Motion to Dismiss in John L. Hyman v. Leeding Builders Group Llc| Trellis.Law

On August 17, 2023 a Motion-Secondary was filed involving a dispute between John L. Hyman, and Leeding Builders Group Llc, for Torts - Other (NYLL wage violations) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JOHN L. HYMAN, Index No. 158194/2023

Plaintiff,

Vv.

LEEDING BUILDERS GROUP LLC,

Defendants.

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REPLY MEMORANDUM OF LAW IN SUPPORT
OF LEEDING BUILDERS GROUP, LLC’S
MOTION TO DISMISS THE VERIFIED COMPLAINT

Dated: November 8, 2023

Of Counsel:

Howard M. Wexler
Kyle D. Winnick

SEYFARTH SHAW LLP
620 Eighth Avenue
New York, New York 10018
(T) (212) 218-5500
(F) (212) 218-5526
Attorneys for Defendant
Leeding Builders Group LLC

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TABLE OF CONTENTS

Page
PRELIMINARY STATEMENT

ARGUMENT

I THERE IS NO EXPRESS PRIVATE RIGHT OF ACTION FOR WEEKLY PAY
CLAIMS

IL POST-VEGA LEGISLATIVE HISTORY AND KONKUR CLARIFY THAT
PAYING BI-WEEKLY DOES NOT TRIGGER NYLL § 198(1-A)

A Legislation enacted after Vega confirms that pay frequency violation re
NOt Wage ClAiMS........ eee eeeeeeeeeeeeeeeeeseeesescsesesesesesesesesesesesesseseeseeeaeees

B The Court of Appeal’s decision in Konkur abrogated Vega.

TIL THE NEW YORK DEPARTMENT OF LABOR HAS LONG HELD THAT
PAY FREQUENCY CLAIMS ARE “NON-WAGE” CLAIMS, NOT “WAGE”
CLAIMS

IV. THE COURT SHOULD DECLINE TO RECOGNIZE AN IMPLIED RIGHT OF
ACTION FOR PAY FREQUENCY VIOLATIONS UNDER NYLL § 191 11

PERMITTING LIQUIDATED DAMAGES WOULD BE
UNCONSTITUTIONAL 13

VI LEAVE TO AMEND SHOULD BE DENIED BECAUSE IT WOULD BE
FUTILE 15

CONCLUSION 15

CERTIFICATION 17

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TABLE OF AUTHORITIES

Page(s)

Cases

Barenboim v. Starbucks Corp.,
21 N.Y.3d 460 (2013)

Brooklyn Sav. Bank v. O'Neil,
324 U.S. 697 (1945) 14

Gottlieb v. Kenneth D. Laub & Co.,
82 N.Y.2d 457 (1993), overturned due to legislative action 2021 NY S.B.
858) 3, 8,9

Gutierrez v. Bactolac Pharm., Inc.,
210 A.D.3d 746 (2d Dep’t 2022)

Harris v. Old Navy, LLC,
2022 WL 16941712 (S.D.N.Y. Nov. 15, 2022) 14

Konkur v. Utica Acad. Of Science Charter Sch
38 N.Y.3d 38 (2022) passim

Mendoza v. Cornell Uni.,
215 A.D.3d 590 (1st Dep’t 2023) 3,9

People v. Vetri,
309 N.Y. 401 (1955) 13

Rogers v. City of Troy,
148 F.3d 52 (2d Cir. 1998), 15

Triad Int'l Corp. v. Cameron Indus., Inc.,
122 A.D.3d 531 (1st Dep’t 2014) 15

United States v. Davis,
139 S. Ct. 2319 (2019) 13

Villanueva v. 179 Third Ave. Rest Inc.,
500 F. Supp. 3d 219 (S.D.N.Y. 2020). 14

Statutes

Fair Labor Standards Act 14

Labor Law Article 6 passim

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No Wage Loophole Act

No Wage Theft Loophole Act.

