situated
current and former Servers pursuant to C.P.L.R. § 901 to remedy violations ofN.Y. Lab. Law. §§
190 et seq.; N.Y. Lab. Law§§ 650 et seq.; the supporting New York State Department of Labor
regulations; and related provisions of New York City Law and the Hospitality Industry Wage
Order ("HIWO").
12. In addition, Plaintiff Bago brings this action under the New York State Human
Rights Law, N.Y. Exec. Law§§ 296 et seq. ("NYSHRL"); and the New York City Human Rights
Law, the Administrative Code of the City of New York §§ 8-101 et seq. ("NYCHRL") for
disability and age discrimination, failure to accommodate, and retaliation.
JURISDICTION AND VENUE
13. Venue is proper in the County of New York pursuant to C.P.L.R. § 503 because the
Restaurant is a resident of the county. Venue is further proper pursuant to C.P.L.R. § 503 because
a substantial part of the events or omissions giving rise to the claims occurred in this county and
the Restaurant is subject to personal jurisdiction in this county.
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14. On October 1, 2021 and February 14, 2021, Defendants and Plaintiffs entered a
Tolling and Standstill Agreement and a First Amendment to that Agreement, attached hereto as
Exhibit A. Thus, Plaintiffs' claims were tolled between October 1, 2021 and February 27, 2022.
15. Pursuant to N.Y. Lab. Law § 215(2)(b), Plaintiff Bago will cause to be served a
copy of this Complaint on the New York State Attorney General.
16. Pursuant to Section 8-502(c) of the New York City Human Rights Law, Plaintiff
Bago will cause to be served a copy of this Complaint on the City of New York Commission on
Human Rights and the Corporation Counsel of the City of New York.
PARTIES
Plaintiff Andras Bago
17. Bago is a resident of Queens, New York.
18. From May 2019 to July 2020, Bago was employed by Defendants as a Tipped
Employee, specifically a Server, within the meaning of 3(e) ofN.Y. Lab. Law§ 190(2).
Plaintiff Alexandru Gerea
19. Plaintiff Gerea resides in Queens, New York.
20. From approximately December 2017 to in or around January 2020, Gerea was
employed by Defendants as a Tipped Employee, specifically a Server, within the meaning ofN.Y.
Lab. Law § 190(2).
Defendant La Brochette, Inc.
21. Defendant La Brochette, Inc. is a corporation formed under the laws of New York
and headquartered in New York.
22. Upon information and belief, La Brochette has been in operation since in or around
2012.
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23. At all times hereinafter mentioned, La Brochette was an "employer" within the
meaning ofN.Y. Lab. Law§ 190(3), the NYSHRL, and the NYCHRL.
24. Upon information and belief, La Brochette maintains control, oversight, and
direction over its operations and employment practices.
Defendant Koiunov
25. Koiunov is the owner, manager, and/or operator of La Brochette.
26. Upon information and belief, and at all times hereinafter mentioned, Koiunov often
used the pseudonym "Avi Cohen."
27. Upon information and belief, Koiunov is a resident of Brooklyn, New York.
28. Upon information and belief, and at all times hereinafter mentioned, Koiunov was
a shareholder of La Brochette.
29. Upon information and belief, and at all times hereinafter mentioned, Koiunov was
and is the Chief Executive Officer of La Brochette.
30. Upon information and belief, and at all times hereinafter mentioned, Koiunov was
and is a corporate officer of La Brochette.
31. Upon information and belief, and at all times hereinafter mentioned, Koiunov was
and is an agent of La Brochette.
32. At all times hereinafter mentioned, Koiunov was, and is listed, as the principal on
La Brochette's New York State liquor license.
33. Upon information and belief, Koiunov has maintained, and currently maintains,
control, oversight, and direction of La Brochette's operations and employment practices.
34. At all times hereinafter mentioned, Koiunov was, and is, an "employer" within the
meaning ofN.Y. Lab. Law§ 190(3), the NYSHRL, and the NYCHRL.
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35. Upon information and belief, and at all times hereinafter mentioned, Koiunov had,
and currently has, the authority over personnel decisions and the authority to hire and fire
employees for La Brochette.
