Motion for Appointment re Probate in Robert Harris v. Intimo, Inc., Nathan Nathan, Tommy Nathan, Moris Zilkha, Prestige Employee Administrators, Inc. A/K/A Prestige Employee Administrators, Prestige Employee Administrators Ii, Inc. A/K/A Prestige Employee Administrators, John Does 1 - 10, Abc Corps. 1

On January 10, 2017 a Motion,Ex Parte was filed involving a dispute between Robert Harris, and Abc Corps. 1 - 8, Intimo, Inc., John Does 1 - 10, Moris Zilkha, Nathan Nathan, Prestige Employee Administrators Ii, Inc. A K A Prestige Employee Administrators, Prestige Employee Administrators, Inc. A K A Prestige Employee Administrators, Tommy Nathan, for Commercial - Contract in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ROBERT HARRIS, :
: Index No. 650175/2017
Plaintiff, :
: Hon. Nancy Bannon
vs. : Part 42
:
INTIMO, INC., NATHAN NATHAN : Mot. Seq. No. 2
individually , TOMMY NATHAN, individually, :
MORIS ZILKHA, individually, PRESTIGE :
EMPLOYEE ADMINISTRATORS, INC. a/k/a :
PRESTIGE EMPLOYEE ADMINISTRATORS, :
PRESTIGE EMPLOYEE ADMINISTRATORS :
II, INC. a/k/a PRESTIGE EMPLOYEE :
ADMINISTRATORS and JOHN DOES 1-10, :
and ABC CORPS. 1-8, fictitious names for :
persons or entities whose roles and identities :
are unknown, :
:
Defendants. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DEFENDANTS PRESTIGE EMPLOYEE ADMINISTRATORS, INC. AND PRESTIGE
EMPLOYEE ADMINISTRATORS II, INC.’S REPLY IN FURTHER SUPPORT OF
THEIR MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

FISHER & PHILLIPS LLP
David B. Lichtenberg, Esq.
Eric T. Baginski, Esq.
430 Mountain Avenue, Suite 303
Murray Hill, New Jersey 07974
Telephone: (908) 516-1050
Fax: (908) 516-1051
Email: dlichtenberg@fisherphillips.com
ebaginski@fisherphillips.com

Attorneys for Defendants
Prestige Employee Administrators, Inc. and
Prestige Employee Administrators II, Inc.

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TABLE OF CONTENTS

ARGUMENT .................................................................................................................................. 1

I. PRESTIGE WAS MERELY A CO-EMPLOYER, NOT A JOINT EMPLOYER, AND
THUS CANNOT BE LIABLE UNDER THE NEW YORK LABOR LAW, THE NEW
YORK STATE HUMAN RIGHTS LAW, OR THE NEW YORK CITY HUMAN RIGHTS
LAW. ....................................................................................................................................... 1

II. PLAINTIFF IS STILL BARRED FROM ASSERTING ANY ENTITLEMENT TO
COMMISSIONS OR OTHER UNPAID WAGES. ................................................................ 9

III. THE CROSS CLAIMS MUST BE DISMISSED SUA SPONTE. ........................................ 10

IV. LEAVE TO AMEND THE COMPLAINT MUST BE DENIED. ........................................ 12

CONCLUSION ............................................................................................................................. 14

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TABLE OF AUTHORITIES

Cases

Alvarracin v. Volume Servs., Inc.,
No. 17-CV-3873 (PKC), 2018 WL 2452766 (S.D.N.Y. May 30, 2018) ................................ 8, 9

Beck v. Boce Grp.,
391 F. Supp. 2d 1183 (S.D. Fla. 2005)............................................................................. 4, 6, 7,8

Brankov v. Hazzard,
36 N.Y.S.3d 133 (1st Dep’t 2016) .................................................................................. 2, 3, 4, 6

City of New York v. Lead Indus. Ass’n, Inc.,
644 N.Y.S.2d 919 (1st Dep’t 1996) .......................................................................................... 12

Coldwell v. Ritecorp Envtl. Prop. Solutions, Inc.,
No. 16-1998, 2017 WL 1737715 (D. Color. May 4, 2017) ............................................ 2, 5, 7, 8

