Preview
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------------X
ROBERT HARRIS, Index No.: 650175/2017
Plaintiff,
- against-
INTIMO INC., NATHAN NATHAN, individually, TOMMY
NATHAN, individually, MORIS ZILKHA, individually, PRESTIGE
EMPLOYEE ADMINISTRATORS, INC. a/k/a PRESTIGE
EMPLOYEE ADMINISTRATORS, PRESTIGE EMPLOYEE
ADMINSTRATORS II, INC. a/k/a PRESTIGE EMPLOYEE
ANDMINISTRATORS and JOHN DOES 1-10, and ABC CORPS.
1-10, fictitious namesfor persons or entities whose present roles and
identities are
unknown,
Defendants.
---------------------------------------------------------------------------------X
MEMORANDUM OF LAW
INTIMO DEFENDANTS OPPOSING THE MOTION TO DISMISS OF THE PRESTIGE
DEFENDANTS
1 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
Table of Contents
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .1
Background/Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .
1
Argument . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . .. . . . .. . . . .. . . ..
. . .. .. . .. . . .. . .. . 2
I. IRRESPECTIVE OF WHETHER PLAINTIFF’S CLAIMS ARE
DISMISSED THE PRESTIGE DEFENDANTS REMAIN SUBJECT
TO THE INTIMO DEFENDANTS’ CROSS CLAIMS . . . . . . . . . . . . .. . . . 2
II. THE PRESTIGE DEFENDANTS CAN BE FOUND TO BE DIRECTLY
LIABLE TO PLAINTIFF TO THE EXTENT THAT HE WAS IN FACT
SHORTED SALARY. . . . .. . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .3
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
Preliminary Statement
The Defendants Prestige Employee Administrators, Inc. and Prestige Employee
Admistrators II, Inc. (collectively “Prestige Defendants”) have not, in the present motion, sought
dismissal of the cross-claims asserted against them by the original defendants (collectively
“Intimo Defendants”) in this matter. Therefore, even if this Court grants the Prestige Defendants
the relief requested (dismissal of all claims against them in plaintiff’s complaint), they must
nonetheless remain parties to this dispute, albeit as third-party defendants. Dismissal of all
claims in a complaint does not require dismissal of independent cross-claims.
Furthermore, if there is in fact any liability owed to plaintiff for unpaid wages and
commissions (an issue disputed by Intimo Defendants), then the Prestige Defendants, as a
professional employer organization (“PEO”) must be directly liable to plaintiff. Rather than
casting doubt on such liability, the documents attached to the Prestige Defendants’ motion, as
well as others attached to the affirmation accompanying this opposition, confirm and require that
it was the Prestige Defendants who was the “co-employer” directly responsible for the correct
payment of wages. New York Labor Law §922 explicitly requires PEOs to retain sufficient
authority over their employees (of which plaintiff was indisputably one) to been deemed
“employers” for purposes of New York Labor Law.
Background/Procedural History
The present case, in which plaintiff alleges he was shorted certain salary and
commissions, as well as discriminated against due to his age, was filed January 10, 2019 (Doc
#1). The Intimo Defendants responded with a motion to dismiss which was decided on
December 12, 2018 (Doc #23). Thereafter a discovery order entered, and the Intimo Defendants
1
3 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
filed their initial answer on February 5, 2019 (Doc #23). The parties then commenced document
discovery.
In the course of conducting initial document discovery, it was revealed that the Prestige
Defendants for certain of the years at issue “co-employers” of plaintiff. Per the document
attached to the Prestige Defendants present motion (Doc # 55, Ex C), as well as others, it was
noted that starting on or about March 29, 2010 it was in fact the Prestige Defendants who were
responsible for payroll in this “co-employment” relationship and that plaintiff’s status was that of
a “leased” employee of Prestige (Doc# 55, Ex C ¶3).