36. Upon information and belief, and at all times hereinafter mentioned, Koiunov had,
and currently has, the power to make binding decisions for La Brochette.
37. Upon information and belief, and at all times hereinafter mentioned, Koiunov had,
and currently has, the power to transfer the assets or liabilities of La Brochette.
38. Upon information and belief, and at all times hereinafter mentioned, Koiunov had,
and currently has, the power to declare bankruptcy on behalf of La Brochette.
39. At all relevant times, Koiunov has maintained, and currently maintains, control,
oversight, and direction over Plaintiffs and similarly situated employees, including timekeeping,
payroll and other employment practices that applied to them.
FACTS COMMON TO ALL WAGE & HOUR CLAIMS
40. At all relevant times, Defendants claimed a "tip credit" to pay Servers the "tipped
minimum wage" as opposed to the full minimum wage. Defendants failed to provide Servers with
proper notice of the tipped minimum wage and its requirements.
41. At all relevant times, Defendants failed to pay Servers "spread of hours" pay as
required by the NYLL.
42. La Brochette routinely engaged m extensive tip theft during Plaintiffs' time
working at the Restaurant.
43. Upon information and belief, large checks, between $6,000 and $15,000, were very
common at La Brochette. During Plaintiffs' tenures, large percentages of the tips that Servers were
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entitled to for the large checks would disappear. La Brochette management and others would
claims those tips.
44. Defendants often retained fees purported to be a gratuity and failed to adequately
notify customers that the administrative fees were not a gratuity or a tip. In addition, Defendants
claimed the tip credit for work that Servers performed for these events. Upon information and
belief, as a result, Defendants took tip credits for days where Servers worked more than 20% or
two hours in a non-tipped occupation.
45. Upon information and belief, prior to early 2019, all Servers were misclassified as
independent contractors.
46. Upon information and belief, in 2019, La Brochette instituted a tip pooling policy
but never advised Servers of the tip pooling policy in writing.
47. In addition, La Brochette owners and managers routinely took large amounts of
money from the tip pool before distributing it to the Servers. Some of these tips were even
distributed to Defendants' customers. Specifically, certain La Brochette customers who brought
large parties to the Restaurant would receive kickbacks taken from the tip pool.
48. La Brochette also did not keep the records required of employers under the NYLL
and Wage Theft Prevention Act ("WTP A").
49. Before 2019, La Brochette did not require Servers, including Gerea, to consistently
clock in and out or record their hours worked.
50. After 2019, Plaintiffs routinely witnessed or were aware of managers changing their
time records.
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51. In addition, after early 2019, Defendants continued to deny Servers access to any
records of their earned wages and tips and continued to fail to provide Servers with proper notice
of the tipped minimum wage and its requirements.
52. Other unlawful practices continued as well. For example, after early 2019, some
Servers continued to be misclassified as independent contractors.
NYLL CLASS ACTION CLAIMS
53. The Class Representatives bring the First Cause of Action on their own behalf and
as a class action, on behalf of those similarly situated, pursuant to C.P.L.R. § 901 (the "New York
Class"). The New York Class is defined as :
54. All Servers who are currently or have been employed by Defendants and were paid
less than the minimum wage, at any time within the six years prior to the filing of the Complaint
through the entry of judgment in this matter (the "New York Class Period").
55. The persons in the New York Class are so numerous thatjoinder of all members is
impracticable. The precise number of such persons is unknown and facts upon which the
calculation of that number are presently within the sole control of the Defendants.
56. There are questions of law and fact common to the New York Class that
predominate over any questions solely affecting individual members of the New York Class,
including but not limited to:
a. Whether Defendants employed the Class Representatives and the New York Class
within the meaning ofN.Y. Lab. Law§§ 190 et. seq.;
b. Whether Defendants unlawfully failed to pay the Class Representatives and the
New York Class minimum wage in violation of and within the meaning of N.Y.