Dalton v. Union Bank of Switzerland,
520 N.Y.S.2d 764 (1st Dep’t 1987) .......................................................................................... 12

Domino’s Pizza Inc.,
No. 16CV2492AJNKNF, 2018 WL 4757944 (S.D.N.Y. Sept. 30, 2018) ...................... 2, 3, 5, 6

DRMAK Realty LLC v. Progressive Credit Union,
18 N.Y.S.3d 618 (1st Dep’t 2015) ............................................................................................ 11

Fairpoint Companies, LLC v. Vella,
22 N.Y.S.3d 49 (1st Dep’t 2015) .............................................................................................. 13

Gray v. Met Contracting Corp.,
167 N.Y.S.2d 498 (1st Dep’t 1957) .......................................................................................... 10

Green Point Sav. Bank v. Pagano,
477 N.Y.S.2d 199 (2d Dep’t 1984) ........................................................................................... 10

Koch v. Sheresky, Aronson & Mayefsky LLP,
78 N.Y.S.3d 20 (N.Y. App. Div.).............................................................................................. 13

Lima v. Addeco,
634 F. Supp. 2d 394 (S.D.N.Y. 2009), 375 F. App’x 54 (2d Cir. 2010)................................. 2, 3

Livathinos v. Vaughan,
994 N.Y.S.2d 109 (1st Dep’t 2014) ............................................................................................ 9

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Long Island Sav. Bank v. Savage,
497 N.Y.S.2d 914 (1st Dep’t 1986), aff’d, 69 N.Y.2d 751 (1987) ........................................... 10

Lubov v. Berman,
687 N.Y.S.2d 628 (1st Dep’t 1999) .......................................................................................... 10

Montefiore Med. Ctr. v. Crest Plaza, LLC,
921 N.Y.S.2d 327 (2011) ............................................................................................................ 9

Nardi v. ALG Worldwide Logistics & Transp. Leasing Co.,
130 F. Supp. 3d 1238 (N.D. Ill. 2015) ................................................................................ 2, 4, 5

Richards Plumbing & Heating Co. v. Washington Grp. Int’l, Inc.,
874 N.Y.S.2d 410 (1st Dep’t 2009) .......................................................................................... 11

Shoemaker v. Conagra Foods, Inc.,
No. 2:14-CV-153, 2015 WL 418271 (E.D. Tenn. Feb. 2, 2015) ................................................ 2

Trustees of Columbia Univ. in City of N.Y. v. Mitchell/Giurgola Assocs.,
492 N.Y.S.2d 371 (1985) .......................................................................................................... 11

Woldu v. Hotel Equities, Inc.,
No. 09-685, 2009 WL 10668443 (N.D. Ga. Sept. 18, 2009) .................................................. 2, 5

Y.A. v. Conair Corp.,
62 N.Y.S.3d 116 (1st Dep’t 2017) ............................................................................................ 13

Statutes

N.Y. Lab. Law § 922 ...................................................................................................... 7, 8, 11, 12

Other Authorities

Joint Employer Status Under the Fair Labor Standards Act, 84 FR 14043-02 .............................. 3

United States Equal Employment Opportunity Commission (EEOC), Compliance Manual,
Section 2-III B.1 a.iii, issued May 12, 2000 ................................................................................... 3

Rules

29 C.F.R. § 791.2 ............................................................................................................................ 3

CPLR 1401.................................................................................................................................... 11

CPLR 3025(b) ......................................................................................................................... 12, 13

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29 C.F.R. § 825.106 ........................................................................................................................ 3

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Defendants Prestige Employee Administrators, Inc. and Prestige Employee Administrators

II, Inc. (collectively “Prestige”) hereby submit this Reply Memorandum of Law in Further Support

of the Motion to Dismiss the First Amended Complaint, and in response to the briefs filed in

opposition to Prestige’s Motion by Plaintiff Robert Harris (“Plaintiff”) and Defendants Intimo,

Inc., Nathan Nathan, Tommy Nathan, and Morris Zilkha (collectively the “Intimo Defendants”).