Following this discovery on or about April 23, 2019 the then parties stipulated that
plaintiff should amend the complaint to add the Prestige Defendants. The Court so ordered the
stipulation on May 28, 2019 (Doc #28). The Prestige Defendants appeared in this case and
extended their time to answer or otherwise move on June 25, 2019 (Doc #47). The Intimo
Defendants filed an Amended Answer with Cross-Claims on July 2, 2019 (Doc #48). The cross-
claims assert, (1) that it was the Prestige Defendants that were responsible for seeing that
plaintiff received his proper salary, and (2) that the Intimo Defendants made all payments to the
Prestige Defendants required to pay the plaintiffs salary (Doc # 48 ,¶¶ 153-156).
Argument
I. IRRESPECTIVE OF WHETHER PLAINTIFF’S CLAIMS ARE DISMISSED
THE PRESTIGE DEFENDANTS REMAIN SUBJECT TO THE INTIMO
DEFENDANTS’ CROSS CLAIMS
The Prestige Defendants’ motion only seeks dismissal of the plaintiff’s complaint against
them, not dismissal of the cross claims. “[CPLR § 3019(b)] allows a cross-claim for any cause
of action and does not require it to be dependent on the claim of the plaintiff.” La France
2
4 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
Carpets, Inc. v. U. S. Rubber Co., 19 A.D.2d 812, 812, 243 N.Y.S.2d 540 (1st Dep’t 1963). “The
dismissal [of a cross-claim] was not mandated by the earlier dismissal of plaintiff’s complaint …
for failure to prove a Prima facie case.” Brooks v. Chemical Leaman Tank Lines, Inc., 71 A.D.2d
405, 408, 422 N.Y.S.2d 695 (1st Dep’t 1979). See generally, Richardson v. Lindenbaum &
Young, 14 Misc.3d 1226(A), 836 N.Y.S.2d 495, 2007 N.Y. Slip Op. 50185(U) (Sup. Kings,
2007).
In the present case the cross-claims pled by the Intimo Defendants state a theory of liability
against the Prestige Defendants independent of plaintiff’s claims against the Prestige Defendants.
In short, the Intimo Defendants pleading states that they paid whatever sums were due to the
plaintiff for salary over to the Prestige Defendants, and if plaintiff failed to receive all the salary
he was due, the fault was with the Prestige Defendants. To the extent the Intimo Defendants are
found liable to plaintiff for shorted salary or commission, then the Prestige Defendants are liable
to the Intimo Defendants. Irrespective of whether the Prestige Defendants are directly liable to
the plaintiff, they would nonetheless, due to their agreement, be liable to the Intimo Defendants
for indemnity, contribution and unjust enrichment.
II. THE PRESTIGE DEFENDANTS CAN BE FOUND TO BE DIRECTLY
LIABLE TO PLAINTIFF TO THE EXTENT THAT HE WAS IN FACT
SHORTED SALARY.
The Prestige Defendants attempt to draw a distinction between being a “co-employer”,
which they admit that they are, and acting as a “joint employer”, which they believe is a
necessary precondition to liability under the New York Labor Law. They attempt to rely on
Article 31 of the Labor Law, otherwise known as the New York Professional Employer Act
(the “Act”), to support this supposed distinction. If there is in fact some distinction to be
drawn between a “co-employer” and a “joint employer”, which is far from clear given that
3
5 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
not a single case cited by the Prestige Defendants expressly makes such a distinction, it is
nonetheless a distinction without a difference. The very terms of the Act the Prestige
Defendants claim creates the distinction in fact require, that the Prestige Defendants retain
sufficient discretion over the terms and conditions of employment to be considered a “joint
employer” under the mostly Federal authorities which they cite.
Thus, Labor Law §922(1), a provision found within Article 31, provides:
1. A professional employer organization shall meet the following standards:
(a) Have a written professional employer agreement between the client and the
professional employer organization setting forth the responsibilities and duties of each party.
