Preview
INDEX NO. 518645/2021
NYSCEF DOC. NO. 138 RECEIVED NYSCEF 08/11/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
GUSTAVO MATUTE, individually and on behalf of all other
persons similarly situated who were employed by BLUE STONE Index No.: 518645/2021
CONCRETE CORP., ELITE CONCRETE NY LLC and FREDDY
CORDERO and ZALMAN BROOK,
Plaintiffs,
- against -
BLUE STONE CONCRETE CORP., ELITE CONCRETE NY LLC
and any other entities affiliated with, controlling, or controlled by
BLUE STONE CONCRETE CORP., ELITE CONCRETE NY LLC
and FREDDY CORDERO and ZALMAN BROOK individually,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO
DISMISS AND FOR SANCTIONS
VIRGINIA & AMBINDER, LLP
Leonor H. Coyle, Esq.
Jenny S. Brejt, Esq.
40 Broad Street, 7th Floor
New York, New York 10004
Attorneys for Plaintiff and the Putative Class
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES Iv
PRELIMINARY STATEMENT
BACKGROUND
ARGUMENT
I DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(1) SHOULD
BE DENIED.
A CPLR § 3211(a)(1) Legal Standard
B Defendants Have Failed to Submit Documentary Evidence Definitively
Disposing of Plaintiffs’ Claims
Plaintiff Matute Would Be a Suitable Class Representative
Defendants’ Arguments Regarding Class Claims Are Premature at This Stage
IL DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(7) SHOULD
BE DENIED
A CPLR § 3211(a)(7) Legal Standard
B Plaintiffs’ Complaint Is Sufficient to Put Defendants on Notice of Their
Claims 10
Plaintiffs’ FAC Contains Sufficient Detail Regarding Their Claims 12
It Is Reasonable That Plaintiffs Changed the Hours Worked When the
Complaint Was Amended 13
E Plaintiffs’ Complaint Properly Includes Elite Concrete and Zalman Brook ...13
Til. DEFENDANTS’ MOTION TO SANCTION THE NAMED PLAINTIFF AND
PLAINTIFFS’ COUNSEL SHOULD BE DENIED 15
A. 22 NYCRR 130-1.1 Legal Standard... 15
B. This Action is Not Frivolous and is Being Pursued in Good Faith 16
ii
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IV. Alternatively, Plaintiffs Request Leave to Amend the Complaint ceeseeseseeseceeseeseeeeseeeeeeeees 19
CONCLUSION seescesceseesecscesscssessceseeesssesaeessceacsecsecsscsecessaceseesscsesseessesssecseseassaeesscsesseeseeesseeeeeeeseeaeens 19
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TABLE OF AUTHORITIES
CASES PAGE
511 W. 232nd Owners Corp. v. Jennifer Realty Co.
98 NY2d 144 (2002)
ABN Amro Bank, N.V. v. MBIA Inc.,
17 N.Y.3d 208 (2011)
Ackerman v. New York Hosp. Med. Ctr. of Queens,
127 A.D.3d 794 (2d Dep’t 2015) 12
Anderson v. Mt. Clemens Potte: Co.,
328 U.S. 680 (1946) 12, 13
Bayne v. Napw, Inc.,
2021 US Dist LEXIS 151438 (E.D.N.Y. 2021) 18
Bernarez v. Alternate Staffing, Inc.
2020 NY Slip Op 33067[U] (Sup. Ct. N.Y. Cty. 2020) 18
Bernstein v. Kelso & Co.,
231 A.D.2d 314 (Ist Dept. 1997) 10
Brown v. Mahdessian,
2021 N.Y. Misc. LEXIS 4562 (Sup Ct, NY County 2021) aff'd 206 A.D.3d 511 (1st Dept. 2022)
17
Cardona v. Maramont Corp.,
993 N.Y.S.2d 643 (Sup. Ct.) ..c.ceccececeseseeseseeseseseesesessessseessseseeasseesssesseassesssseseeasseseaeseeesseeneaeeee 12, 18
Citibank N.A. v. Burns,
187 A.D.3d 839 (2d Dept 2020) 3,7
Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc.,
184 A.D.3d 803 (2d Dept 2020)
Dabrowski v. Abax, Inc.,
84 A.D.3d 633 (Ist Dept. 2011) 17
Davis v. Henry,
212 A.D.3d 597 (2d Dept 2023)
EBC I, Inc. v. Goldman Dachs & Co.,
5.N.Y.3d 11 (2005)
iv
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Foley v. ’Agostino,
21 A.D.2d 60 (Ist Dept. 1964)
Fontanetta v. John Doe 1
73 AD3d 78 (2d Dept 2010)
Galdamez v. Biordi Constr. Corp.,
2006 N.Y. Misc. LEXIS 2952 (Sup. Ct. N.Y. Cty., 2006) aff'd 50 A.D.3d 357 (1st Dept. 2008)
17
Garcia v. Polsky, Shouldice & Rosen, P.C.
161 A.D.3d 828 (2d Dept. 2018)
Goshen v. Mutual Life Ins. Co. of N.Y.
98 NY2d 314 (2002)
Guzmanv. VLM, Inc.,
2008 U.S. Dist. LEXIS 15821 (E.D.N.Y. 2008) 18
Granada Condominium III Assn. v. Palomino,
78 A.D.3d 996 (2d Dept. 2010)
Greenwood Packing Corp. v. Associated Tel. Design, Inc.,
140 AD2d 303 (2d Dept 1988)
Hurrell-Harring v. State of New York,
112 A.D.3d 1213 (3rd Dep’t 2013) 16
Inter Connection El., Inc. v. Helix Partners LLC,
2014 N.Y. Misc. LEXIS 2975 (N.Y. Sup. Ct. 2014)
Isufi v. Prometal Constr., Inc.,
2017 N.Y. Misc. LEXIS 1190 (N.Y. Sup. Ct. N.Y. Cty. 2017) aff'd 161 A.D.3d 623 (1st Dept.
2018) 14
Ivory v. All Metro Health Care,
Index No. 160341/2017 (Sup. Ct. N.Y. Cty. 2022) 18
Jeffrey v. Collins,
2023 N.Y. App. Div. LEXIS 3715 (2d Dept July 5, 2023)
Kodirov v Community Home Care Referral Serv., Inc.
35 Misc 3d 1221[A], 2012 NY Slip Op 50808[U] (Sup Ct, Kings County 2012) 3,15
Kondratyeva v. VIP Health Services, Inc.,
2021 NY Slip Op 32357[U] (Sup. Ct. N.Y. Cty., 2021) 18
Vv
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Konstantynovska v. Caring Professionals, Inc.,
215 A.D.3d 405 (1st Dept. 2023) 17
Kucker v. Kaminsky & Rich,
7 A.D.3d 491 (2d Dep’t 2004) 18
Kudinov v. Kel-Tech Constr. Inc.,
65 A.D.3d 481 (Ist Dept. 2009) 17
Kurovskaya v. Project O.H.R. (Office for Homecare Referral), Inc.,
2020 NY Slip Op 33977[U] (Sup. Ct. NY Cty. 2020), aff'd 194 A.D.3d 612 (Ist Dept. 2021)...17
Lavrenyuk v. Life Care Services, Inc.,
2021 N.Y. Misc. LEXIS 6027 (Sup. Ct. N.Y. Cty. 2021), aff'd 198 A.D.3d 569 (1st Dept. 2021)
17
Leon v. Martinez,
84 .N.Y.2d 83 (1994) 2,9
Mascia v. Maresco,
39 A.D.3d 504 (2d Dep’t 2007) 18
Maor v. Hornblower N.Y., LLC,
N.Y. Misc. LEXIS 2111 (N.Y. Sup. Ct. N.Y. Cty. 2016) 14
Markasevic v. 241 E. 76 Tenants Corp.,
2017 N.Y. Misc. LEXIS 895 (N.Y. Sup. Ct., N.Y. County, Mar. 13, 2017) 13
Marshall v Roselli Moving & Stor. Corp.,
2012 N.Y. Misc. LEXIS 307 (N.Y. Sup. Ct. N.Y. Cty. 2012) 18
Mawere v. Landau,
130 AD2d 986 (2d Dept 2015)
Mazur Bros. Realty, LLC v. State of New York,
59 AD3d 401 (2d Dept 2009) 3,7
Medrano v. Mastro Concrete, Inc.,
2018 NY Slip Op 30740[U] (Sup Ct, NY County 2018) 18
Miglino v. Bally Total Fitn 's of Greater NY, Inc.,
20 N.Y.3d 342 (2013). 10
Mohamed v. Global Sec. Assoc., LLC,
2016 N.Y. Misc. LEXIS 1565 (N.Y. Sup. Ct. N.Y. Cty. 2016) 15
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Morales v NAP Constr. Co., Inc.,
2010 N.Y. Misc. LEXIS 3810 (N.Y. Sup. Ct. N.Y. Cty. 2010) 18
McCaskey, Davies and Assocs., Inc. v New York City Health & Hosps. Corp.