ARGUMENT

I. PRESTIGE WAS MERELY A CO-EMPLOYER, NOT A JOINT EMPLOYER,
AND THUS CANNOT BE LIABLE UNDER THE NEW YORK LABOR LAW, THE
NEW YORK STATE HUMAN RIGHTS LAW, OR THE NEW YORK CITY
HUMAN RIGHTS LAW.

Plaintiff and the Intimo Defendants confusingly mangle clear-cut doctrine in a desperate

attempt to conflate Prestige’s status as a co-employer with that of a joint employer. In order to be

held liable under the New York Labor Law (“NYLL”), New York State Human Rights Law, and

the New York City Human Rights Laws (“NYSHRL” and “NYCHRL”), the Complaint must

allege – but cannot allege – the existence of direct, formal employer-employee relationship or what

case law, regulations, and agency guidelines distinctly refer to as a joint employer relationship.

Prestige is a PEO as conceded by Plaintiff in the Complaint. (Lichtenberg Aff., Ex. B at 8

¶¶ 38, 44.) Prestige’s own website, of which this Court may take judicial notice, clearly describes

what a PEO is and the sort of relationship it has with its clients, such as Intimo:

A Professional Employer Organization (PEO) partners with small to mid-sized
businesses so they can offer their employees top tier benefits, human resource and
compliance services that are typically only available from large corporate
employers. A PEO delivers employee-focused services by establishing and
maintaining an employer relationship with the employees at the client’s place of
business and by contractually assuming certain employer rights,
responsibilities, and risk. This shared employment relationship is called co-
employment.

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(Id., Ex. A at 1.) Prestige status a co-employer, rather than a joint-employer, is furthermore

acknowledged by Plaintiff. (Id., Ex. C at 1 (“I, the undersigned employee, in consideration of my

co-employment by Prestige Employee Administrators, Inc. (‘Prestige’) . . . .”).)

The legal test for holding Prestige liable under the NYLL, NYSHRL, or NYCHRL is a

joint employer test, not a co-employer test. See In re Domino’s Pizza Inc., No.

16CV2492AJNKNF, 2018 WL 4757944, at *4–9 (S.D.N.Y. Sept. 30, 2018); Lima v. Addeco, 634

F. Supp. 2d 394, 400 (S.D.N.Y. 2009), aff’d sub nom. Lima v. Adecco &/or Platform Learning,

Inc., 375 F. App’x 54 (2d Cir. 2010); Brankov v. Hazzard, 36 N.Y.S.3d 133, 134 (1st Dep’t 2016).

Co-employment is insufficient for liability to arise. Courts have recognized the distinction

between co-employment and joint-employment, accepted the status of PEOs as mere co-

employers, and dismissed discrimination and wage and hour claims against PEOs due to their

limited administrative roles. See Coldwell v. Ritecorp Envtl. Prop. Solutions, Inc., No. 16-1998,

2017 WL 1737715, at *2-3, 7-10 (D. Color. May 4, 2017) (granting summary judgment to PEO

that co-employed plaintiffs on plaintiffs’ federal and state wage and hour claims); Shoemaker v.

Conagra Foods, Inc., No. 2:14-CV-153, 2015 WL 418271, at *5–6 (E.D. Tenn. Feb. 2, 2015)

(dismissing discrimination claim against alleged “co-employer”); see also Woldu v. Hotel Equities,

Inc., No. 09-685, 2009 WL 10668443, at *13 (N.D. Ga. Sept. 18, 2009) (granting PEO’s motion

to dismiss discrimination claims and denying plaintiff’s motion to amend); Nardi v. ALG

Worldwide Logistics & Transp. Leasing Co., 130 F. Supp. 3d 1238, 1248-49 (N.D. Ill. 2015)

(granting summary judgment in favor of PEO on discrimination claims); Beck v. Boce Grp., 391

F. Supp. 2d 1183 (S.D. Fla. 2005) (granting summary judgment in favor of PEO on wage and hour

claims). Plaintiff and the Intimo Defendants simply ignore this broad scope of authority that

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overwhelming supports Prestige’s Motion to Dismiss, attempting to distract the Court with

unfounded arguments that have no legal basis.