The professional employer agreement shall contain a description of the type of services to be
rendered by the professional employer organization and the respective rights and obligations
of the parties and the professional employer agreement shall also provide that the
professional employer organization:
(i) reserves a right of direction and control over the worksite employees. However, the
client shall maintain such direction and control over the worksite employees as is necessary
to conduct the client's business and without which the client would be unable to conduct its
business, discharge any fiduciary responsibility which it may have, or comply with any
applicable licensure;
(ii) assumes responsibility for the withholding and remittance of payroll-related taxes and
employee benefits for worksite employees and for which the professional employer
organization has contractually assumed responsibility from its own accounts, as long as the
professional employer agreement between the client and professional employer organization
remains in force; and
(iii) retains authority to hire, terminate and discipline the worksite employees.
(b) Provide written notice of the general nature of the relationship between the
professional employer organization and the client to the worksite employees located at the
client worksite.
Unfortunately, the Prestige Defendants failed to attach to their motion seeking dismissal for inter
alia clear documentary proof, a copy of their contract with Intimo, a document which the law
requires them to generate. That contract, had it been produced, and unfortunately the Intimo
Defendants have not been able to locate a copy, would be the single most important document
4
6 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
necessary to illustrate what responsibilities and privileges the Prestige Defendants exercised over
the terms of plaintiff’s employment. Fortunately, Labor Law §922 tells us what that contract
minimally was required to provide, and even under that minimum standard the Prestige
Defendants must be considered a “joint employer”. Thus, the Prestige Defendants contract with
Intimo must have provided that the Prestige Defendants “reserves a right of direction and control
over the worksite employees,” and that the Prestige Defendants “retains authority to hire,
terminate and discipline the worksite employees.” Labor Law §922(1)(a)(i) and (iii). The actual
contract may provide even greater discretion to the Prestige Defendants.
The documents that are available indicate that the Prestige Defendants did in fact retain
significant discretion to direct the terms of the plaintiff’s employment. The “Employee
Acknowledgement” attached to the Prestige Defendants motion (Doc #55, Ex. C) refers to the
plaintiff as an “at-will leased” employee (Introductory sentence and ¶3), gives Prestige the right
to terminate at any time (¶2), requires Prestige to pay plaintiff at least minimum wage for his
hours if Intimo does not provide Prestige funds to pay salary (¶3), requires plaintiff to comply
with drug testing (¶6), and demands that plaintiff contact “Prestige’s human resource director” if
he is subject to any illegal discrimination or harassment while on the job (¶7). The Prestige
Defendants also required the plaintiff to fill out an “Application for Employment”, in which the
Prestige Defendants again made clear that plaintiff was an at will employee and gave the Prestige
Defendants the right to verify plaintiffs background information. Marcus Affirm Ex. B.
Confirming the Prestige Defendants responsibility for payroll, they had plaintiff sign an
Authorization and Waiver for wage deductions and a direct deposit agreement. Marcus Affirm
Ex. C.
5
7 of 8
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019
Rather than supporting dismissal, the incomplete documentary record produced, supports
just the opposite conclusion; namely that the Prestige Defendants may be found directly liable to
plaintiff if plaintiff can in fact demonstrate that he was shorted wages and/or other compensation.
The documents which have been produced so far show that the Prestige Defendants had a direct
employer relationship with the plaintiff and that it was the Prestige Defendants who were
responsible for assuring the plaintiff received correct compensation. It stands to reason that if a
mistake were made regarding plaintiff’s wages, then it was the Prestige Defendants that was
responsible. Given this Courts obligation to draw all reasonable inferences in favor of the
pleading, it is far to soon to dismiss the Prestige Defendants possible direct liability to plaintiff.
Conclusion
For the foregoing reasons, the Intimo Defendants urge that their cross-claims be
permitted to go forward and that the Prestige Defendants motion to dismiss be denied.
Dated: Scarsdale, New York
August 2, 2019
_____________________________
____________________________
Seth
S th L.
L Marcus,
M Esq.