463 N.Y.S.2d 434 (1983)... 19
McGivney v. Union Turnpike Rest. LLC,
2012 NY Slip Op 31097[U] (Sup Ct, Nassau County 2012)
Nawrocki v. Proto Constr. & Dev. Corp.,
82 AD3d 534 (Ist Dept 2011) 14,17
Pajaczek v. Cema Constr. Corp.,
18 Misc. 3d 1140(A) (N.Y. Sup. Ct. N.Y. Cty. 2008) 17-18
Pesantez v. Boyle Environmental Services, Inc.,
251 A.D.2d 11 (Ist Dept. 1998) 17
Pirozzi v. Garvin,
185 A.D.3d 848 (2d Dept. 2020)
Popescu v. Forexware, LLC,
158 A.D.3d 543 (1st Dept. 2018)
Pludeman v. Northern Leasing Sys., Inc.,
40 A.D.3d 366 (Ist Dept. 2007)
Rizvi v. N. Shore Hematology-Oncology Assoc., P.C.,
2020 NY Slip Op 51281[U] (NY Sup Ct 2020)
Rosario v. Hallen Constr. Co., Inc.,
214 A.D.3d 544 (Ist Dept 2023) 5, 10
Rovello v. Orofino Realty Co.,
40 N.Y.2d 633 (1976) 9, 10
Simmons v. Edelstein,
32 A.D.3d 464 (2d Dep’t 2006)
Sokoloff v. Harriman Estates Dev. Corp.,
96 N.Y.2d 409 (2001)
Stecko v. Three Generations Contr. Inc.,
2013 N.Y. Misc. LEXIS 3035 (N.Y. Sup. Ct. N.Y. Cty. 2013) aff'd 2014 NY Slip Op. 07103 (Ist
Dept. 2014) 17
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Stone Mtn. Holdings, LLC v. Spitzer,
119 A.D.3d 548 (2d Dept. 2014) 15
Turgunbaev v. Home Family Care, Inc.,
2021 N.Y. Misc. LEXIS 5549 (Sup. Ct. Kings Cty. 2021). 18
Troshin v. Stella Orton Home Care Agency, Inc.,
2021 NY Slip Op 50196[U] (Sup. Ct. N.Y. Cty. 2021) 18
Tyree Bros. Environmental Svcs., Inc. v. Ferguson Propeller, Inc.,
247 A.D.2d 376 (2d Dep’t 1998) 19
Unique Goals Int’l, Ltd. v. Finskiy,
2018 NY Slip Op 32788(U) (Sup. Ct. 2018) 19
Vashovsky v. Zablocki,
2023 N.Y. Misc. LEXIS 178 (Sup. Ct. Kings Cnty. January 12, 2023) 16
VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC,
171 AD3d 189 [Ist Dept 2019]
Wedgewood Care Ctr. v. Kravitz,
198 A.D.3d 124 (2d Dept. 2021)
West Hempstead Water Dist. v. Buckeye Pipeline Co., L.P..
152 AD3d 558 (2d Dept 2017) 16
Williams v. Air Serve Corp.,
2013 N.Y. Misc. LEXIS 2243 (N.Y. Sup. Ct. N.Y. Cty. 2013) aff'd 121 A.D.3d 441 (Ist Dept.
2014) 14, 17
Yan Ping Xu v. Van Zwienen,
212 A.D.3d 872 (2d Dept 2023)
Zuparov v. Best Care,
2021 NY Slip Op 30245[U] (Sup. Ct. Kings Cty., 2021) 18
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STATUTES
12 NYCRR §§ 142-2.) ooececeececeeeeseeeeseseeseseeeeseseseeseseseasseessseseeassesssessesessessassesesseseeassesseaeseeeesesees 1
12 NYCRR §§ 142-2.2 ooeciececcccsscsessesesseseseeeseeeeseseseeseseseessseeseseseessseessesseeasseseassesesseseeasseseeaeseeeeaesees 1
12 NYCRR §§ 142-2.4 ooecccecccccseeseseeeeseseeseseseseseseeseseeessseessseseesssesesessesassesssassesesseseeacseseeaeseeeeaesnes 1
22 NYCRR 130-11 ceeceeececeeeeeseeseseseeseseeseseseeseseesesssesseacseesssesseacsessssesesacsesesscseeesseseeseseeneeeseeeereee 1, 20
22 NYCRR 130-1.1(a) 15
Article 9 §§ 901 1,8
CPLR. § 901(a)
CPLR § 3013... 9,13
CPLR 3025 (b) 19
CPLR § 3211
CPLR §§ 3211 (a)(1) passim
CPLR §§ 3211(a)(7) 1,9, 10, 19
Labor Law § 190 [1].. 11
Labor Law § 193 [1] 11
NYCRR 130-11 ceoeeeececeeceeceeseeeeseseeseseseeseseeeeeseesseeseessesassessassessssesesassesesscseeassesesseseeasseseesesreeeseseeee 16
NYCRR 130-1.1(a) 15
NYCRR 130-1.1(c) 16
N.Y. Lab. Law § 198(3) 14
New York Labor Law (“NYLL”) 1, 14
N.Y.L.L. § 195 12
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PRELIMINARY STATEMENT
Named Plaintiff Gustavo Matute (“Named Plaintiff’) on behalf of himself and a similarly
situated putative class of individuals (collectively “Plaintiffs”), and by their attorneys, Virginia &
Ambinder, LLP, respectfully submit this memorandum of law opposing Defendants’ motion to
dismiss Plaintiffs’ First Amended Class Action Complaint (“FAC”) pursuant to CPLR §§
3211(a)(1) and (7), and for sanctions against Plaintiff and Plaintiffs’ counsel pursuant to 22
NYCRR 130-1.1.
BACKGROUND
Plaintiffs commenced this action on or about October 23, 2020, alleging claims arising
under the New York Labor Law (“NYLL”) Article 9 §§ 901, et seq.; and 12 New York Codes,
Rules, and Regulations (“NYCRR”) §§ 142-2.1, 142-2.2, 142-2.4 to recover unpaid minimum
wages and overtime compensation, as well as damages arising out of Defendants failure to
provide proper wage statements owed to Plaintiffs. [Affirmation of Leonor H. Coyle, Esq.
(“Coyle Affirm.”), Ex. A, Summons and Complaint (NYSCEF Doc. No. 1).]
Plaintiffs served Defendant Elite Concrete NY LLC with the Summons and Complaint on
or about November 2, 2020. [NYSCEF Doc. No. 5, Affidavit of Service on Elite Concrete NY
LLC]
On April 28, 2021, the parties jointly filed a stipulation consenting to a change in venue.
[NYSCEF Docs. Nos. 16, 19, Stipulation To Be Ordered.]