New York courts have looked to federal law to guide their application of the joint employer

doctrine. See Domino’s, 2018 WL 4757944, at *4; Brankov, 36 N.Y.S.3d at 134. In that

connection, federal regulations and guidelines are persuasive and similarly require an entity to be

a joint-employer, rather than a co-employer, before liability can result. Current and proposed

regulations to the Fair Labor Standards Act utilize a joint employer, not a co-employer test. See

29 C.F.R. § 791.2; Joint Employer Status Under the Fair Labor Standards Act, 84 FR 14043-02.

The “Threshold Issues” section of the EEOC’s Compliance Manual addresses “Special Issues

Regarding Multiple Entities.” United States Equal Employment Opportunity Commission

(EEOC), Compliance Manual, Section 2-III B.1 a.iii, issued May 12, 2000, available at

https://www. eeoc.gov/policy/docs/threshold.html. Per the Compliance Manual, where multiple

entities are involved, as is the case here, liability cannot stem from an entity’s status as a co-

employer. A plaintiff must show that the entity is a “joint employer.”1 Joint employment, not co-

employment, is the relevant inquiry under other federal regulations. See 29 C.F.R. § 825.106 (“A

PEO does not enter into a joint employment relationship with the employees of its client companies

when it merely performs such administrative functions.”).

Given that joint-employment, not mere co-employment, is what may lead to liability under

the NYLL, NYSHRL, or the NYCHRL, the Complaint, in order to withstand Prestige’s Motion to

Dismiss, must demonstrate that Prestige had the requisite control over the terms and conditions of

Plaintiff’s employment. See Domino’s, 2018 WL 4757944, at *4–9; Lima, 634 F. Supp. 2d at 400;

1
As the only other alternative referenced, an employer-employee relationship might be established where two entities
are “so intertwined that they can be considered [a] single employer.” Id.; accord Lima, 634 F. Supp. 2d at 400. The
Complaint does not allege any facts to support joint liability under the single employer doctrine.

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Brankov, 36 N.Y.S.3d at 134. The Complaint nowhere pleads that Prestige did, referencing

Prestige in only “The Parties” section of the Complaint. (Lichtenberg Aff., Ex. B at 8-9 ¶¶ 38-51.)

Plaintiff and the Intimo Defendants improperly rely on extrinsic evidence to salvage the poorly

pleaded Complaint. Extrinsic evidence may only be used in support of a movant’s defense on a

motion to dismiss, however. See CPLR 3211(a)(1).

Even if the Court decides to indulge Plaintiff and the Intimo Defendants’ improper use of

extrinsic evidence, none of the exhibits show that Prestige controlled Plaintiffs’ employment

sufficiently enough to warrant joint liability with Intimo. To be sure, the “Employee Termination

Report” refers to Plaintiff’s termination from Intimo, not Prestige. (Meyers Aff., Ex. 4.) The

“Application for Employment” refers to Plaintiff’s employment with “Company Name Intimo,”

not Prestige. (Id., Ex. 5.) The “Authorization & Waiver” recognizes Prestige’s limited role in

processing Intimo’s payroll. (Id., Ex. 6.) The “COBRA Notice Acknowledgement Form” is on

Intimo’s behalf. (Id., Ex. 7.) The “Handbook Acknowledgement Form” states that that Plaintiff

is “an employee of Intimo, Inc.,” rather than Prestige, and explains how Intimo can make changes

to the handbook at its discretion and terminate Plaintiff for any reason because he was an employee

at will of Intimo. (Id., Ex. 9.) That these documents, all of a limited administrative nature, are on

“Prestige Employee Administrators” letterhead is not enough to show that Prestige had sufficient

control over Plaintiff’s employment. Prestige was simply an administrator of client employees

– as Prestige’s full business names suggest. See Nardi, 130 F. Supp. 3d 1238, 1248-49 (N.D. Ill.