NYLL§ 190(6)
NYLL§ 191 passim

NYLL§ 191(1)(a)
NYLL§ 191(1)(a)(i)... passim

NYLL§ 191(1)(a)(ii) 12

NYLL§ 191(1)(c)
NYLL § 191(c)
NYLL§ 193

NYLL § 195

NYLL§ 195(1)
NYLL§ 195(3)
NYLL§ 198 passim

NYLL§ 198(1-a) passim

NYLL § 198(1-b) .ossccessssssesssssssssssssssssstsesssesuenssouuenssinssnssenunsesenussassiuseaseiseasenseesennneesesee 2,7
NYLL§ 198(1-d)
NYLL
§ 218 ooo ee eseeeeseeeeseseeseseeeeseseeeesseesseeseessseessseseeasseeisssseeassesesssseeesseseeesseeneeesees 9, 10, 13

Weekly Pay Act 12, 13

Other Authorities

Black’s Law Dictionary (11th ed. 2019). 14

Committee Report, 2021 NY S.B. 858 (Jan. 7, 2021)

Report of the Attorney-General of the State of New York (Jan. 2, 1895) 12

United States Constitution

iii

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Defendant Leeding Builders Group LLC (“LBG”) respectfully submits this

Reply Memorandum of Law in further support of its Motion to Dismiss the

Complaint of John Hyman (“Plaintiff’) pursuant to CPLR 3211(a)(7).

PRELIMINARY STATEMENT

Plaintiff seeks liquidated damages under NYLL § 198(1-a) equal to one

hundred percent of all wages he allegedly received a week late. LBQ’s principal

brief established that such an extreme draconian result would conflict with the text,

purpose, and structure of Article 6 of the Labor Law, as well as the Due Process of

the United States Constitution. Violations of NYLL § 191(1)(a)(i) are not “wage

claims” enforceable under NYLL § 198(1-a). Rather, they are “non-wage claims”

subject to administrative enforcement for modest penalties, as the New York State

Department of Labor (“DOL”) has historically enforced the statute.

Plaintiff offers little in response. He merely parrots the Vega decision,

without meaningfully addressing the legislative and judicial developments following

Vega that establish privately enforceable rights under Article 6 are limited to those

for which the Legislature expressly created a private right of action. The

Legislature did not do so for violations of NYLL § 191(1)(a)(). Consequentially,

Plaintiff's complaint must be dismissed in its entirety.

ARGUMENT

I THERE Is NO EXPRESS PRIVATE RIGHT OF ACTION FOR WEEKLY Pay CLAIMS

A plain reading of the statutory text confirms there is no private right of

action for violations of NYLL § 191(1)(a). Plaintiff does not dispute that NYLL §

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191(1)(a) lacks any mention of authorizing a private right of action. Plaintiff also

does not dispute that NYLL § 198(1-a)—allowing liquidated damages for “wage

claims”—similarly does not expressly reference NYLL § 191 or frequency of pay

requirements. This silence is in sharp contrast to NYLL § 198 expressly

authorizing private enforcement for other Article 6 violations. For example, NYLL

§ 198(1-b) expressly provides a private right of action for an employer's failure to

provide a “wage notice” upon hire, as required by NYLL § 195(1). Likewise, NYLL §

198(1-d) expressly provides a private right of action for inaccurate wage statements

under NYLL § 195(8). There is absolutely no mention of NYLL § 191 (or pay

frequency in general) in NYLL § 198.

This alone is dispositive: “[w]here the Legislature intended for an article 6

provision to be enforced individually, it expressly provided a private right of action.”

Konkur v. Utica Acad. Of Science Charter Sch., 38 N.Y.3d 38, 44 (2022). NYLL §

191 is an article 6 provision, and the Legislature never expressly provided a private

right of action, despite the law being on the books since 1890. No more analysis is

needed.

Il. Post-VEGA LEGISLATIVE HISTORY AND KONKUR CLARIFY THAT PAYING BI-
WEEKLY DOES NoT TRIGGER NYLL § 198(1-A)

Plaintiff does not contend that NYLL § 191’s statutory text evinces an

express right of an action; rather, he contends that NYLL § 198(1-a) provides a

vehicle to enforce pay frequency violations. (See NYSCEF Doc. No. 27 at 9-10.) But

pay frequency claims are not “wage claims” under NYLL § 198(1-a), as post-Vega

developments have clarified.

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A. Legislation enacted after Vega confirms that pay frequency
violations are not wage claims

In 2021, after Vega was decided, the Legislature enacted the No Wage Theft

Loophole Act, and in doing so, clarified two critical points. First, the Committee

Report explained that “Article 6 of the Labor Law was created to prevent employers

from benefiting from the fruits of their employees’ labor by withholding wages. If

interpreted correctly, this broad-ranging statute allows prevailing plaintiffs to

recover unpaid wages, attorneys’ fees, and in many liquidated damages.” See

Winnick Reply Aff., Ex. S, Committee Report, 2021 NY S.B. 858 (Jan. 7, 2021). In

no world does paying an employee bi-weekly, according to that employee’s contract,

constitute “unpaid wages.” See Gutierrez v. Bactolac Pharm., Inc., 210 A.D.3d 746,

748 (2d Dep’t 2022) (NYLL § 191 “pertains to frequency of pay . . not unpaid

wages”).