On or about May 5, 2021, Defendants Elite Concrete NY LLC and Zalman Brook filed
an Answer to Plaintiffs’ Complaint. [NYSCEF Doc. No. 18, Elite Concrete’s and Zalman
Brook’s Answer.]
-l-
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On October 21, 2021, the Court entered a Preliminary Conference Order detailing the
discovery schedule to be followed. [NYSCEF Doc. No. 29, Court’s Preliminary Conference
Order.]
On April 7, 2022, Plaintiffs moved to amend the Complaint to substitute the Named
Plaintiff to add Gustavo Matute as a Named Plaintiff. [NYSCEF Docs. Nos. 35-42; Coyle
Affirm., Exhibit B, First Amended Complaint.] On February 9, 2023, the Court granted
Plaintiffs’ motion, and ordered Defendants to file an answer on or before March 17, 2023. On
March 17, 2023, Defendants filed this instant motion. Plaintiffs now oppose.
ARGUMENT
I. DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(1)
SHOULD BE DENIED
A. CPLR § 3211(a)(1) Legal Standard
On a motion to dismiss pursuant to CPLR § 3211, “Courts must accept the facts as
alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit within any cognizable legal
theory.” (ABN Amro Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 227 (201 1)(internal quotations and
citations omitted); see also Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414
(2001)(same); see also Leon v. Martinez, 84 N.Y.2d 83, 88 (1994)(same)).
Pursuant to CPLR § 3211(a)(1), the Court may only dismiss the complaint “where the
documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing
a defense as a matter of law.” (Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184
A.D.3d 803, 804 (2d Dept 2020) (emphasis added)(internal quotations and citations omitted); see
also Mawere v. Landau, 130 AD2d 986, 987 (2d Dept 2015); see also Goshen v. Mutual Life Ins.
Co. of N.Y., 98 NY2d 314, 326 (2002)). The only way to prevail on a defense founded on
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documentary evidence, is if the documents relied on resolve all factual issues and definitively
dispose of plaintiffs’ claims. 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144,
152 (2002); see also Greenwood Packing Corp. v. Associated Tel. Design, Inc., 140 AD2d 303
(2d Dept 1988)). “A party seeking dismissal on the ground that its defense is founded upon
documentary evidence pursuant to CPLR 3211(a)(1) has the burden of submitting documentary
evidence that resolves all factual issues as a matter of law, and conclusively disposes of the
plaintiff's claim.” (Citibank N.A. v. Burns, 187 A.D.3d 839, 841 (2d Dept 2020) (quoting Mazur
Bros. Realty, LLC v. State of New York, 59 AD3d 401, 402 (2d Dept 2009)).
While CPLR 3211(a)(1) does not define “documentary evidence,” “[a] paper will qualify
as documentary evidence only if it satisfies the following criteria: (1) it is ‘unambiguous’; (2) it
is of ‘undisputed authenticity’; and (3) its content are ‘essentially undeniable.’” (VXI Lux Holdco
S.A.R.L. v. SIC Holdings, LLC, 171 AD3d 189, 193 [lst Dept 2019][quoting Fontanetta v. John
Doe 1, 73 AD3d 78, 86-87 (2d Dept 2010)(internal citations omitted)). “[L]etters, summaries,
opinions, and/or conclusions of [] defendants....do not reflect an out-of-court transaction and are
not ‘essentially undeniable’. Thus, they are not ‘documentary evidence’ within the intendment of
CPLR 3211(a)(1).” (Fontanetta, 73 AD3d 78, (2d Dept 2010)(internal citations omitted)).
“Neither affidavits, deposition testimony, nor letters are considered ‘documentary evidence’
within the intendment of CPLR 3211 (a) (1).” Granada Condominium III Assn. v. Palomino, 78
A.D.3d 996, 997 (2d Dept. 2010)).
B. Defendants Have Failed to Submit Documentary Evidence Definitively Disposing
of Plaintiffs’ Claims
In their First Amended Complaint, Plaintiffs sufficiently allege that Defendants failed to
pay them for all hours worked, including minimum wage and overtime, and failed to provide
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proper wage notices! and statements showing the hours worked each week. [Coyle Affirm., Ex.
B, FAC at 4 23-24.] Specifically, Plaintiffs alleged that they normally worked at least 45 to 55
hours each week, were not compensated for all the actual overtime hours worked each week at
the correct rate of one and one-half
the regular hourly rate, and that their paystubs did not reflect
the actual number of hours worked each week, but rather showed a lesser number of hours
worked. [Ex. B, §{] 29-31]. Indeed, Plaintiffs state that “Defendants failed to accurately
document and record the actual number of weekly hours the Named Plaintiff and the putative
class worked and the wages they were paid.” [Ex. B, § 32].
Defendants’ documentary evidence fails to refute the allegations in the FAC. First,
Defendants improperly rely on the self-serving affidavit of its principal, Defendant Zalman
Brook. It is black letter law that affidavits are not documentary evidence and are not appropriate
proof on a CPLR 3211(a)(1) motion to dismiss. “[N]either the affidavits submitted in support of
the defendant's motion nor the purported contract between the defendant and another purchaser
constituted documentary evidence within the intendment of CPLR 3211(a)(1).” Jeffrey v.
Collins, 2023 N.Y. App. Div. LEXIS 3715, *4 (2d Dept July 5, 2023) (collecting cases); Yan
Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874 (2d Dept 2023); Davis v. Henry, 212 A.D.3d 597,
597-98 (2d Dept 2023). Here, Mr. Zalman makes numerous substantive assertions that are not
supported by documentary evidence relating to matters, such as, Plaintiff's employment status
with Defendant Elite, the length of Plaintiff's employment, the number of hours Plaintiff worked,
and whether Plaintiff ever disputed his wages. See generally Affirmation of Zalman Brook.
Second, the payroll records submitted by Defendants consist of Employee Detail
Earnings report (Ex. C), Paystubs (Ex. D), and a W-2 (Ex. E). According to Defendants, this
' Notably, Defendants did not attach a NYLL § 195 pay rate Notice and Acknowledgments as documentary
evidence to disprove Plaintiffs wage notice claim.
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documentary evidence demonstrates that Plaintiff Matute was correctly paid. [Def. Memo of
Law, p. 6; see generally Brooks Aff.; Brooks Aff. Ex. C-E.] These payroll records, however,
cannot refute Plaintiffs’ allegations because Plaintiffs specifically allege that Defendants failed
to correctly record the hours Plaintiffs worked and, thus, Plaintiffs’ paystubs do not accurately
reflect the hours worked each week. [Coyle Affirm., Ex. B, FAC at {J 30, 32]. Accordingly, the
accuracy of the information contained in the payroll records is a disputed material issue of fact
that goes to the heart of Plaintiffs’ claims, and cannot serve as irrefutable proof that Plaintiff was
correctly paid.
It is premature to determine whether the employee detail earnings, paystubs, and W-2
reflect all hours worked. Based on Defendants’ documentary evidence, Plaintiff Matute worked
from 16.53 hours per week to 44 hours per week. [Brooks Aff. Ex. C-D.] Plaintiff Matute,
however, explicitly alleges that he “normally worked at least 45 to 55 hours each week.” [Ex. B,
4] 27]. Accepting the facts in Plaintiffs’ Complaint as true, as is required on a CPLR 3211 motion
to dismiss, the only inference that can be drawn is that the documents do not properly record the
hours Plaintiff Matute worked for Defendants. See McGivney v. Union Turnpike Rest. LLC, 2012
NY Slip Op 31097[U], *6-7 (Sup Ct, Nassau County 2012) (finding payroll records do not
resolve all issues on a motion to dismiss pursuant to CPLR 3211(a)(1) where plaintiffs
allegations stem from claims that the hours they were paid did not accurately reflect the hours
they worked); Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544, 545 (1* Dept 2023) (“The
documentary evidence fails to utterly refute plaintiffs’ claim that they were not timely paid
overtime compensation. Despite defendant’s assertions, it is unclear whether the daily reports
submitted with its motion properly reflect the alleged work performed before plaintiffs’ shifts
began or after their shifts had purportedly ended.”).