Lab. Law§§ 190 et. seq. and the supporting New York State Department of Labor
Regulations, 12 N.Y.C.R.R. §§ 146-1.2, 146-1.3;
c. Whether Defendants unlawfully required the Class Representatives and the New
York Class to share their tips with employees and non-employees who were
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ineligible to receive shared tips in violation ofNew York State Department of Labor
Regulations, 12 N.Y.C.R.R. §§ 146-1.3, 146-2.14, 146-2.15;
d. Whether Defendants had a policy or practice of failing to provide adequate notice
of their payment of a reduced minimum wage to the Class Representatives and the
New York Class in violation of New York State Department of Labor Regulations,
12 N.Y.C.R.R. §§ 146-2.2, 146-2.3
e. Whether Defendants failed to keep accurate time and payroll records for the Class
Representatives and the New · York Class in violation of New York State
DepartmentofLaborRegulations, 12N.Y.C.R.R. §§ 146-2.1, 146-2.17;
f. Whether Defendants' policy of failing to pay the minimum wage to the Class
Representatives and the New York Class was instituted willfully or with reckless
disregard of the law;
g. Whether Defendants' policy of distributing Servers' tipped income to employees
and non-employees that do not customarily and regularly receive tips from
customers was instituted willfully or with reckless disregard of the law;
h. Whether Defendants' policy failing to provide adequate notice of their payment of
a reduced minimum wage to the Class Representatives and the New York Class
was instituted willfully or with reckless disregard of the law;
i. Whether Defendants failed to compensate the Class Representatives and the New
York Class for "spread of hours" pay as required under the NYLL and New York
City law
J. The proper measure of damages sustained by the Class Representatives and the
New York Class; and
k. Whether Defendants should be enjoined from such violations in the future.
57. The Class Representatives fairly and adequately protect the interests of the New
York Class and have no interests antagonistic to the class. Plaintiffs are represented by attorneys
who are experienced and competent in both class litigation and employment litigation.
58. A class action is superior to other available methods for the fair and efficient
adjudication of the controversy, particularly in the context of wage and hour litigation where
individual Plaintiffs lack the financial resources to vigorously prosecute a lawsuit in state court
against a corporate defendant. The damages sustained by individual class members are small,
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compared to the expense and burden of individual prosecution of this litigation. Class action
treatment will obviate unduly duplicative litigation and the possibility of inconsistent judgments.
59. Further, the Class Representatives and the New York Class have been equally
affected by Defendants' failure to pay the minimum wage pursuant to the NYLL. Moreover,
members of the New York Class still employed by Defendants may be reluctant to raise individual
claims for fear of retaliation.
60. Defendants have acted or refused to act on grounds generally applicable to the New
York Class, thereby making appropriate final injunctive relief or corresponding declaratory relief
with respect to the class was a whole.
61. Plaintiffs' claims are typical of those of the class. Defendants subjected the Class
Representatives and the other class members to their policies, practices, programs, procedures,
protocols, and plans alleged herein concerning the non-payment of the minimum wage, tip theft,
and the failure to keep adequate records. The job duties of the Class Representatives are typical of
those of the class members.
62. The Class Representatives intend to send notice to all members of the New York
Class to the extent required by C.P.L.R. § 904.
INDIVIDUAL FACTUAL ALLEGATIONS
Facts Related to Plaintiff Alexandru Gerea
63. Gerea worked at La Brochette in or around 2014 for several months and returned
to work at the Restaurant to work as a Server in December 2017.
64. From 2017 to early 2019, La Brochette misclassified Gerea an independent
contractor and issued him a 1099-MISC. Gerea's paychecks did not reflect his hours or his tips.
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65. Customers regularly tipped Gerea. Certain regular customers of La Brochette
would bring large groups into the Restaurant resulting in large checks of $6,000 of more. Gerea
only received a small portion of his tips associated with these checks.
66. Defendants failed to adequately inform Gerea of the tipped minimum wage or tip
credit provisions of the NYLL, or their intent to apply a tip credit to his wages.
67. Defendants frequently required Gerea to perform unpaid, off-the-clock work.
68. Defendants often required Gerea to work multiple shifts in a day beginning during
lunch service and ending in the early hours of the morning of the next day, resulting in an interval
of more than 10 hours. Though Gerea routinely worked these shifts, he never received "spread of
hours" pay.
69. La Brochette did not provide Gerea with any of the forms that the NYLL or the
Wage Theft Prevention Act ("WTP A") required, such as a wage notice or an accounting of gross
wages, deductions, allowances, and net wages.