2015) (providing printed forms and procedures for employee review and discipline, issuing

paychecks, and administering benefits cannot establish a joint employer relationship); Beck, 391

F. Supp. 2d at 1187-93 (providing forms and handbook policies and procedures and preparing

payroll checks insufficient for there to be joint employer relationship).

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The employee handbook is no more helpful to Plaintiff and the Intimo Defendants’ efforts

to save the suit against Prestige. The front cover explicitly states that Prestige prepared the

handbook “for Intimo, Inc.” (Meyers Aff., Ex. 8 at DEF000091.) The first line of the handbook

acknowledgment form states, “I agree that as an employee of Intimo, Inc., I am subject to the

terms and conditions of the attached Handbook.” (Id. at DEF000092.) The “Welcome” page of

the handbook again states that the handbook “was developed by Prestige for the utilization of

Intimo, Inc.” (Id. at DEF000095.) The “Welcome” page of the handbook goes on to explain that

Prestige is a PEO, is a co-employer with Intimo, and Prestige and Intimo allocated responsibilities,

with Prestige’s being administrative and limited in nature:

. . . In a co-employment relationship, duties and responsibilities are allocated
between Prestige and the Company. Both are your employers. Prestige is a
Professional Employer Organization (PEO). Prestige is responsible for activities
that are normally associated with an employer with significant administrative
duties, including payment of wages, withholding of taxes, and providing
employee benefits and other human resources programs. Prestige will be
administering all of the employment policies, human resources procedures and
benefits, on behalf of Intimo, Inc. All human resources references in this
Handbook should be directed to Prestige. Employees should familiarize
themselves with the contents of this Handbook as soon as possible, for it will
answer many questions about employment with the Company.

(Id.) (emphasis added).

As confirmed by the handbook, Prestige’s role in Plaintiff’s employment was purely

limited to administrative tasks. Intimo was Plaintiff’s employer in all other respects. All that

Prestige did in its co-employment relationship with Prestige was facilitate Intimo’s payment of

wages to Plaintiff, provide benefits, and create a handbook for use by Intimo and its employees.

None of those duties are enough to establish a joint employer relationship under the NYLL, the

NYSHRL, or the NYCHRL. See Domino’s, 2018 WL 4757944, at *4–9; Coldwell, 2017 WL

1737715, at *2-3, 7-10; Nardi, 130 F. Supp. 3d at 1248-49; Woldu, 2009 WL 10668443, at *13;

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Beck, 391 F. Supp. 2d at 1187-93; Brankov, 36 N.Y.S.3d at 134. Prestige did not hire or fire

Plaintiff; Prestige did not control Plaintiff’s work schedule or how Plaintiff performed his job;

Plaintiff did not perform his work on Prestige’s premises or for Prestige; Plaintiff was not

economically dependent on Prestige; Prestige did not supervise Plaintiff’s work; Prestige did not

determine the rate of payment or method of payment for Plaintiff; and, to the extent it maintained

any records, those were limited to a small set of administrative documents. See Domino’s, 2018

WL 4757944, at *4–9; Brankov, 36 N.Y.S.3d at 134.

Plaintiff attempts to cite other provisions of the handbook in an effort to suggest that

Prestige had actual control over Plaintiff, but misreads and interprets every single provision cited.

The “Code of Conduct” section addresses Plaintiff’s relationship with the “Company,” which is in

the first instance of the handbook clarified to be Intimo, not Prestige. (Meyers Aff., Ex. 8 at

DEF000101.) The cover of the handbook says, “This Handbook is the property of Prestige

Employee Administrators, Inc. (“Prestige”) and Intimo, Inc. (“the Company”).” (Id. at

DEF000091 (emphasis added).) The “Attendance” policy relates to Intimo, because Plaintiff never

had to report to Prestige, and Plaintiff does not allege that he did. (Id. at DEF000108.) The

“Disciplinary and Employee Conduct Policies” pertain to Plaintiff’s actions at Intimo that could

result in “dismissal from the Company” (i.e., Intimo), not Prestige. (Id. at DEF000102-03.) The

“Performance Reviews” section is obviously not applicable to Prestige as Plaintiff did not

“perform” any services for Prestige. As well, the section refers to the “Company Human

[R]esources Specialist,” not anyone from Prestige. (Id. at DEF000109.) Lastly, the “Separation

of Employment” section references Intimo only and does not demonstrate how Prestige exercised

control over Plaintiff’s separation. (Id. at DEF000119.)