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Furthermore, Defendants’ documentary evidence only shows Plaintiff working in June
2020. [Brooks Aff., Ex, C-E]. Plaintiff Matute alleges he worked for the Defendants from
approximately June 2020 through February 2021. [Coyle Affirm. Ex. B, § 25.] The absence of
records does not irrefutably support Defendants’ argument, but rather demonstrates a disputed
material issue of fact over the term of Plaintiffs employment.
Notably, how Elite came to possess Blue Stone’s payroll records is highly suspect.
Indeed, Mr. Brooks makes clear that “Matute did not work for Elite. Rather, he worked for Blue
Stone. .” Brooks Aff., § 4. Nevertheless, Mr. Brooks and Elite are in possession of Blue
Stone’s payroll records. In fact, Defendant Elite admits that Blue Stone’s payroll records
provided in support of dismissal are “kept and maintained and/or readily obtainable by Elite in
the ordinary course of its business and it is part of the ordinary course of Elite’s business to keep
and maintain those records.” Jd. at § 2. Indeed, Mr. Brooks does not attest that Blue Stone
granted Elite access to its payroll records. Rather, Mr. Brooks explains that Defendants obtained
access through the payroll vendor CHS. Jd, at ¥ 4 (the payroll records “were delivered by and/or
are accessible to Elite through the payroll company used by both Blue Stone and Elite at the
time, CHS Payroll (“CHS”).”). Meaning, Elite has access to, and maintains in the ordinary
course of its business, confidential employee records (e.g., W-2) from a purportedly distinct
corporation.” Defendants fail to adequately explain how it had the authority to even possess these
payroll records.
Conspicuously absent from Defendants’ evidentiary display are time records. Indeed,
Defendants are willing to argue that Plaintiff was correctly paid for all hours worked, seek
dismissal of Plaintiff's cause of action by submitting documentary evidence, and even request
? Even if Elite claims that it was given joint access to some payroll records that reflect the wages paid for work
performed by Blue Stone as Elite’s purported subcontractor, this does not explain why Elite would be granted access
to year end W-2 forms.
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sanctions against Plaintiff and counsel, but completely omit time records. Any claim by
Defendants that they do not have access to Blue Stone’s time records cannot be accepted on a
motion to dismiss where they appear to have access to Blue Stone’s confidential employee tax
records.
Even if Brook’s affirmation is considered on this motion — which it may not be — nothing
stated definitively disposes of Plaintiff Matute’s claim. It merely shows a dispute between
Brook’s statements and the Amended Complaint. However, since the Amended Complaint is to
be accepted as true, Brook’s affirmation proves nothing.
C. Plaintiff Matute Would Be a Suitable Class Representative
Defendants further argue that Plaintiff Matute would not be an adequate class
representative. [Def. Memo of Law., p. 7] Defendants assert that Matute cannot represent the
class because he “is nothing more than a name that has been put in place of Zuniga” and “does
not even have an individual claim”. [/d.] Defendants’ assertions are baseless Matute maintains
that he was not correctly compensated while in Defendants’ employ. Plaintiff Matute has
adequately pled this in his complaint, and Defendants’ documentary evidence does not “resolve[]
all factual issues as a matter of law, and conclusively dispose[] of the plaintiff's claim.” (Citibank
N.A. v. Burns, 187 A.D.3d 839, 841 (2d Dept 2020) (quoting Mazur Bros. Realty, LLC v. State of
New York, 59 AD3d 401, 402 (2d Dept 2009)). Plaintiff Matute and the putative class assert the
same claims, alleging that they have suffered the same injuries and are therefore similarly
situated. [Coyle Affirm. Ex. B, §] 21-39.] Therefore, Plaintiff Matute is a suitable individual to
represent the class. Indeed, countless wage and hour class actions alleging similar claims have
been certified. [insert string cite].
D. Defendants’ Arguments Regarding Class Claims Are Premature at This Stage
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Finally, it is premature to address the sufficiency of class claims on a motion to dismiss
prior to conducting pre-class certification discovery. [Def. Memo of Law, p. 7, 8.] Pludeman v.
Northern Leasing Sys., Inc., 40 A.D.3d 366, 369 (1st Dept. 2007); Bernstein v. Kelso & Co., 231
A.D.2d 314, 324 (1st Dept. 1997). In fact, “[a]lthough plaintiff, as a members of a class, may sue
as a representative party on behalf of all class members only if plaintiff meets the prerequisites
specified in C.P.L.R. § 901(a), nothing in Article 9 requires these prerequisites to be pleaded.”
Inter Connection El., Inc. v. Helix Partners LLC, 2014 N.Y. Misc. LEXIS 2975, *9 (N.Y. Sup.
Ct. 2014).
Nevertheless, Plaintiff alleged facts sufficient to put Defendants on notice that this action
was brought as a class action. Indeed, throughout the Amended Complaint, including in the
caption, Plaintiff states that he brought this case “individually and on behalf of all other persons
similarly situated... .” Exhibit A. Plaintiff alleges that this action is brought under the class
action statute, “NYLL Article 9 §§ 901.” Amended Complaint § 1. Plaintiff has an entire section
of his Amended Complaint titled “CLASS ALLEGATIONS.” /d. (emphasis in original).
Among other allegations asserted within this section, Plaintiff states the putative class definition
(413), claims there are more than 40 members in the class (414), identifies the alleged common
issues of law and fact (415) that are typical to Plaintiff ({ 16). Even if these allegations were
required to be pled, which they are not, Defendants cannot plausibly claim that they are not on
notice that Plaintiff is bringing this action on behalf of a class of similarly situated construction
workers.
Therefore, the motion to dismiss pursuant to CPLR 3211(a)(1) must be denied.
Il. DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(7)
SHOULD BE DENIED
A. CPLR § 3211(a)(7) Legal Standard
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Despite Defendants’ attempt to paint CPLR § 3013’s requirements otherwise,
The basic requirement... is that the pleadings identify the
transaction and indicate the theory of recovery with sufficient
precision to enable the court to control the case and the opponent
to prepare. So, generally speaking, Pleadings should not be
dismissed or ordered amended unless the allegations therein are
not sufficiently particular to apprise the court and parties of the
subject matter of the controversy.
Foley v. D'Agostino, 21 A.D.2d 60, 63 (1st Dept. 1964) (internal citations omitted).
“On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of
action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the
benefit of every possible favorable inference, and determine only whether the facts as alleged fit
within any cognizable legal theory.” Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d
828, 829 (2d Dept. 2018). Furthermore, “[i]n assessing a motion under CPLR 3211(a)(7), ... the
criterion is whether the proponent of the pleading has a cause of action, not whether he has stated
one.” Simmons v. Edelstein, 32 A.D.3d 464, 465 (2d Dep’t 2006); quoting Leon v. Martinez, 84
N.Y.2d 83, 88 (1994) (internal quotation and citation omitted); see also Rovello v. Orofino Realty
Co., 40 N.Y.2d 633 (1976).
New York State courts apply a “relaxed notice pleading standard” pursuant to CPLR
3013. See Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U], *4
(NY Sup Ct 2020). Accordingly, a complaint need only “put the defendant on notice of the
“occurrences . intended to be proved’ (CPLR 3013).” Wedgewood Care Ctr. v. Kravitz, 198
A.D.3d 124, 134 (2d Dept. 2021) (citing Popescu v. Forexware, LLC, 158 A.D.3d 543, 543 (1st
Dept. 2018)); Pirozzi v. Garvin, 185 A.D.3d 848, 852 (2d Dept. 2020) (pleading sufficient when
gives “notice of the occurrence.”).