E
Law Offices of Seth L. Marcus
670 White Plains Road, Penthouse
Scarsdale, NY 10583
(t) 212.686.2555
seth@slmarcuslaw.com
6
8 of 8
Preview
FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------------X ROBERT HARRIS, Index No.: 650175/2017 Plaintiff, - against- INTIMO INC., NATHAN NATHAN, individually, TOMMY NATHAN, individually, MORIS ZILKHA, individually, PRESTIGE EMPLOYEE ADMINISTRATORS, INC. a/k/a PRESTIGE EMPLOYEE ADMINISTRATORS, PRESTIGE EMPLOYEE ADMINSTRATORS II, INC. a/k/a PRESTIGE EMPLOYEE ANDMINISTRATORS and JOHN DOES 1-10, and ABC CORPS. 1-10, fictitious namesfor persons or entities whose present roles and identities are unknown, Defendants. ---------------------------------------------------------------------------------X MEMORANDUM OF LAW INTIMO DEFENDANTS OPPOSING THE MOTION TO DISMISS OF THE PRESTIGE DEFENDANTS 1 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 Table of Contents Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .1 Background/Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 1 Argument . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . .. . . . .. . . . .. . . .. . . .. .. . .. . . .. . .. . 2 I. IRRESPECTIVE OF WHETHER PLAINTIFF’S CLAIMS ARE DISMISSED THE PRESTIGE DEFENDANTS REMAIN SUBJECT TO THE INTIMO DEFENDANTS’ CROSS CLAIMS . . . . . . . . . . . . .. . . . 2 II. THE PRESTIGE DEFENDANTS CAN BE FOUND TO BE DIRECTLY LIABLE TO PLAINTIFF TO THE EXTENT THAT HE WAS IN FACT SHORTED SALARY. . . . .. . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 2 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 Preliminary Statement The Defendants Prestige Employee Administrators, Inc. and Prestige Employee Admistrators II, Inc. (collectively “Prestige Defendants”) have not, in the present motion, sought dismissal of the cross-claims asserted against them by the original defendants (collectively “Intimo Defendants”) in this matter. Therefore, even if this Court grants the Prestige Defendants the relief requested (dismissal of all claims against them in plaintiff’s complaint), they must nonetheless remain parties to this dispute, albeit as third-party defendants. Dismissal of all claims in a complaint does not require dismissal of independent cross-claims. Furthermore, if there is in fact any liability owed to plaintiff for unpaid wages and commissions (an issue disputed by Intimo Defendants), then the Prestige Defendants, as a professional employer organization (“PEO”) must be directly liable to plaintiff. Rather than casting doubt on such liability, the documents attached to the Prestige Defendants’ motion, as well as others attached to the affirmation accompanying this opposition, confirm and require that it was the Prestige Defendants who was the “co-employer” directly responsible for the correct payment of wages. New York Labor Law §922 explicitly requires PEOs to retain sufficient authority over their employees (of which plaintiff was indisputably one) to been deemed “employers” for purposes of New York Labor Law. Background/Procedural History The present case, in which plaintiff alleges he was shorted certain salary and commissions, as well as discriminated against due to his age, was filed January 10, 2019 (Doc #1). The Intimo Defendants responded with a motion to dismiss which was decided on December 12, 2018 (Doc #23). Thereafter a discovery order entered, and the Intimo Defendants 1 3 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 filed their initial answer on February 5, 2019 (Doc #23). The parties then commenced document discovery. In the course of conducting initial document discovery, it was revealed that the Prestige Defendants for certain of the years at issue “co-employers” of plaintiff. Per the document attached to the Prestige Defendants present motion (Doc # 55, Ex C), as well as others, it was noted that starting on or about March 29, 2010 it was in fact the Prestige Defendants who were responsible for payroll in this “co-employment” relationship and that plaintiff’s status was that of a “leased” employee of Prestige (Doc# 55, Ex C ¶3). Following this discovery on or about April 23, 2019 the then parties stipulated that plaintiff should amend the complaint to add the Prestige Defendants. The Court so ordered the stipulation on May 28, 2019 (Doc #28). The Prestige Defendants appeared in this case and extended their time to answer or otherwise move