Second, the No Wage Theft Loophole Act overturned the Court of Appeal’s

decision in Gottlieb v. Kenneth D. Laub & Co., 82 N.Y.2d 457, 459 (1993), overturned

due to legislative action 2021 NY S.B. 858)) (emphasis added), which held that

NYLL § 198 was not “substantive,” rather it was procedural. See Mendoza v.

Cornell Uni., 215 A.D.3d 590, 591 (1st Dep’t 2023) (recognizing that “an amendment

to § 198 abrogated Gottlieb”). Dispositive here, the legislative history explains that

“wage claims” are limited to non-payment of wages (not late payments):

Article 6 of the labor law, and sections 193 and 198(8) in particular,
reflects New York’s longstanding policy against the forfeiture of earned
but undistributed wages. The purpose of this remedial amendment is
to clarify that: (a) the unauthorized failure to pay wages, benefits
and wage supplements has always been encompassed by the
prohibitions of section 193, see, e.g., Ryan v. Kellogg Partners Inst.

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Serus., 19 N.Y. 3d 1, 16 (2012) (correctly holding that employer’s
neglect to pay sum that constitutes a ‘wage’ violated section 193); and
(b) consistent with established principles of statutory construction,
section 193 should be harmonized with section 198(3)’s guarantee that
‘All employees shall have the right to recover full wages, benefits and
m9
wage supplements and liquidated damages.

Ex. R}, L. 2021, c. 397, § 1 (emphasis added).

The Legislature therefore amended both NYLL §§ 193 and 198—but not

NYLL § 191—+to clarify that “[t]here is no exception to liability under this section for

the unauthorized failure to pay wages, benefits or wage supplements.” (See id.

at 1, 2.) Clearly, paying employees bi-weekly, per their employment contact, is not

“unauthorized failure to pay wages”—it is an authorized means of paying wages.

And the Legislature’s total omission of even mentioning NYLL § 191 in the No

Wage Theft Loophole Act, when the entire purpose of the Act was to clarify which

sections are privately enforceable, cements the conclusion that NYLL § 191 is

not privately enforceable; otherwise, the Legislature surely would have added

similar rights-affirming language to § 191, just as it did to §§ 193 and 198.

This interpretation of NYLL § 198 as only applying to unpaid wages, not late

paid wages, dovetails with the legislature history concerning the amendments to

NYLL § 198 in 2010, which is when the word “underpayment”—the key word the

Vega court relied upon—was first added to § 198. The term “underpayment” was

simply part of an amendment increasing the liquidated damages available for

unpaid claims from 25% to 100%. See Ex. P, L. 2010 ch. 564. The use of the word

1 Exhibits A through R are annexed to the Declaration of Kyle D. Winnick. All
other exhibits are annexed to the Reply Declaration of Kyle D. Winnick.

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did not purport to create a new private right of action for frequency violations.

There is not a single word in the legislative history to support that contention. It

simply defies logic to conclude that the Legislature would have inserted the word

“underpayment” for the purpose of creating a new cause of action in 2010 for a law

first enacted in 1890 without ever mentioning it in the 124 pages of legislative

history. (Ex. Q, Bill Jacket, L. 2010, ch. 564.)

Eschewing this legislative history, plaintiff erroneously contends that the

legislative history from 1966 and 1967 show an intent to create a private cause of

action for pay frequency claims. (See NYSCEF Doc. No. 27 at 9.) As explained in

LBG’s principal brief, the 1966 amendment recodified—rather than replaced—the

then-existing Labor Law. See Bill Jacket, Sponsor Mem., L. 1966, ch. 548, at 2-7. It

did not create a private right of action for violations of NYLL § 191, and there is no

mention in the 1966 Bill Jacket of doing so. The 1966 law also did not modify the

Model Wage Bill (originally passed in 1937), except to recodify it as NYLL § 198.

(Ex. H, L. 1966, ch. 548 § 1.) Thus, the existence of a private right of action for pay

frequency violations was no different in 1966 than it was in 1890 or 1937—there

was none.

Relatedly, the 1967 amendment amended NYLL § 198 to increase penalties

for existing wage claims; it did not create new rights for frequency of pay violations.