9
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On a CPLR 3211(a)(7) motion, courts are “limit[ed] . . . to an examination of the
pleadings to determine whether they state a cause of action.” Miglino v. Bally Total Fitness of
Greater NY, Inc., 20 N.Y.3d 342, 351 (2013). The sole criterion is whether the pleading states a
cause of action, not whether there is any evidentiary support of the complaint. Bernstein v. Kelso
& Company, Inc., 231 A.D.2d 314, 659 (1st Dept. 1997). Accordingly, a “plaintiff may not be
penalized for failure to make an evidentiary showing in support of a complaint that states a claim
on its face.” Miglino, 20 N.Y.3d at 351 (citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633,
635 (1976)). “Whether a plaintiff can ultimately establish its allegations is not part of the
calculus in determining a motion to dismiss.” EBC I, Inc. v. Goldman Dachs & Co., 5 N.Y.3d 11,
19 (2005).
B. Plaintiffs’ Complaint Is Sufficient to Put Defendants on Notice of Their
Preview
INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF 08/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS GUSTAVO MATUTE, individually and on behalf of all other persons similarly situated who were employed by BLUE STONE Index No.: 518645/2021 CONCRETE CORP., ELITE CONCRETE NY LLC and FREDDY CORDERO and ZALMAN BROOK, Plaintiffs, - against - BLUE STONE CONCRETE CORP., ELITE CONCRETE NY LLC and any other entities affiliated with, controlling, or controlled by BLUE STONE CONCRETE CORP., ELITE CONCRETE NY LLC and FREDDY CORDERO and ZALMAN BROOK individually, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND FOR SANCTIONS VIRGINIA & AMBINDER, LLP Leonor H. Coyle, Esq. Jenny S. Brejt, Esq. 40 Broad Street, 7th Floor New York, New York 10004 Attorneys for Plaintiff and the Putative Class 1 of 30 FILED: KINGS COUNTY CLERK 08/11/2023 04:56 PM INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES Iv PRELIMINARY STATEMENT BACKGROUND ARGUMENT I DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(1) SHOULD BE DENIED. A CPLR § 3211(a)(1) Legal Standard B Defendants Have Failed to Submit Documentary Evidence Definitively Disposing of Plaintiffs’ Claims Plaintiff Matute Would Be a Suitable Class Representative Defendants’ Arguments Regarding Class Claims Are Premature at This Stage IL DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(7) SHOULD BE DENIED A CPLR § 3211(a)(7) Legal Standard B Plaintiffs’ Complaint Is Sufficient to Put Defendants on Notice of Their Claims 10 Plaintiffs’ FAC Contains Sufficient Detail Regarding Their Claims 12 It Is Reasonable That Plaintiffs Changed the Hours Worked When the Complaint Was Amended 13 E Plaintiffs’ Complaint Properly Includes Elite Concrete and Zalman Brook ...13 Til. DEFENDANTS’ MOTION TO SANCTION THE NAMED PLAINTIFF AND PLAINTIFFS’ COUNSEL SHOULD BE DENIED 15 A. 22 NYCRR 130-1.1 Legal Standard... 15 B. This Action is Not Frivolous and is Being Pursued in Good Faith 16 ii 2 of 30 FILED: KINGS COUNTY CLERK 08/11/2023 04:56 PM INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 IV. Alternatively, Plaintiffs Request Leave to Amend the Complaint ceeseeseseeseceeseeseeeeseeeeeeeees 19 CONCLUSION seescesceseesecscesscssessceseeesssesaeessceacsecsecsscsecessaceseesscsesseessesssecseseassaeesscsesseeseeesseeeeeeeseeaeens 19 iii 3 of 30 = INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 TABLE OF AUTHORITIES CASES PAGE 511 W. 232nd Owners Corp. v. Jennifer Realty Co. 98 NY2d 144 (2002) ABN Amro Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208 (2011) Ackerman v. New York Hosp. Med. Ctr. of Queens, 127 A.D.3d 794 (2d Dep’t 2015) 12 Anderson v. Mt. Clemens Potte: Co., 328 U.S. 680 (1946) 12, 13 Bayne v. Napw, Inc., 2021 US Dist LEXIS 151438 (E.D.N.Y. 2021) 18 Bernarez v. Alternate Staffing, Inc. 2020 NY Slip Op 33067[U] (Sup. Ct. N.Y. Cty. 2020) 18 Bernstein v. Kelso & Co., 231 A.D.2d 314 (Ist Dept. 1997) 10 Brown v. Mahdessian, 2021 N.Y. Misc. LEXIS 4562 (Sup Ct, NY County 2021) aff'd 206 A.D.3d 511 (1st Dept. 2022) 17 Cardona v. Maramont Corp., 993 N.Y.S.2d 643 (Sup. Ct.) ..c.ceccececeseseeseseeseseseesesessessseessseseeasseesssesseassesssseseeasseseaeseeesseeneaeeee 12, 18 Citibank N.A. v. Burns, 187 A.D.3d 839 (2d Dept 2020) 3,7 Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d 803 (2d Dept 2020) Dabrowski v. Abax, Inc., 84 A.D.3d 633 (Ist Dept. 2011) 17 Davis v. Henry, 212 A.D.3d 597 (2d Dept 2023) EBC I, Inc. v. Goldman Dachs & Co., 5.N.Y.3d 11 (2005) iv 4 of 30 = INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Foley v. ’Agostino, 21 A.D.2d 60 (Ist Dept. 1964) Fontanetta v. John Doe 1 73 AD3d 78 (2d Dept 2010) Galdamez v. Biordi Constr. Corp., 2006 N.Y. Misc. LEXIS 2952 (Sup. Ct. N.Y. Cty., 2006) aff'd 50 A.D.3d 357 (1st Dept. 2008) 17 Garcia v. Polsky, Shouldice & Rosen, P.C. 161 A.D.3d 828 (2d Dept. 2018) Goshen v. Mutual Life Ins. Co. of N.Y. 98 NY2d 314 (2002) Guzmanv. VLM, Inc., 2008 U.S. Dist. LEXIS 15821 (E.D.N.Y. 2008) 18 Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996 (2d Dept. 2010) Greenwood Packing Corp. v. Associated Tel. Design, Inc., 140 AD2d 303 (2d Dept 1988) Hurrell-Harring v. State of New York, 112 A.D.3d 1213 (3rd Dep’t 2013) 16 Inter Connection El., Inc. v. Helix Partners LLC, 2014 N.Y. Misc. LEXIS 2975 (N.Y. Sup. Ct. 2014) Isufi v. Prometal Constr., Inc., 2017 N.Y. Misc. LEXIS 1190 (N.Y. Sup. Ct. N.Y. Cty. 2017) aff'd 161 A.D.3d 623 (1st Dept. 2018) 14 Ivory v. All Metro Health Care, Index No. 160341/2017 (Sup. Ct. N.Y. Cty. 2022) 18 Jeffrey v. Collins, 2023 N.Y. App. Div. LEXIS 3715 (2d Dept July 5, 2023) Kodirov v Community Home Care Referral Serv., Inc. 35 Misc 3d 1221[A], 2012 NY Slip Op 50808[U] (Sup Ct, Kings County 2012) 3,15 Kondratyeva v. VIP Health Services, Inc., 2021 NY Slip Op 32357[U] (Sup. Ct. N.Y. Cty., 2021) 18 Vv 5 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Konstantynovska v. Caring Professionals, Inc., 215 A.D.3d 405 (1st Dept. 2023) 17 Kucker v. Kaminsky & Rich, 7 A.D.3d 491 (2d Dep’t 2004) 18 Kudinov v. Kel-Tech Constr. Inc., 65 A.D.3d 481 (Ist Dept. 2009) 17 Kurovskaya v. Project O.H.R. (Office for Homecare Referral), Inc., 2020 NY Slip Op 33977[U] (Sup. Ct. NY Cty. 2020), aff'd 194 A.D.3d 612 (Ist Dept. 2021)...17 Lavrenyuk v. Life Care Services, Inc., 2021 N.Y. Misc. LEXIS 6027 (Sup. Ct. N.Y. Cty. 2021), aff'd 198 A.D.3d 569 (1st Dept. 2021) 17 Leon v. Martinez, 84 .N.Y.2d 83 (1994) 2,9 Mascia v. Maresco, 39 A.D.3d 504 (2d Dep’t 2007) 18 Maor v. Hornblower N.Y., LLC, N.Y. Misc. LEXIS 2111 (N.Y. Sup. Ct. N.Y. Cty. 2016) 14 Markasevic v. 241 E. 76 Tenants Corp., 2017 N.Y. Misc. LEXIS 895 (N.Y. Sup. Ct., N.Y. County, Mar. 13, 2017) 13 Marshall v Roselli Moving & Stor. Corp., 2012 N.Y. Misc. LEXIS 307 (N.Y. Sup. Ct. N.Y. Cty. 2012) 18 Mawere v. Landau, 130 AD2d 986 (2d Dept 2015) Mazur Bros. Realty, LLC v. State of New York, 59 AD3d 401 (2d Dept 2009) 3,7 Medrano v. Mastro Concrete, Inc., 2018 NY Slip Op 30740[U] (Sup Ct, NY County 2018) 18 Miglino v. Bally Total Fitn 's of Greater NY, Inc., 20 N.Y.3d 342 (2013). 