on June 25, 2019 (Doc #47). The Intimo Defendants filed an Amended Answer with Cross-Claims on July 2, 2019 (Doc #48). The cross- claims assert, (1) that it was the Prestige Defendants that were responsible for seeing that plaintiff received his proper salary, and (2) that the Intimo Defendants made all payments to the Prestige Defendants required to pay the plaintiffs salary (Doc # 48 ,¶¶ 153-156). Argument I. IRRESPECTIVE OF WHETHER PLAINTIFF’S CLAIMS ARE DISMISSED THE PRESTIGE DEFENDANTS REMAIN SUBJECT TO THE INTIMO DEFENDANTS’ CROSS CLAIMS The Prestige Defendants’ motion only seeks dismissal of the plaintiff’s complaint against them, not dismissal of the cross claims. “[CPLR § 3019(b)] allows a cross-claim for any cause of action and does not require it to be dependent on the claim of the plaintiff.” La France 2 4 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 Carpets, Inc. v. U. S. Rubber Co., 19 A.D.2d 812, 812, 243 N.Y.S.2d 540 (1st Dep’t 1963). “The dismissal [of a cross-claim] was not mandated by the earlier dismissal of plaintiff’s complaint … for failure to prove a Prima facie case.” Brooks v. Chemical Leaman Tank Lines, Inc., 71 A.D.2d 405, 408, 422 N.Y.S.2d 695 (1st Dep’t 1979). See generally, Richardson v. Lindenbaum & Young, 14 Misc.3d 1226(A), 836 N.Y.S.2d 495, 2007 N.Y. Slip Op. 50185(U) (Sup. Kings, 2007). In the present case the cross-claims pled by the Intimo Defendants state a theory of liability against the Prestige Defendants independent of plaintiff’s claims against the Prestige Defendants. In short, the Intimo Defendants pleading states that they paid whatever sums were due to the plaintiff for salary over to the Prestige Defendants, and if plaintiff failed to receive all the salary he was due, the fault was with the Prestige Defendants. To the extent the Intimo Defendants are found liable to plaintiff for shorted salary or commission, then the Prestige Defendants are liable to the Intimo Defendants. Irrespective of whether the Prestige Defendants are directly liable to the plaintiff, they would nonetheless, due to their agreement, be liable to the Intimo Defendants for indemnity, contribution and unjust enrichment. II. THE PRESTIGE DEFENDANTS CAN BE FOUND TO BE DIRECTLY LIABLE TO PLAINTIFF TO THE EXTENT THAT HE WAS IN FACT SHORTED SALARY. The Prestige Defendants attempt to draw a distinction between being a “co-employer”, which they admit that they are, and acting as a “joint employer”, which they believe is a necessary precondition to liability under the New York Labor Law. They attempt to rely on Article 31 of the Labor Law, otherwise known as the New York Professional Employer Act (the “Act”), to support this supposed distinction. If there is in fact some distinction to be drawn between a “co-employer” and a “joint employer”, which is far from clear given that 3 5 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 not a single case cited by the Prestige Defendants expressly makes such a distinction, it is nonetheless a distinction without a difference. The very terms of the Act the Prestige Defendants claim creates the distinction in fact require, that the Prestige Defendants retain sufficient discretion over the terms and conditions of employment to be considered a “joint employer” under the mostly Federal authorities which they cite. Thus, Labor Law §922(1), a provision found within Article 31, provides: 1. A professional employer organization shall meet the following standards: (a) Have a written professional employer agreement between the client and the professional employer organization setting forth the responsibilities and duties of each party. The professional employer agreement shall contain a description of the type of services to be rendered by the professional employer organization and the respective rights and obligations of the parties and the professional employer agreement shall also provide that the professional employer organization: (i) reserves a right of direction and control over the worksite employees. However, the client shall maintain such direction and control over the worksite employees as is necessary to conduct the client's business and without which the client would be unable to conduct its business, discharge any fiduciary responsibility which it may have, or comply with any applicable licensure; (ii) assumes responsibility for the withholding and