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PELTON GRAHAM LLC
Brent E. Pelton
Taylor B. Graham
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
www.PeltonGraham.com
Attorneys for Plaintiffs and the
putative Class
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
JOSE SALAZAR ORTIZ, FLORENCIO
RIVERA RODRIGUEZ, FELIX ORTEGA
PACHECO, GONZALO MARTINEZ,
JUAN CAMPOS TREJO, PLUTARCO Index No. 513496/2019
NAVARRETE CABAÑAS, and FOTIS
LOUZAKOS, Individually and on Behalf of
All Putative Class Members,
VERIFIED AMENDED CLASS
Plaintiffs, ACTION COMPLAINT
-against-
KARABINIS DINER CORP. d/b/a OASIS Jury Trial Demanded
DINER, AINOS REALTY CORP.,
PETROS LIBERATOS, HELEN
LIBERATOS, and GEORGE LIBERATOS,
Jointly and Severally,
Defendants.
Plaintiffs Jose Salazar Ortiz, Florencio Rivera Rodriguez, Felix Ortega Pacheco, Gonzalo
Martinez, Juan Campos Trejo, Plutarco Navarrete Cabañas, and Fotis Louzakos (the “Plaintiffs”),
individually and on behalf of all others similarly situated, as class representatives, upon personal
knowledge as to themselves and upon information and belief as to other matters, allege as follows:
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NATURE OF THE ACTION
1. Plaintiffs are current and former dishwashers, delivery employees, bussers, line
cooks and bakers at Defendants’ diner located in Brooklyn, New York. For their work, throughout
the relevant time period, Plaintiffs were not paid minimum wages for all hours worked and were
not paid overtime premiums for hours worked over forty (40) in a given workweek.
2. Plaintiffs bring this action to recover unpaid minimum wages and overtime
premium pay owed to them pursuant to the New York Labor Law (“NYLL”), §§ 650 et seq.
Plaintiffs also bring claims for unpaid spread-of-hours premiums, and for failure to provide proper
wage notices and wage statements pursuant to NYLL §§ 190 et seq. and the supporting regulations.
3. Plaintiffs bring their NYLL claims on behalf of themselves and a New York Civil
Practice Law & Rules (“NY CPLR”) § 901class of all non-management employees working for
Defendants in New York.
4. Plaintiffs Rivera, Ortega, Campos and Navarrete additionally bring individual
claims for retaliation under NYLL § 215. Shortly after Defendants were served with the Verified
Summons and Complaint, Defendants began a sustained campaign of harassment, abuse and
intimidation. Defendants cut Plaintiffs’ hours and tips. Finally, Defendants terminated Plaintiffs
Ortega and Campos without justification and created an extremely abusive environment that
resulted in constructive termination as to Plaintiffs Rivera and Navarrete.
JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction over this matter pursuant to NY CPLR
§§ 301 and 302(a)(1) because the Defendants are domiciled in New York and/or conduct business
within the State of New York.
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6. Venue is proper in this district pursuant to NY CPLR § 503(a) because Defendants
are residents of this county.
THE PARTIES
Plaintiffs:
7. Plaintiff Jose Salazar Ortiz (“Salazar”) was, at all relevant times, an adult individual
residing in Kings County, New York.
8. Plaintiff Florencio Rivera Rodriguez (“Rivera”) was, at all relevant times, an adult
individual residing in Kings County, New York.
9. Plaintiff Felix Ortega Pacheco (“Ortega”) was, at all relevant times, an adult
individual residing in Kings County, New York.
10. Plaintiff Gonzalo Martinez (“Martinez”) was, at all relevant times, an adult
individual residing in Bronx County, New York.
11. Plaintiff Juan Campos Trejo (“Campos”) was, at all relevant times, an adult
individual residing in Kings County, New York.
12. Plaintiff Plutarco Navarrete Cabañas (“Navarrete”) was, at all relevant times, an
adult individual residing in Kings County, New York.
13. Plaintiff Fotis Louzakos (“Louzakos”) was, at all relevant times, an adult individual
residing in Monmouth County, New Jersey.
14. Throughout the relevant time period, Plaintiffs performed work for Defendants at
“Oasis Diner,” located at 2132 Flatbush Avenue, Brooklyn, New York 11234.
15. Plaintiffs consent in writing to be parties to this action, pursuant to 29 U.S.C. §
216(b), and their consent forms are attached hereto.
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Defendants:
16. Karabinis Diner Corp. is an active New York Corporation doing business as “Oasis
Diner” with its principal place of business at 2132 Flatbush Avenue, Brooklyn, New York 11234,
and DOS Process address at 7 Juneau Boulevard, Woodbury, New York 11797.
17. Ainos Realty Corp. is an active New York Corporation with its principal place of
business at 2132 Flatbush Avenue, Brooklyn, New York 11234, and DOS Process address at 7
Juneau Boulevard, Woodbury, New York 11797.