10 Mohamed v. Global Sec. Assoc., LLC, 2016 N.Y. Misc. LEXIS 1565 (N.Y. Sup. Ct. N.Y. Cty. 2016) 15 vi 6 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Morales v NAP Constr. Co., Inc., 2010 N.Y. Misc. LEXIS 3810 (N.Y. Sup. Ct. N.Y. Cty. 2010) 18 McCaskey, Davies and Assocs., Inc. v New York City Health & Hosps. Corp. 463 N.Y.S.2d 434 (1983)... 19 McGivney v. Union Turnpike Rest. LLC, 2012 NY Slip Op 31097[U] (Sup Ct, Nassau County 2012) Nawrocki v. Proto Constr. & Dev. Corp., 82 AD3d 534 (Ist Dept 2011) 14,17 Pajaczek v. Cema Constr. Corp., 18 Misc. 3d 1140(A) (N.Y. Sup. Ct. N.Y. Cty. 2008) 17-18 Pesantez v. Boyle Environmental Services, Inc., 251 A.D.2d 11 (Ist Dept. 1998) 17 Pirozzi v. Garvin, 185 A.D.3d 848 (2d Dept. 2020) Popescu v. Forexware, LLC, 158 A.D.3d 543 (1st Dept. 2018) Pludeman v. Northern Leasing Sys., Inc., 40 A.D.3d 366 (Ist Dept. 2007) Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U] (NY Sup Ct 2020) Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544 (Ist Dept 2023) 5, 10 Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976) 9, 10 Simmons v. Edelstein, 32 A.D.3d 464 (2d Dep’t 2006) Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409 (2001) Stecko v. Three Generations Contr. Inc., 2013 N.Y. Misc. LEXIS 3035 (N.Y. Sup. Ct. N.Y. Cty. 2013) aff'd 2014 NY Slip Op. 07103 (Ist Dept. 2014) 17 vii 7 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Stone Mtn. Holdings, LLC v. Spitzer, 119 A.D.3d 548 (2d Dept. 2014) 15 Turgunbaev v. Home Family Care, Inc., 2021 N.Y. Misc. LEXIS 5549 (Sup. Ct. Kings Cty. 2021). 18 Troshin v. Stella Orton Home Care Agency, Inc., 2021 NY Slip Op 50196[U] (Sup. Ct. N.Y. Cty. 2021) 18 Tyree Bros. Environmental Svcs., Inc. v. Ferguson Propeller, Inc., 247 A.D.2d 376 (2d Dep’t 1998) 19 Unique Goals Int’l, Ltd. v. Finskiy, 2018 NY Slip Op 32788(U) (Sup. Ct. 2018) 19 Vashovsky v. Zablocki, 2023 N.Y. Misc. LEXIS 178 (Sup. Ct. Kings Cnty. January 12, 2023) 16 VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 AD3d 189 [Ist Dept 2019] Wedgewood Care Ctr. v. Kravitz, 198 A.D.3d 124 (2d Dept. 2021) West Hempstead Water Dist. v. Buckeye Pipeline Co., L.P.. 152 AD3d 558 (2d Dept 2017) 16 Williams v. Air Serve Corp., 2013 N.Y. Misc. LEXIS 2243 (N.Y. Sup. Ct. N.Y. Cty. 2013) aff'd 121 A.D.3d 441 (Ist Dept. 2014) 14, 17 Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872 (2d Dept 2023) Zuparov v. Best Care, 2021 NY Slip Op 30245[U] (Sup. Ct. Kings Cty., 2021) 18 viii 8 of 30 INDEX NO. 518645/2021 FILED: KINGS COUNTY CLERK 08/11/2023 04:56 PM NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 STATUTES 12 NYCRR §§ 142-2.) ooececeececeeeeseeeeseseeseseeeeseseseeseseseasseessseseeassesssessesessessassesesseseeassesseaeseeeesesees 1 12 NYCRR §§ 142-2.2 ooeciececcccsscsessesesseseseeeseeeeseseseeseseseessseeseseseessseessesseeasseseassesesseseeasseseeaeseeeeaesees 1 12 NYCRR §§ 142-2.4 ooecccecccccseeseseeeeseseeseseseseseseeseseeessseessseseesssesesessesassesssassesesseseeacseseeaeseeeeaesnes 1 22 NYCRR 130-11 ceeceeececeeeeeseeseseseeseseeseseseeseseesesssesseacseesssesseacsessssesesacsesesscseeesseseeseseeneeeseeeereee 1, 20 22 NYCRR 130-1.1(a) 15 Article 9 §§ 901 1,8 CPLR. § 901(a) CPLR § 3013... 9,13 CPLR 3025 (b) 19 CPLR § 3211 CPLR §§ 3211 (a)(1) passim CPLR §§ 3211(a)(7) 1,9, 10, 19 Labor Law § 190 [1].. 11 Labor Law § 193 [1] 11 NYCRR 130-11 ceoeeeececeeceeceeseeeeseseeseseseeseseeeeeseesseeseessesassessassessssesesassesesscseeassesesseseeasseseesesreeeseseeee 16 NYCRR 130-1.1(a) 15 NYCRR 130-1.1(c) 16 N.Y. Lab. Law § 198(3) 14 New York Labor Law (“NYLL”) 1, 14 N.Y.L.L. § 195 12 ix 9 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 PRELIMINARY STATEMENT Named Plaintiff Gustavo Matute (“Named Plaintiff’) on behalf of himself and a similarly situated putative class of individuals (collectively “Plaintiffs”), and by their attorneys, Virginia & Ambinder, LLP, respectfully submit this memorandum of law opposing Defendants’ motion to dismiss Plaintiffs’ First Amended Class Action Complaint (“FAC”) pursuant to CPLR §§ 3211(a)(1) and (7), and for sanctions against Plaintiff and Plaintiffs’ counsel pursuant to 22 NYCRR 130-1.1. BACKGROUND Plaintiffs commenced this action on or about October 23, 2020, alleging claims arising under the New York Labor Law (“NYLL”) Article 9 §§ 901, et seq.; and 12 New York Codes, Rules, and Regulations (“NYCRR”) §§ 142-2.1, 142-2.2, 142-2.4 to recover unpaid minimum wages and overtime compensation, as well as damages arising out of Defendants failure to provide proper wage statements owed to Plaintiffs. [Affirmation of Leonor H. Coyle, Esq. (“Coyle Affirm.”), Ex. A, Summons and Complaint (NYSCEF Doc. No. 1).] Plaintiffs served Defendant Elite Concrete NY LLC with the Summons and Complaint on or about November 2, 2020. [NYSCEF Doc. No. 5, Affidavit of Service on Elite Concrete NY LLC] On April 28, 2021, the parties jointly filed a stipulation consenting to a change in venue. [NYSCEF Docs. Nos. 16, 19, Stipulation To Be Ordered.] On or about May 5, 2021, Defendants Elite Concrete NY LLC and Zalman Brook filed an Answer to Plaintiffs’ Complaint. [NYSCEF Doc. No. 18, Elite Concrete’s and Zalman Brook’s Answer.] -l- 10 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 On October 21, 2021, the Court entered a Preliminary Conference Order detailing the discovery schedule to be followed. [NYSCEF Doc. No. 29, Court’s Preliminary Conference Order.] On April 7, 2022, Plaintiffs moved to amend the Complaint to substitute the Named Plaintiff to add Gustavo Matute as a Named Plaintiff. [NYSCEF Docs. Nos. 35-42; Coyle Affirm., Exhibit B, First Amended Complaint.] On February 9, 2023, the Court granted Plaintiffs’ motion, and ordered Defendants to file an answer on or before March 17, 2023. On March 17, 2023, Defendants filed this instant motion. Plaintiffs now oppose. ARGUMENT I. DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(1) SHOULD BE DENIED A. CPLR § 3211(a)(1) Legal Standard On a motion to dismiss pursuant to CPLR § 3211, “Courts must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (ABN Amro Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 227 (201 1)(internal quotations and citations omitted); see also Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 (2001)(same); see also Leon v. Martinez, 84 N.Y.2d 83, 88 (1994)(same)). Pursuant to CPLR § 3211(a)(1), the Court may only dismiss the complaint “where the documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing a defense as a matter of law.” (Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d 803, 804 (2d Dept 2020) (emphasis added)(internal quotations and citations omitted); see also Mawere v. Landau, 130 AD2d 986, 987 (2d Dept 2015); see also Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 (2002)). The only way to prevail on a defense founded on 2 11 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 documentary evidence, is if the documents relied on resolve all factual issues and definitively dispose of plaintiffs’ claims. 