The amendment does not mention frequency of pay violations or reference NYLL §

191. It simply allows for increased damages for “wage claims,” as that term was

used in the 1937 Wage Bill—i.e., claims for unpaid wages or non-payment of wages.

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(See Ex. L.) Thus, the 1967 amendment only confirms and reinforces that a pay

frequency violation is not a wage claim, as the legislative materials define wage

claims as either “non-payment of wages” or paying less than agreed-to wages. See

NYSCEF Doc. No. 32, Bill Jacket, L. 1967, ch. 310, p. 3; see also id. at 5 (bill

provides for imposition of stronger sanctions against an employer “for his failure to

pay wages”); id. at 6 (amendment permits increased penalties for “unpaid wages”);

id. at 10 (amendment will allow recovery of attorneys’ fees and liquidated damages

in an action for “failure or refusal to pay” wages”); id. at 11 (describing amendment

as permitting fees and liquidated damages in “an action on a claim by an employee

for non-payment of wages”). There is no mention of the weekly payment law or that

a violation of it is a “wage claim.”

Plaintiff does not remotely address the overwhelming legislative history,

including the legislative history from the post-Vega amendments. Instead, Plaintiff

makes the strained argument that because in 1966 one memorandum referred to

the weekly payment law as part of the “wage payment provisions” of the Labor Law,

and in 1967 another memorandum used that term when referring broadly to the

amendment permitting liquidated damages, that must mean liquidated damages

are available for frequency violations. (See NYSCEF Doc. No. 27 at 9.)

But cherry-picking the phrase “wage payment provisions,” which is not even

used in NYLL § 198 (rather, the operative phrase is “wage claim”), provides scant

support for such an argument. The phrase is from two different memoranda

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addressing two different bills, from two different years, neither of which address or

discuss the creation of a private right of action.

Highlighting the fallacy in Plaintiffs argument is the 1966 amendment’s

addition of NYLL § 195 (pay notification) which, by Plaintiff's logic, would also have

constituted a “wage payment provision,” carrying a private right of action based on

the 1967 amendment to NYLL § 198. But the 1967 amendment did not create a

private right of action for a NYLL § 195 violation. We know this because the law

was amended in 2010 specifically to provide for a private right of action for

violations of NYLL § 195. See NYLL § 198(1-b). There would be no need to amend

the law to create a private right of action if one already existed.

Unlike with respect to NYLL § 195, NYLL § 198 has never been amended to

permit a private right of action for NYLL § 191. This is one more reason

establishing that there is no private right of action under § 198 to enforce § 191.

B. The Court of Appeal’s decision in Konkur abrogated Vega.

Vega held that NYLL § 191(1)(a)(i) was privately enforceable through NYLL §

198(1-a), reasoning that late payments are “wage claims” because they are

“anderpayments,” which the Court defined as “pay[ing] less than what is required.”

But as established in LBG’s principal brief, the Court of Appeals in Konkur rejected

this very argument: that merely “pay[ing] less than what is required” creates a

privately enforceable wage claim. (See NYSCEF Doc. No. 5 at 6.) Indeed, the

dissent in Konkur specifically made the argument that an illegal kickback of wages

was effectively an underpayment of wages. See Konkur, 39 N.Y.3d at 48-49 (Rivera,

J., dissenting). In response, the majority rejected the notion that NYLL § 198

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covers all “actions for wages.” See Konkur, 38 N.Y.3d at 43. This is because

“w]here the legislature intended for an article 6 provision to be enforced

individually, it expressly provided a private right of action.” Id. at 44-45. Again,

the Legislature has never expressly provided a private right of action for violations

under NYLL § 191(1)(a)(i), despite originally being enacted in 1890.

In an attempt to distract from the obvious—NYLL § 198 does not provide a

private right of action to enforce NYLL § 191(1)(a)(i) violations—Plaintiff once again

relies on cherry-picked language: namely, a stray statement, quoted in Konkur,

from the Gottlieb decision: “Labor Law § 191 [] ‘generally regulates payment of

wages by employers and creates reciprocal rights of employees.” (NYSCEF Doc. No.

27 at 17 (quoting Gottlieb, 82 N.Y.2d at 461).) Plaintiff contends that this sentence

supports the proposition that violations of NYLL § 191(1)(a)(i) result in liquidated

damages under § 198(1-a) equal to one hundred percent of the laid paid wages.