70. In or around February 2019, La Brochette began issuing Gerea pay stubs that -
while not correctly reflecting his tips or hours - included an accounting of gross wages, net pay,
and tax deductions and withholdings.
71. However, La Brochette management continued to steal Gerea's tips. Gerea left his
position at the Restaurant in or around January 2020.
72. During his tenure, La Brochette management often mentioned their organized
crime connections to Gerea and other Servers and made threats about what would happen to those
Servers if they made legal complaints.
Facts Related to Plaintiff Andras Bago
73. Bago worked for La Brochette as a Server from May 2019 to July 2020.
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74. During his tenure at La Brochette, Bago suffered from chronic lumbar pain related
to a herniated disc in his lower back and compression and/or inflammation of a spinal never, which
often caused pain in his right leg and lower back.
75. At the end of 2019, Bago was 46. Bago was born in August 1973.
76. From in or around May 2019 to August 2019, La Brochette did not pay Bago any
wage for the time he worked, asserting that he was "in training." Nor did Bago receive any portion
of tips he earned during this time. During this training, Bago performed the ordinary duties of a
Server, shadowed other Servers, and performed side work.
77. Beginning in or around August 2019, La Brochette began paying Bago but
misclassified him as an independent contractor and issued him a 1099-MISC.
78. Customers regularly tipped Bago. Certain regular customers of La Brochette would
bring large groups into the Restaurant resulting in large checks of $6,000 of more. Bago only
received a small portion of his tips associated with these large checks.
79. Defendants failed to adequately inform Bago of the tipped minimum wage or tip
credit provisions of the NYLL, or their intent to apply a tip credit to his wages.
80. Defendants often required Bago to work multiple shifts in a day beginning during
lunch service and ending in the early hours of the morning of the next day, resulting in an interval
of more than ten hours. Though Bago routinely worked these shifts, he never received "spread of
hours" pay.
81. Defendants frequently required Bago to perform unpaid, off-the-clock work.
82. La Brochette never provided Bago with any of the forms that the NYLL and the
WTPA required such as a wage notice or an accounting of gross wages, deductions, allowances,
and net wages.
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83. In early 2019, when many Servers were moved to "employee" status and asked to
complete W-4 tax forms and other employment-related documents, La Brochette excluded Bago
and continued to misclassify him as an independent contractor.
84. In addition, during his time at La Brochette, the Restaurant repeatedly discriminated
against Bago because of his age and disability. For example, Restaurant management often referred
to Bago, who was is 46 at the end of 20199, as an "old man" and called him "slow" and "deaf."
When Bago would complain about his differential treatment, La Brochette management would tell
him that he should skip his next scheduled shift and that he could accept his treatment or quit and
find another job.
85. In mid-March 2020, then-New York City Mayor Bill de Blasio announced the
closure of non-essential businesses due to the novel coronavirus, COVID-19; several days later,
then-Governor Andrew Cuomo extended this to the entire state of New York, issuing a stay-at-
home order for non-essential workers. On March 16, 2020, Governor Cuomo shut down indoor
dining.
86. As a result, La Brochette closed its dine-in business and Bago was unemployed for
most of the spring and unable to find work as a waiter. When La Brochette reopened in the summer,
Bago was invited to return to the Restaurant to work.
87. However, after Bago returned to work at La Brochette in mid-July 2020, due to his
chronic lumbar pain, he requested a reasonable accommodation of not having to lift heavy items.
La Brochette management told Bago, in sum and substance, that given his physical restrictions he
should find employment elsewhere.
88. In addition to rejecting Bago's request, immediately after Bago requested a
reasonable accommodation, La Brochette stopped adding Bago to the shift schedule. When Bago
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called about coming into work, La Brochette's management told him there were no shifts available
for him. Upon information and belief, this was in discrimination based on his age and disability
and retaliation for Bago's request for a reasonable accommodation.