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 (2002); see also Greenwood Packing Corp. v. Associated Tel. Design, Inc., 140 AD2d 303 (2d Dept 1988)). “A party seeking dismissal on the ground that its defense is founded upon documentary evidence pursuant to CPLR 3211(a)(1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim.” (Citibank N.A. v. Burns, 187 A.D.3d 839, 841 (2d Dept 2020) (quoting Mazur Bros. Realty, LLC v. State of New York, 59 AD3d 401, 402 (2d Dept 2009)). While CPLR 3211(a)(1) does not define “documentary evidence,” “[a] paper will qualify as documentary evidence only if it satisfies the following criteria: (1) it is ‘unambiguous’; (2) it is of ‘undisputed authenticity’; and (3) its content are ‘essentially undeniable.’” (VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 AD3d 189, 193 [lst Dept 2019][quoting Fontanetta v. John Doe 1, 73 AD3d 78, 86-87 (2d Dept 2010)(internal citations omitted)). “[L]etters, summaries, opinions, and/or conclusions of [] defendants....do not reflect an out-of-court transaction and are not ‘essentially undeniable’. Thus, they are not ‘documentary evidence’ within the intendment of CPLR 3211(a)(1).” (Fontanetta, 73 AD3d 78, (2d Dept 2010)(internal citations omitted)). “Neither affidavits, deposition testimony, nor letters are considered ‘documentary evidence’ within the intendment of CPLR 3211 (a) (1).” Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997 (2d Dept. 2010)). B. Defendants Have Failed to Submit Documentary Evidence Definitively Disposing of Plaintiffs’ Claims In their First Amended Complaint, Plaintiffs sufficiently allege that Defendants failed to pay them for all hours worked, including minimum wage and overtime, and failed to provide 3 12 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 proper wage notices! and statements showing the hours worked each week. [Coyle Affirm., Ex. B, FAC at 4 23-24.] Specifically, Plaintiffs alleged that they normally worked at least 45 to 55 hours each week, were not compensated for all the actual overtime hours worked each week at the correct rate of one and one-half the regular hourly rate, and that their paystubs did not reflect the actual number of hours worked each week, but rather showed a lesser number of hours worked. [Ex. B, §{] 29-31]. Indeed, Plaintiffs state that “Defendants failed to accurately document and record the actual number of weekly hours the Named Plaintiff and the putative class worked and the wages they were paid.” [Ex. B, § 32]. Defendants’ documentary evidence fails to refute the allegations in the FAC. First, Defendants improperly rely on the self-serving affidavit of its principal, Defendant Zalman Brook. It is black letter law that affidavits are not documentary evidence and are not appropriate proof on a CPLR 3211(a)(1) motion to dismiss. “[N]either the affidavits submitted in support of the defendant's motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1).” Jeffrey v. Collins, 2023 N.Y. App. Div. LEXIS 3715, *4 (2d Dept July 5, 2023) (collecting cases); Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874 (2d Dept 2023); Davis v. Henry, 212 A.D.3d 597, 597-98 (2d Dept 2023). Here, Mr. Zalman makes numerous substantive assertions that are not supported by documentary evidence relating to matters, such as, Plaintiff's employment status with Defendant Elite, the length of Plaintiff's employment, the number of hours Plaintiff worked, and whether Plaintiff ever disputed his wages. See generally Affirmation of Zalman Brook. Second, the payroll records submitted by Defendants consist of Employee Detail Earnings report (Ex. C), Paystubs (Ex. D), and a W-2 (Ex. E). According to Defendants, this ' Notably, Defendants did not attach a NYLL § 195 pay rate Notice and Acknowledgments as documentary evidence to disprove Plaintiffs wage notice claim. 4 13 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 documentary evidence demonstrates that Plaintiff Matute was correctly paid. [Def. Memo of Law, p. 6; see generally Brooks Aff.; Brooks Aff. Ex. C-E.] These payroll records, however, cannot refute Plaintiffs’ allegations because Plaintiffs specifically allege that Defendants failed to correctly record the hours Plaintiffs worked and, thus, Plaintiffs’ paystubs do not accurately reflect the hours worked each week. [Coyle Affirm., Ex. B, FAC at {J 30, 32]. Accordingly, the accuracy of the information contained in the payroll records is a disputed material issue of fact that goes to the heart of Plaintiffs’ claims, and cannot serve as irrefutable proof that Plaintiff was correctly paid. It is premature to determine whether the employee detail earnings, paystubs, and W-2 reflect all hours worked. Based on Defendants’ documentary evidence, Plaintiff Matute worked from 16.53 hours per week to 44 hours per week. [Brooks Aff. Ex. C-D.] Plaintiff Matute, however, explicitly alleges that he “normally worked at least 45 to 55 hours each week.” [Ex. B, 4] 27]. Accepting the facts in Plaintiffs’ Complaint as true, as is required on a CPLR 3211 motion to dismiss, the only inference that can be drawn is that the documents do not properly record the hours Plaintiff Matute worked for Defendants. See McGivney v. Union Turnpike Rest. LLC, 2012 NY Slip Op 31097[U], *6-7 (Sup Ct, Nassau County 2012) (finding payroll records do not resolve all issues on a motion to dismiss pursuant to CPLR 3211(a)(1) where plaintiffs allegations stem from claims that the hours they were paid did not accurately reflect the hours they worked); Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544, 545 (1* Dept 2023) (“The documentary evidence fails to utterly refute plaintiffs’ claim that they were not timely paid overtime compensation. Despite defendant’s assertions, it is unclear whether the daily reports submitted with its motion properly reflect the alleged work performed before plaintiffs’ shifts began or after their shifts had purportedly ended.”). 5 14 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Furthermore, Defendants’ documentary evidence only shows Plaintiff working in June 2020. [Brooks Aff., Ex, C-E]. Plaintiff Matute alleges he worked for the Defendants from approximately June 2020 through February 2021. [Coyle Affirm. Ex. B, § 25.] The absence of records does not irrefutably support Defendants’ argument, but rather demonstrates a disputed material issue of fact over the term of Plaintiffs employment. Notably, how Elite came to possess Blue Stone’s payroll records is highly suspect. Indeed, Mr. Brooks makes clear that “Matute did not work for Elite. Rather, he worked for Blue Stone. .” Brooks Aff., § 4. Nevertheless, Mr. Brooks and Elite are in possession of Blue Stone’s payroll records. In fact, Defendant Elite admits that Blue Stone’s payroll records provided in support of dismissal are “kept and maintained and/or readily obtainable by Elite in the ordinary course of its business and it is part of the ordinary course of Elite’s business to keep and maintain those records.” Jd. at § 2. Indeed, Mr. Brooks does not attest that Blue Stone granted Elite access to its payroll records. Rather, Mr. Brooks explains that Defendants obtained access through the payroll vendor CHS. Jd, at ¥ 4 (the payroll records “were delivered by and/or are accessible to Elite through the payroll company used by both Blue Stone and Elite at the time, CHS Payroll (“CHS”).”). Meaning, Elite has access to, and maintains in the ordinary course of its business, confidential employee records (e.g., W-2) from a purportedly distinct corporation.” Defendants fail to adequately explain how it had the authority to even possess these payroll records. Conspicuously absent from Defendants’ evidentiary display are time records. Indeed, Defendants are willing to argue that Plaintiff was correctly paid for all hours worked, seek dismissal of Plaintiff's cause of action by submitting documentary evidence, and even request ? Even if Elite claims that it was given joint access to some payroll records that reflect the wages paid for work performed by Blue Stone as Elite’s purported subcontractor, this does not explain why Elite would be granted access to year end W-2 forms. 