(NYSCEF Doc. No. 27 at 17-18.)

Nothing in Gottlieb remotely suggests this. Gottlieb concerned an employee

who claimed that he was denied earned commissions; in other words, he claimed

that he did not receive all wages due to him, not that his wages were paid late. 82

N.Y.2d at 460. NYLL § 191(1)(c) mandates that commissioned salespersons “shall

be paid the wages, salary, drawing account, commissions and all other monies

earned or payable in accordance with the agreed terms of employment|.].”2, NYLL §

191(c), however, does not apply to individuals “whose principal activity is of a

2 NYLL § 191(1)(a)(@) does not contain similar language requiring employers to pay
manual workers according to their employment contract.

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supervisory, managerial, executive or administrative nature.” NYLL § 190(6).
Because the plaintiff fell within this exclusion, the Gottlieb Court held that the

Labor Law did not protect him. See Gottlieb, 82 N.Y.2d at 462. Thus, Gottlieb cited

NYLL § 191 only to support the proposition that the plaintiff belonged to a class of

employees who were expressly excluded from the Labor Law. And Konkur cited

this proposition to reject the contention that the Labor Law automatically creates a

cause of action for claims involving wages. See Konkur, 38 N.Y.3d at 43 (rejecting

argument that NYLL § 198 applies to all “actions for wages”). Both Gottlieb and

Konkur, therefore, undermine Plaintiff's claim because they show that not all

violations of Article 6 are privately enforceable.

Ill. THE NEW YORK DEPARTMENT OF LABoR HAs LONG HELD THAT PAY
FREQUENCY CLAIMS ARE “NON-WAGE” CLAIMS, NOT “WAGE” CLAIMS

Even if there was uncertainty regarding whether pay frequency violations are

actionable under NYLL § 198 (and there is not), that uncertainty must be resolved

against Plaintiff. As established in LBG’s principal brief, the DOL has long held

that pay frequency claims are “non-wage claims,” as opposed to “wage claims” which

result in liquidated damages. This interpretation is entitled to deference. See

Barenboim v. Starbucks Corp., 21 N.Y.3d 460, 470 (2013) (the DOL’s “interpretation

of a statute it is charged with enforcing is entitled to deference”).

Plaintiff does not dispute that NYLL § 218 sets forth a comprehensive

mechanism for enforcing the NYLL, separating violations (and remedies) into two

categories: wage claims and non-wage claims. He does not contest that non-wage

3 As noted above, Gottlieb has since been abrogated by the No Wage Loophole Act.
See Mendoza v. Cornell Uni., 215 A.D.3d at 591.

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claims are subject only to civil penalties, while wage claims are subject to civil

penalties and mandatory liquidated damages (the damages Plaintiff seeks here).

See NYLL § 218. Given this structure of the Labor Law, Plaintiffs only way to

pursue his claim is to try to remake a frequency of pay violation into a “wage claim.”

Plaintiff does not seriously dispute that frequency of pay claims have never

been classified by the DOL or the Industrial Board of Appeals (“IBA”) as wage

claims. He does not dispute, for example: (1) the DOL’s website specifically

identifies frequency of pay violations as a non-wage claim; (2) the official DOL

Complaint Form used to file Labor Law violations identifies frequency of pay

violations as a non-wage claim; (3) DOL-published guidelines identify frequency of

pay violations as a non-wage claim; (4) DOL opinion letters identify frequency of

pay violations as a non-wage claim; and, critically, (5) IBA decisions categorize

NYLL 191(1)(a)@) as non-wage violations subject to civil penalties, not liquidated

damages. (See NYSCEF Doc. No. 5 at 7-9.) The IBA has never awarded liquidated

damages for violations of NYLL § 191(1)(a)(i), which it would have been statutorily

required to award if a frequency of pay violation were a wage claim.

Plaintiffs only substantive response is to erroneously quote from a single

DOL opinion letter. That opinion letter offers no support that a private right of

action exists for errors relating to the frequency in which payroll is processed under

NYLL § 191(1)(a)(i). The opinion letter makes clear in its opening paragraph that it

is responding to a request for an opinion on “three areas”: direct deposit of wages,

meal periods, and child labor. See DOL, Op. Ltr. RO-10-0003, at 1 (Oct. 28, 2010).

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It does not address whether a private right of action exists for a payroll processing

error under NYLL § 191, and the inquiring party did not ask such a question.