remittance of payroll-related taxes and employee benefits for worksite employees and for which the professional employer organization has contractually assumed responsibility from its own accounts, as long as the professional employer agreement between the client and professional employer organization remains in force; and (iii) retains authority to hire, terminate and discipline the worksite employees. (b) Provide written notice of the general nature of the relationship between the professional employer organization and the client to the worksite employees located at the client worksite. Unfortunately, the Prestige Defendants failed to attach to their motion seeking dismissal for inter alia clear documentary proof, a copy of their contract with Intimo, a document which the law requires them to generate. That contract, had it been produced, and unfortunately the Intimo Defendants have not been able to locate a copy, would be the single most important document 4 6 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 necessary to illustrate what responsibilities and privileges the Prestige Defendants exercised over the terms of plaintiff’s employment. Fortunately, Labor Law §922 tells us what that contract minimally was required to provide, and even under that minimum standard the Prestige Defendants must be considered a “joint employer”. Thus, the Prestige Defendants contract with Intimo must have provided that the Prestige Defendants “reserves a right of direction and control over the worksite employees,” and that the Prestige Defendants “retains authority to hire, terminate and discipline the worksite employees.” Labor Law §922(1)(a)(i) and (iii). The actual contract may provide even greater discretion to the Prestige Defendants. The documents that are available indicate that the Prestige Defendants did in fact retain significant discretion to direct the terms of the plaintiff’s employment. The “Employee Acknowledgement” attached to the Prestige Defendants motion (Doc #55, Ex. C) refers to the plaintiff as an “at-will leased” employee (Introductory sentence and ¶3), gives Prestige the right to terminate at any time (¶2), requires Prestige to pay plaintiff at least minimum wage for his hours if Intimo does not provide Prestige funds to pay salary (¶3), requires plaintiff to comply with drug testing (¶6), and demands that plaintiff contact “Prestige’s human resource director” if he is subject to any illegal discrimination or harassment while on the job (¶7). The Prestige Defendants also required the plaintiff to fill out an “Application for Employment”, in which the Prestige Defendants again made clear that plaintiff was an at will employee and gave the Prestige Defendants the right to verify plaintiffs background information. Marcus Affirm Ex. B. Confirming the Prestige Defendants responsibility for payroll, they had plaintiff sign an Authorization and Waiver for wage deductions and a direct deposit agreement. Marcus Affirm Ex. C. 5 7 of 8 FILED: NEW YORK COUNTY CLERK 08/02/2019 02:49 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/02/2019 Rather than supporting dismissal, the incomplete documentary record produced, supports just the opposite conclusion; namely that the Prestige Defendants may be found directly liable to plaintiff if plaintiff can in fact demonstrate that he was shorted wages and/or other compensation. The documents which have been produced so far show that the Prestige Defendants had a direct employer relationship with the plaintiff and that it was the Prestige Defendants who were responsible for assuring the plaintiff received correct compensation. It stands to reason that if a mistake were made regarding plaintiff’s wages, then it was the Prestige Defendants that was responsible. Given this Courts obligation to draw all reasonable inferences in favor of the pleading, it is far to soon to dismiss the Prestige Defendants possible direct liability to plaintiff. Conclusion For the foregoing reasons, the Intimo Defendants urge that their cross-claims be permitted to go forward and that the Prestige Defendants motion to dismiss be denied. Dated: Scarsdale, New York August 2, 2019 _____________________________ ____________________________ Seth S th L. L Marcus, M Esq. E Law Offices of Seth L. Marcus 670 White Plains Road, Penthouse Scarsdale, NY 10583 (t) 212.686.2555 seth@slmarcuslaw.com 6 8 of 8