6 15 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 sanctions against Plaintiff and counsel, but completely omit time records. Any claim by Defendants that they do not have access to Blue Stone’s time records cannot be accepted on a motion to dismiss where they appear to have access to Blue Stone’s confidential employee tax records. Even if Brook’s affirmation is considered on this motion — which it may not be — nothing stated definitively disposes of Plaintiff Matute’s claim. It merely shows a dispute between Brook’s statements and the Amended Complaint. However, since the Amended Complaint is to be accepted as true, Brook’s affirmation proves nothing. C. Plaintiff Matute Would Be a Suitable Class Representative Defendants further argue that Plaintiff Matute would not be an adequate class representative. [Def. Memo of Law., p. 7] Defendants assert that Matute cannot represent the class because he “is nothing more than a name that has been put in place of Zuniga” and “does not even have an individual claim”. [/d.] Defendants’ assertions are baseless Matute maintains that he was not correctly compensated while in Defendants’ employ. Plaintiff Matute has adequately pled this in his complaint, and Defendants’ documentary evidence does not “resolve[] all factual issues as a matter of law, and conclusively dispose[] of the plaintiff's claim.” (Citibank N.A. v. Burns, 187 A.D.3d 839, 841 (2d Dept 2020) (quoting Mazur Bros. Realty, LLC v. State of New York, 59 AD3d 401, 402 (2d Dept 2009)). Plaintiff Matute and the putative class assert the same claims, alleging that they have suffered the same injuries and are therefore similarly situated. [Coyle Affirm. Ex. B, §] 21-39.] Therefore, Plaintiff Matute is a suitable individual to represent the class. Indeed, countless wage and hour class actions alleging similar claims have been certified. [insert string cite]. D. Defendants’ Arguments Regarding Class Claims Are Premature at This Stage 7 16 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Finally, it is premature to address the sufficiency of class claims on a motion to dismiss prior to conducting pre-class certification discovery. [Def. Memo of Law, p. 7, 8.] Pludeman v. Northern Leasing Sys., Inc., 40 A.D.3d 366, 369 (1st Dept. 2007); Bernstein v. Kelso & Co., 231 A.D.2d 314, 324 (1st Dept. 1997). In fact, “[a]lthough plaintiff, as a members of a class, may sue as a representative party on behalf of all class members only if plaintiff meets the prerequisites specified in C.P.L.R. § 901(a), nothing in Article 9 requires these prerequisites to be pleaded.” Inter Connection El., Inc. v. Helix Partners LLC, 2014 N.Y. Misc. LEXIS 2975, *9 (N.Y. Sup. Ct. 2014). Nevertheless, Plaintiff alleged facts sufficient to put Defendants on notice that this action was brought as a class action. Indeed, throughout the Amended Complaint, including in the caption, Plaintiff states that he brought this case “individually and on behalf of all other persons similarly situated... .” Exhibit A. Plaintiff alleges that this action is brought under the class action statute, “NYLL Article 9 §§ 901.” Amended Complaint § 1. Plaintiff has an entire section of his Amended Complaint titled “CLASS ALLEGATIONS.” /d. (emphasis in original). Among other allegations asserted within this section, Plaintiff states the putative class definition (413), claims there are more than 40 members in the class (414), identifies the alleged common issues of law and fact (415) that are typical to Plaintiff ({ 16). Even if these allegations were required to be pled, which they are not, Defendants cannot plausibly claim that they are not on notice that Plaintiff is bringing this action on behalf of a class of similarly situated construction workers. Therefore, the motion to dismiss pursuant to CPLR 3211(a)(1) must be denied. Il. DEFENDANTS’ MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(7) SHOULD BE DENIED A. CPLR § 3211(a)(7) Legal Standard 8 17 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 Despite Defendants’ attempt to paint CPLR § 3013’s requirements otherwise, The basic requirement... is that the pleadings identify the transaction and indicate the theory of recovery with sufficient precision to enable the court to control the case and the opponent to prepare. So, generally speaking, Pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy. Foley v. D'Agostino, 21 A.D.2d 60, 63 (1st Dept. 1964) (internal citations omitted). “On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 829 (2d Dept. 2018). Furthermore, “[i]n assessing a motion under CPLR 3211(a)(7), ... the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” Simmons v. Edelstein, 32 A.D.3d 464, 465 (2d Dep’t 2006); quoting Leon v. Martinez, 84 N.Y.2d 83, 88 (1994) (internal quotation and citation omitted); see also Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976). New York State courts apply a “relaxed notice pleading standard” pursuant to CPLR 3013. See Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U], *4 (NY Sup Ct 2020). Accordingly, a complaint need only “put the defendant on notice of the “occurrences . intended to be proved’ (CPLR 3013).” Wedgewood Care Ctr. v. Kravitz, 198 A.D.3d 124, 134 (2d Dept. 2021) (citing Popescu v. Forexware, LLC, 158 A.D.3d 543, 543 (1st Dept. 2018)); Pirozzi v. Garvin, 185 A.D.3d 848, 852 (2d Dept. 2020) (pleading sufficient when gives “notice of the occurrence.”). 9 18 of 30 INDEX NO. 518645/2021 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 08/11/2023 On a CPLR 3211(a)(7) motion, courts are “limit[ed] . . . to an examination of the pleadings to determine whether they state a cause of action.” Miglino v. Bally Total Fitness of Greater NY, Inc., 20 N.Y.3d 342, 351 (2013). The sole criterion is whether the pleading states a cause of action, not whether there is any evidentiary support of the complaint. Bernstein v. Kelso & Company, Inc., 231 A.D.2d 314, 659 (1st Dept. 1997). Accordingly, a “plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face.” Miglino, 20 N.Y.3d at 351 (citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976)). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” EBC I, Inc. v. Goldman Dachs & Co., 5 N.Y.3d 11, 19 (2005). B. Plaintiffs’ Complaint Is Sufficient to Put Defendants on Notice of Their