18. Upon information and belief, Ainos Realty Corp. owns the premises where Oasis
Diner is located.
19. Karabinis Diner Corp. and Ainos Realty Corp. are hereinafter referred to
collectively as “Oasis Diner” or the “Corporate Defendants.”
20. Upon information and belief, the Individual Defendants operate the Corporate
Defendants as either alter egos of themselves and/or fail to operate the Corporate Defendants as
entities legally separate and apart from themselves by, among other things, transferring assets and
debts freely as between the Corporate Defendants and intermingling assets and debts of their own
with the Corporate Defendants.
21. Upon information and belief, the Corporate Defendants are located at the same
address, managed by the same persons, and share the same resources and personnel.
22. Upon information and belief, during the relevant time period, the Individual
Defendants used assets from Karabinis Diner Corp. and Ainos Realty Corp. to operate Oasis Diner,
including to pay the cash wages to the employees of Oasis Diner.
23. The Corporate Defendants’ operations are interrelated and unified and are a single
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enterprise and/or joint employer of Plaintiffs.
24. At all relevant times, the Corporate Defendants operated together as a single
business enterprise utilizing the same practices and policies.
25. Upon information and belief, Petros Liberatos (“P. Liberatos”), is an owner and
operator of the Corporate Defendants.
26. Upon information and belief, Helen Liberatos (“H. Liberatos”), is an owner and
operator of the Corporate Defendants.
27. Upon information and belief, George Liberatos (“G. Liberatos” and, collectively
with P. Liberatos and H. Liberatos, the “Individual Defendants” and, collectively with the
Corporate Defendants, the “Defendants”) is an owner and operator of the Corporate Defendants.
28. The Individual Defendants maintained operational control over the Corporate
Defendants and jointly managed the Oasis Diner by determining the wages and compensation of
employees, establishing the schedule of employees, maintaining employee records, and through
possessing the authority to hire and fire employees, including Plaintiffs.
29. The Individual Defendants jointly employed Plaintiffs, and all similarly situated
employees, by acting in the interest of each other with respect to the employees, paying the
employees by the same methods, and sharing control over the employees.
30. The Individual Defendants participated in the day-to-day operations of the
Corporate Defendants and acted intentionally in their direction and control of Plaintiffs and the
Defendants’ other similarly situated employees, and are each “employers” pursuant to the NYLL
§ 2 and the regulations thereunder, and are jointly and severally liable with the Corporate
Defendants.
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31. At all relevant times, Plaintiffs, the opt-in plaintiffs and the Class Members were
employed by Defendants within the meaning of the NYLL §§ 2 and 651.
NEW YORK CLASS ACTION ALLEGATIONS
32. Pursuant to the NYLL, Plaintiffs bring their First through Sixth Causes of Action
under NY CPLR § 901 on behalf of themselves and the following class:
All persons employed by Defendants at any time since June 18, 2013
and through the entry of judgment in this case (the “Class Period”)
who worked as non-management employees at Oasis Diner (the
“Class Members”).
33. The Class Members are readily ascertainable. The number and identity of the Class
Members are determinable from the records of Defendants. For purposes of notice and other
purposes related to this action, their names and addresses are readily available from Defendants.
Notice can be provided by means permissible under NY CPLR § 901.
34. The Class Members are so numerous that joinder of all members is impracticable.
35. Upon information and belief, there are well in excess of forty (40) Class Members.
36. The questions of law and fact common to the Class predominate over any questions
solely affecting the individual members of the Class. These common questions include, but are not
limited to:
a. whether Defendants employed Plaintiffs and the Class Members within the
meaning of the NYLL;
b. whether Defendants failed to keep true and accurate time records for all hours
worked by Plaintiffs and the Class Members;
c. whether Defendants failed and/or refused to pay Plaintiffs and the Class
Members minimum wage for all hours worked;
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d. whether Defendants failed and/or refused to pay Plaintiffs and the Class
Members overtime premiums for hours worked in excess of forty (40) hours
per workweek;
e. whether Defendants failed to pay Plaintiffs and the Class Members an extra
hour of minimum wage when working shifts in excess of ten (10) hours and/or
split shifts;
f. whether Defendants failed to provide Plaintiffs and the Class Members with a
proper statement of wages with every wage payment as required by the NYLL;
g. whether Defendants failed to provide proper wage notice to Plaintiffs and Class
Members at the beginning of their employment and/or on February 1 of each
year as required by the NYLL;
h. whether Defendants properly notified Plaintiffs and the Class Members that
they were taking the tip credit;
i. whether Defendants failed to reimburse Plaintiffs for the cost of delivery
vehicle maintenance and expenses;
j. whether Defendants’ failure to properly pay Plaintiffs and the Class Members
lacked a good faith basis; and
k. whether Defendants are liable for all damages claimed hereunder, including but
not limited to compensatory damages, liquidated damages, interest, costs and
disbursements and attorneys’ fees.