89. When Bago attempted to find an equivalent position elsewhere, La Brochette
retaliated against him further. In 2021, Bago began training as a server at a high-end Chinese
restaurant in Tribeca. During his training, management at the Tribeca restaurant called La
Brochette to check Bago's references. Upon information and belief, after Bago had retained
counsel and notified La Brochette of his claims, La Brochette told management at the Tribeca
restaurant that Bago was lazy, a bad worker, and a thief. As a result, Bago lost the position at the
Tribeca restaurant.
90. Bago was not alone m his experience: the Restaurant routinely flouted other
employment and labor laws. For example, La Brochette failed to pay for the worker's
compensation insurance the Restaurant was required to carry under New York State law. As a
result, in one instance where an employee very severely cut his finger, La Brochette management
told the employee, in sum and substance, that it would not help him and to go figure it out himself.
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FIRST CAUSE OF ACTION
FAILURE TO PAY THE MINIMUM WAGE UNDER THE NYLL
(On behalf of Plaintiffs and the New York Class)
91. Plaintiffs, on behalf of themselves and the New York Class, repeat and reallege
paragraphs 1 through 90 of this Complaint as if fully set forth herein.
92. Defendants employed Plaintiffs and the members of the New York Class and
willfully failed to compensate Plaintiffs and the members of the New York Class for the time
worked at or above the minimum wage, as required by the NYLL.
93. By the course of conduct set forth above, Defendants have violated N.Y. Lab. Law
§§ 650 et seq. and 12 N.Y.C.R.R. §§ 146-1.1 et seq.
94. Defendants have a policy and practice of refusing to pay the minimum wage to
Plaintiffs and the members of the New York Class and of misclassifying employees as independent
contractors.
95. Defendants were not eligible to avail themselves of the New York tipped minimum
wage rate because Defendants failed to inform Plaintiffs and members of the New York Class of
the tip credit; distributed a portion of Plaintiffs' and members of the tips to employees and non-
employees who were not eligible to share in tips; and required Plaintiffs and members of the New
York Class to spend over 20 percent of their work time performing non-tipped work at private
events.
96. Defendants failure to pay the minimum wage to Plaintiffs and the members of the
New York Class was willful within the meaning ofN.Y. Lab. Law§ 663.
97. As a consequence of the willful underpayment of wages, alleged above, Plaintiffs
and the members of the New York Class have incurred damages thereby and Defendants are
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indebted to them in the amount of the unpaid minimum wages, together with interest, liquidated
damages, and reasonable attorneys' fees and costs, in an amount to be determined at trial.
SECOND CAUSE OF ACTION
TIP MISAPPROPRIATION IN VIOLATION OF THE NYLL
(On Behalf of Plaintiffs and the New York Class)
98. Plaintiffs, on behalf of themselves and the New York Class, repeat and reallege
paragraphs 1 through 97 of this Complaint as if fully set forth herein.
99. Defendants unlawfully demanded, directly or indirectly, part of the gratuities that
Plaintiffs and members of the New York Class received be shared with non-employees and
employees other than Servers, bartenders, or other similar employees, in violation of N.Y. Lab.
Law§ 196-d and the supporting New York State Department of Labor regulations.
100. Defendants have a policy and practice of unlawfully demanding, directly or
indirectly, part of the gratuities that Plaintiffs and members of the New York Class received be
shared with non-employees and employees other than Servers, bartenders, or other similar
employees, in violation ofN.Y. Lab. Law§ 196-d and the supporting New York State Department
of Labor regulations.
101. Defendants' policy and practice was willful within the meaning ofN.Y. Lab. Law
§ 663.
I 02. As a consequence of the willful misappropriation of tips, alleged above, Plaintiffs
and the members of the New York Class have incurred damages thereby and the Defendants are
indebted to them in the amount of the unpaid gratuities, together with interest, liquidated damages,
and reasonable attorneys' fees and costs, in an amount to be determined at trial.
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THIRD CAUSE OF ACTION
FAILURE TO PAY NON-OVERTIME WAGES IN VIOLATION OF THE NYLL
(On Behalf of Plaintiffs and the New York Class)
103. Plaintiffs, on behalf of themselves and the New York Class, repeat and reallege
paragraphs 1 through 102 of this Complaint as if fully set forth herein.
104. Plaintiffs and the New York Class were entitled to their regular hourly wage for
each hour they worked for Defendants up to and including 40 hours per week.