Accordingly, just as with the legislative history, Plaintiff relies on cherry-

picked quotes taken out of context. This alone is telling and shows that there is no

persuasive argument that violations of NYLL § 191(1)(a)(@j) are privately enforceable

through NYLL § 198(1-a).

Iv. THE COURT SHOULD DECLINE TO RECOGNIZE AN IMPLIED RIGHT OF
ACTION For PAy FREQUENCY VIOLATIONS UNDER NYLL § 191

Plaintiff contends that even if there is no express cause of action to enforce

pay frequency violations, this Court should step into the shoes of the Legislature

and simply create one. That avenue, however, has been foreclosed by the Court of

Appeals’ decision in Konkur, decided after Vega. In Konkur, the Court of Appeals

held that an implied private right of action cannot be created for violations of

Article 6 of the Labor Law because “where the legislature intended for an article 6

provision to be enforced individually, it expressly provided a private right of action.”

38 N.Y.3d at 44.

NYLL § 191 is an article 6 provision. Vega, therefore, is no longer good law in

light of Konkur. Plaintiff does not substantively address these arguments; instead,

he argues in conclusory fashion that recognizing “a private right of action would

promote the legislative purpose of protecting workers who are generally dependent

upon their wages for sustenance.” (See NYSCEF Doc. No. 27 at 14.)

But the purpose of the weekly pay requirement is not to ensure that manual

workers receive weekly pay because they are more reliant on wages than other

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workers. If this were true, NYLL § 191 would not permit large employers in the

state who employ the greatest number of manual workers—those with over 1,000

employees—to obtain authorization to pay less frequently than weekly. See NYLL §

191(1)(a)(ii). The NYLL weekly pay requirement is also not triggered by how much

a worker earns. A “manual worker” might be paid well above minimum wage and

be eligible for weekly pay, while a clerical worker might only receive minimum wage

and not qualify for weekly pay.

Instead, the purpose of the law is to ensure the employer has the financial

stability to make payroll. This is made clear from the factors the Commissioner is

statutorily required to review when determining whether to grant a waiver, which

have nothing to do with how much the employee earns or the alleged harm from

biweekly pay, but rather the financial ability of the employer. See Ex. T, Sponsor

Mem., Bill Jacket, L. 1993, ch. 93, at 5 (“The purpose of the law is to protect

employees from unscrupulous and/or under financed employers.”).

Indeed, soon after the law was originally enacted, the Attorney General, who

was then responsible for its enforcement, opined that bi-weekly pay was lawful. See

Ex. U, Annual Report of the Attorney-General of the State of New York (Jan. 2,

1895).4 So long as manual workers receive regular pay, as the Attorney General

observed in 1895, the statutory purpose was satisfied. Here, Plaintiff concedes that

4 The Weekly Pay Act required that covered employers “shall pay weekly, each and
every employee engaged in its business, the wages earned by such employe [sic] to
within six days of the date of such payment[.]” L. 1890, ch. 388, § 1. The current
iteration of the Weekly Pay Act remains substantially unchanged, except that it
extends the grace period from six days to seven. NYLL § 191(1)(a)(i).

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he received regular pay. He therefore does not belong to the class of employees for

whom the law was designed to protect.

Cementing this conclusion is the Court of Appeals’ Vetri decision, which

Plaintiff cites throughout his opposition. (See NYSCEF Doc. No. 27 at 10, 13, 20.)

The Court of Appeals observed in that case that the Weekly Pay Act “should be

strictly construed,” because it constitutes a statutory penalty. See People v. Vetri,

309 N.Y. 401, 405 (1955). Surely, implying a private right of action would directly

conflict with construing the statute strictly.

Finally, Plaintiff ignores that the Legislature already provided for a remedy:

public enforcement and civil fines. See NYLL § 218. Plaintiff improperly seeks to

supplant the Legislature’s choice.

V. PERMITTING LIQUIDATED DAMAGES WOULD BE UNCONSTITUTIONAL

The doctrine of constitutional avoidance commands courts, when faced with

two plausible constructions of a statute—one constitutional and the other

unconstitutional—to choose the constitutional reading. Overstock.com, Inc. v. New

York State Dept. of Taxation, 20 N.Y.3d 586, 593 (2013). LBG explained the serious

constitutional problem with finding a private right of action: namely, the gross

disparity between alleged harm (de minimis) and damages sought in this case.

(NYSCEF Doe. No. 5 at 19-20.)

Plaintiff contends there

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Motion-Secondary: John L. Hyman v. Leeding Builders Group Llc

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