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Furthermore, the Intimo Defendants make an interpretative mess of the New York

Professional Employer Act (“Act”) and wrongly suggest that any PEO agreement created pursuant

to it automatically results in joint employer liability for a PEO. But that is wrong and unsupported

by law. The Act simply requires PEOs to have agreements between it and its clients (e.g., Intimo)

that set forth “the responsibilities and duties” between each of them. N.Y. Lab. Law § 922. The

agreements must also provide that the PEO “reserves a right of direction and control over the

worksite employees,” “assumes responsibility for the withholding and remittance of payroll-

related taxes and employee benefits,” and “retains authority to hire, terminate and discipline the

worksite employees.” Id. Yet none of that is sufficient to establish joint employer liability.

In Coldwell, the court noted that the PEO retained certain rights, including:

the right to hire, fire, and discipline employees, provide for the welfare and benefit
of co-employees, assign coemployees to subscriber locations, set co-employees
rates of pay, maintain employment records, provide unemployment compensation
required as an employer, sponsor and administer workers compensation plans,
health plans, employee benefit plans, and address co-employee’s complaints,
claims, or requests related to employment.

2017 WL 1737715, at *3.

The court ultimately held that the PEO could not be liable on plaintiffs’ federal and state

wage and hour claims. The court reasoned that merely retaining such rights was insufficient to

hold a PEO liable as a joint employer. The fact that Prestige “could exercise control” is not

dispositive. Id. at *7-10. What is dispositive is “who actually exercise[d] control.” Id. at *9; see

also Beck, 391 F. Supp. 2d at 1190 (“Plaintiffs contend that the Defendant had the power to hire,

fire, and modify conditions of the Plaintiffs’ employment because under the terms of the SSA the

Defendant retained the authority to hire, terminate, discipline, and reassign leased employees; and

leased employees were not to work in any other location. . . . However, the Plaintiffs have not

pointed to any evidence drawn from the actual working relationship between the Defendant and

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Plaintiffs which indicates that Presidion Solutions, Inc. in fact possessed the right to hire, fire, or

modify Plaintiffs’ employment conditions or ever exercised that right.”).

Neither the Complaint nor any extrinsic evidence shows that Prestige exercised actual

control over Plaintiff. While Prestige may have been “responsible” for processing Intimo’s payroll

and benefits for Plaintiff, there is no allegation in Plaintiff’s Complaint – or even in the Intimo

Defendants’ conclusory Cross Claims – that Prestige was responsible for determining the rates and

methods of Plaintiff’s payment, the types and scope of Plaintiff’s benefits, or even compliance

with the NYLL. See Coldwell, 2017 WL 1737715, at *5, 7, 9. All of that was the responsibility

of the Intimo Defendants, not Prestige, and the allegations in the Complaint, along with the

annexed email exhibits, demonstrate that Prestige had absolutely no involvement in determining

Plaintiff’s commissions and other wages.2

Plaintiff’s reliance on Alvarracin v. Volume Servs., Inc., No. 17-CV-3873 (PKC), 2018 WL

2452766 (S.D.N.Y. May 30, 2018) is misplaced and not applicable to the instant case. Comparable

facts are not alleged and none are supported by the extrinsic evidence supplied by Plaintiff and the

Intimo Defendants. Prestige simply prepared a handbook for Intimo to use with Plaintiff and its

other employees. A handbook, though, is insufficient to give rise to joint employer liability. See

Beck, 391 F. Supp. 2d at 1189 (“. . . [A]fter reviewing the provisions in this handbook this Court

finds that those provisions are too generic and formulaic to serve as evidence that the Defendant

exercised the requisite degree of control over the Plaintiffs.”). Compliance with the handbook was

also at the discretion of Plaintiff and the Initimo Defendants. Plaintiff also did not work at

2
Plaintiff and the Intimo Defendants take issue with Prestige not appending its agreement between it and Intimo to its
Motion to Dismiss. That is unnecessary, as the Complaint pleads both Prestige’s status as a PEO and the existence of
an agreement with Intimo. (Lichtenberg Aff., Ex. B at 8-9 ¶¶ 38, 42, 44, 48.)Further, any agreement between them
would have to incorporate the terms with which the Intimo Defendants take issue. See N.Y. Lab. Law § 922.