105. Defendants employed Plaintiffs and the New York Class as Servers and willfully
failed to compensate Plaintiffs and the New York Class at their regular hourly rates for off-the-
clock work up to and including 40 hours per week, in violation of the requirements of the NYLL,
including, but not limited to, N.Y. Lab. Law§ 661(3).
106. Defendants also denied Plaintiffs and the New York Class spread of hours pay that
they were entitled to under the NYLL.
107. The complete records that La Brochette maintained concerning the number of hours
worked by Plaintiffs and the New York Class as well as the compensation Plaintiffs and the New
York Class received in workweeks in which unpaid hours were worked are in the exclusive
possession and control of Defendants, and as such, Plaintiffs and the New York Class are unable
to state at this time the exact amount due and owing to them.
108. Defendants failed to keep, make, preserve, maintain, and furnish accurate records
of time worked by Plaintiffs and the New York Class.
109. By the course of conduct set forth above, Defendants violated N. Y. Lab. Law § 650
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110. Defendants had a policy and practice of refusing to compensate Plaintiffs and the
New York Class for off-the-clock work.
111. Defendants' failure to pay compensation to Plaintiffs and the New York Class was
willful within the meaning ofN.Y. Lab. Law§ 663.
112. As a consequence of the willful underpayment of wages alleged above, Plaintiffs
and the New York Class incurred damages thereby and Defendants are indebted to them in the
amount of the unpaid wages and such other legal and equitable relief due to Defendants' unlawful
and willful conduct, as the Court deems just and proper.
113. Plaintiffs and the New York Class seek recovery of liquidated damages, interest,
and reasonable attorneys' fees and costs, to be paid by Defendants as provided by the NYLL.
FOURTH CAUSE OF ACTION
VIOLATION OF NYLL NOTICE AND RECORD-KEEPING REQUIREMENTS
(on Behalf of Plaintiffs and the New York Class)
114. Plaintiffs, on behalf of themselves and the New York Class, repeat and reallege
paragraphs 1 through 113 of this Complaint as if fully set forth herein.
115. Defendants failed to provide Plaintiffs and the New York Class with accurate
statements of wages as required by N.Y. Lab. Law § 195, including, but not limited to, failure to
provide wage statements containing the dates of work covered by that payment of wages; name of
employee; name of employer; address and phone number of employer; rate or rates of pay and
basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross
wages; hourly rate or rates of pay and overtime rate or rates of pay if applicable; the number of
hours worked, including overtime hours worked if applicable; deductions; and net wages.
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116. Due to Defendants' violations of N.Y. Lab. Law§ 195, for each workweek that
Defendants failed to provide a proper wage statement from December 2017 through July 2020,
Plaintiffs and the New York Class are entitled to damages of$100, or a total of$2,500, as provided
for by N.Y. Lab. Law§ 198, reasonable attorneys' fees and costs, and injunctive and declaratory
relief.
117. Due to Defendants' violations of N.Y. Lab. Law § 195, for each day that
Defendants failed to provide a proper wage statement from December 2017 through the present,
Plaintiffs and the New York Class are entitled to damages of $250, or a total of $5,000, as provided
for by N.Y. Lab. Law§ 198, reasonable attorneys' fees and costs, and injunctive and declaratory
relief.
FIFTH CAUSE OF ACTION
NYSHRL: FAILURE TO ACCOMMODATE
(on Behalf of Plaintiff Bago)
118. Plaintiff Bago repeats and realleges paragraphs 1 through 117 above.
119. Plaintiff Bago has had, at all relevant times, a "disability" as that term is defined in
the NYSHRL. Plaintiff Bago was able to perform the essential functions of the job with a
reasonable accommodation, and therefore was at all relevant times an "individual with a disability"
within the meaning of the NYSHRL. Defendants had notice of Plaintiff Bago's disability.
120. With reasonable accommodation, PlaintiffBago could have performed the essential
functions of his job and Defendants refused to make such accommodations.
121. Defendants have acted intentionally and with malice and/or reckless indifference
to Plaintiff Bago' s statutorily protected rights.
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122. As a result of Defendants' discriminatory acts, Plaintiff Bago has suffered and will
con