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Prestige’s premises, but only at Intimo’s. Plaintiff also does not allege that Prestige could have

made any “‘reasonable and significant’ objection” to Plaintiff’s employment or “demand his

replacement.” See Alvarracin, 2018 WL 2452766, at *3. Nothing in the Complaint suggests that

Prestige played a significant enough role in “setting the terms and conditions of the [Plaintiff’s]

work.” See id.

Based on the foregoing, Counts One, Two, Three of the Complaint must be dismissed

because Prestige was not Plaintiff’s joint employer.

II. PLAINTIFF IS STILL BARRED FROM ASSERTING ANY ENTITLEMENT TO
COMMISSIONS OR OTHER UNPAID WAGES.

Prestige never used the term “waiver” in its opening brief. What Plaintiff’s Employee

Acknowledgment (“Acknowledgment”) does is bar Plaintiff from claiming the existence of a

contract that could lead to an alleged breach or violation of the NYLL. (Lichtenberg Aff., Ex. C

at 1.) Synonyms for that term and its variants are estop and estoppel. ESTOPPEL, Black’s Law

Dictionary (11th ed. 2019) (“A bar that prevents one from asserting a claim or right that contradicts

what one has said or done before . . . .”).

In the Acknowledgment,3 Plaintiff “acknowledge[d] and agree[d]” that Prestige was

simply his co-employer and there was no agreement between them due to that limited relationship.

(Id. at ¶ 1.) Plaintiff is therefore estopped from now alleging the existence of an agreement

between him and Prestige entitling him to commissions and supposed “shorted” wages. See

Livathinos v. Vaughan, 994 N.Y.S.2d 109, 109–10 (1st Dep’t 2014); Montefiore Med. Ctr. v. Crest

3
The terms of the Acknowledgment are plain. Plaintiff or someone else obviously and mistakenly inserted Plaintiff’s
name on the “Client” line of the Acknowledgement. See Castellano v. State, 43 N.Y.2d 909, 911 (1978) (“To carry
out the intention of a contract, words may be transposed, rejected, or supplied, to make its meaning more clear.”).

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Plaza, LLC, 921 N.Y.S.2d 327, 329 (2011); Gray v. Met Contracting Corp., 167 N.Y.S.2d 498,

501 (1st Dep’t 1957).4

For those reasons, Counts One and Four of the Complaint must be dismissed.

III. THE CROSS CLAIMS MUST BE DISMISSED SUA SPONTE.

The Intimo Defendants did not demand an answer in their Cross Claims. Therefore,

Prestige was not obligated to respond to them, and the Cross Claims “are deemed to be denied” by

Prestige. See Green Point Sav. Bank v. Pagano, 477 N.Y.S.2d 199, 199 (2d Dep’t 1984).

Regardless, dismissal of the Intimo Defendants’ Cross Claims against Prestige is

appropriate, and the Court may do so sua sponte. See Long Island Sav. Bank v. Savage, 497

N.Y.S.2d 914, 917 (1st Dep’t 1986), aff’d, 69 N.Y.2d 751 (1987) (“Since we find that the account

was not properly modified and that defendant Savage, is the sole beneficiary, the defendant estates

of Francine J. Robinson and Frances Blackman have no claim against her and the sua sponte

dismissal of their cross claims against defendant Savage is likewise affirmed.”); see also Lubov v.

Berman, 687 N.Y.S.2d 628, 629 (1st Dep’t 1999) (“Although dismissal of the cross claims was

not specifically requested, it was plainly warranted in light of the court’s finding that Coastal

Abstract had not breached any duty with which it might have been charged in connection with the

recording of the subject second mortgage.”).

Here, the main allegations made by the Intimo Defendants in support of their Cross Claims

are that “Intimo made any and all payments necessary to [Prestige] for [Prestige] to make all

payments owed to Plaintiff for any salary, benefits, withholding and/or any other compensation to

which Plaintiff was owed” and that any failure by Plaintiff to receive “any salary, benefits,

withholding and/or any other compensation” was the “responsibility” of Prestige. (Marcus Aff.,

4
Notably, Plaintiff does not deny anywhere in his Opposition that the Acknowledgment was signed by him.

10
FPDOCS 35891916.1

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Ex. A at 11 at ¶¶ 155-56.) But those are conclusory allegations, which are wholly insufficient to

withstand Prestige’s Motion to Dismiss. See DRMAK Realty LLC v. Progressive Credit Union,

18 N.Y.S.3d 618, 621 (1st Dep’t 2015).

Prestige, as its full business name reveals, was merely an administrator in Plaintiff’s

employment relationship with Intimo. Although Prestige may have been “responsible” for

processing Intimo’s payroll and benefits for Plaintiff on an administrative level, the Cross Claims

lack any allegation that Prestige was “responsible” for determining the rates and methods of

payment for Plaintiff, Plaintiff’s benefits, or even compliance with the NYLL. All that Prestige

did was channel wages determined by Intimo to Plaintiff. (See Lichtenberg Aff., Ex. C at 1 ¶¶ 3-

5.) Prestige’s limited role in administrating Intimo’s payroll is further confirmed by the PEO Act,

which simply refers to a PEO’s “responsibility for the withholding and remittance of payroll-

related taxes and employee benefits for worksite employees.” See N.Y. Lab. Law § 922.

Moreover, the Intimo Defendants completely fail to allege the requisite elements for

contribution, indemnification, unjust enrichment, and restitution – and nor can they do so. To

begin with, the contribution claim fails because it is based on economic losses, not any injury to

Plaintiff personally or to his property. See Richards Plumbing & Heating Co. v. Washington Grp.

Int’l, Inc., 874 N.Y.S.2d 410, 411 (1st Dep’t 2009) (“While two or more entities that ‘are subject

to liability for damages for the same personal injury, injury to property or wrongful death, may

claim contribution’ from the other (CPLR 1401), a purely economic loss resulting from a breach

of contract does not constitute an ‘injury to property’ within the meaning of CPLR 1401.”).

The indemnification claim also fails and must be dismissed. First, indemnification cannot

be asserted by any party that has participated in the alleged wrongdoing, which includes th

Case Info

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Nancy M. Bannon Track Judge’s New Case

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Document Filed Date

August 08, 2019

Case Filing Date

January 10, 2017

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Parties

ABC Corps. 1 - 8 Defendant
BAGINSKI, ERIC TADEUSZ Attorney for the Defendants
Intimo, Inc. Defendant
John Does 1 - 10 Defendant
LICHTENBERG, DAVID B. Attorney for the Defendant
LICHTENBERG, DAVID B. Attorney for the Defendants
MARCUS, SETH L Attorney for the Defendant
MARCUS, SETH L Attorney for the Defendants
MEYERS, JONATHAN Attorney for the Plaintiff
Moris Zilkha Defendant
Nathan Nathan Defendant
Prestige Employee Administrators II, Inc. a/k/a Prestige Employee Administrators Defendant
Prestige Employee Administrators, Inc. a/k/a Prestige Employee Administrators Defendant
Robert Harris Plaintiff
Tommy Nathan Defendant
JONATHAN MEYER Attorneys for Plaintiffs
Jessica Meyers Attorneys for Plaintiffs
ERIC TANT Attorneys for Defendants

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Motion,Ex Parte: Robert Harris v. Intimo, Inc., Nathan Nathan, Tommy Nathan, Moris Zilkha, Prestige Employee Administrators, Inc. A/K/A Prestige Employee Administrators, Prestige Employee Administrators Ii, Inc. A/K/A Prestige Employee Administrators, John Does 1 - 10, Abc Corps. 1 - 8

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