37. Plaintiffs’ claims are typical of the Class Members’ claims. Plaintiffs, like all Class
Members, are restaurant employees of Defendants who worked for Defendants pursuant to their
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corporate policies. Plaintiffs, like all Class Members, were, inter alia, paid less than the statutory
minimum wage for all hours worked, were not paid overtime premium pay for hours worked over
forty (40) hours in a given workweek, were not paid spread-of-hours premiums when working a
shift and/or split shift of ten (10) or more hours, were not reimbursed for business expenses
including delivery vehicle expenses, did not receive proper wage statements and wage notices. If
Defendants are liable to Plaintiffs for the claims enumerated in this Complaint, they are also liable
to all Class Members.
38. Plaintiffs and their Counsel will fairly and adequately represent the Class. There
are no conflicts between Plaintiffs and the Class Members, and Plaintiffs bring this lawsuit out of
a desire to help all Class Members, not merely out of a desire to recover their own damages.
39. Plaintiffs’ counsel are experienced class action litigators who are well-prepared to
represent the interests of the Class Members.
40. A class action is superior to other available methods for the fair and efficient
adjudication of this litigation.
41. Defendants are sophisticated parties with substantial resources. The individual
plaintiffs lack the financial resources to vigorously prosecute a lawsuit in federal court against
corporate defendants.
42. The individual members of the Class have no interest or capacity to bring separate
actions; Plaintiffs are unaware of any other litigation concerning this controversy; it is desirable to
concentrate the litigation in one case; and there are no likely difficulties that will arise in managing
the class action.
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STATEMENT OF FACTS
Oasis Diner
43. Upon information and belief, the Individual Defendants have owned and operated
the Oasis Diner through the Corporate Defendants since in or around 2007, although the Oasis
Diner has been open through different corporations and owners, since in or around 1984.
44. Karabinis Diner Corp. was registered with the New York State Department of State,
Division of Corporations on July 27, 2007.
45. Ainos Realty Corp. was registered with the New York State Department of State,
Division of Corporations on August 17, 2007.
46. In the corporate filings with the New York State Department of State, Division of
Corporations, Defendant P. Liberatos is listed as the Chief Executive Officer and Principal
Executive Officer for Karabinis Diner Corp. and Ainos Realty Corp.
47. Upon information and belief, Defendants P. Liberatos, H. Liberatos, and G.
Liberatos are a constant presence at the Oasis Diner where they manage the operations of the
restaurant and take an active role in ensuring that the restaurant is run in accordance with their
procedures and policies.
48. Upon information and belief, at all times relevant, Defendants P. Liberatos, H.
Liberatos, and G. Liberatos, have had power over payroll and personnel decisions at Oasis Diner,
including the power to hire and fire employees, set their wages, retain time and/or wage records,
and otherwise control the terms and conditions of their employment.
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Plaintiffs’ Work for Defendants
49. Plaintiff Jose Salazar Ortiz was employed by Defendants as a dishwasher, porter,
and delivery employee at Oasis Diner from in or around May 2015 through in or around December
2018 (the “Salazar Employment Period”).
50. Throughout the Salazar Employment Period, Plaintiff Salazar was typically
scheduled to work six (6) days per week, with most Sundays off. Plaintiff Salazar generally worked
from approximately 7:00 am to approximately 4:00 pm, and sometimes 5:00 pm, for a total of
approximately fifty-four (54) hours per week, and sometimes more. In or around 2016, for a period
of approximately three (3) weeks to one (1) month, Plaintiff Salazar was requested to work five
(5) days per week, with the same schedule, from approximately 7:00 am to approximately 4:00 pm
or 5:00 pm, for a total of approximately forty-five (45) hours per week, and sometimes more.
51. Plaintiff Salazar was rarely able to take breaks, and when he was able to take breaks,
they typically lasted between five to ten (5-10) minutes.
52. For his work, from the beginning of his employment period to in or around 2017,
Plaintiff Salazar was paid a fixed salary in the amount of three hundred and seventy-five dollars
($375.00) per week. From in or around 2017 to the end of his employment period, Plaintiff Salazar
was paid a fixed salary in the amount of four hundred and twenty dollars ($420.00) per week,
based on approximately seventy dollars ($70.00) per day. If Plaintiff Salazar was absent for a day,
due to an illness or for another authorized absence from Defendants, Defendants reduced his
payment accordingly, i.e. from four hundred and twenty dollars ($420.00) for six (6) days of work,
to approximately three hundred and fifty dollars ($350.00) for five (5) days of work.
53. As such, throughout the Salazar Employment Period, Plaintiff Salazar was not paid
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the legally-required minimum wages for all hours worked and was not paid overtime premiums of
one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek.
54. Throughout the Salazar Employment Period, Plaintiff Salazar received his weekly
payments in cash without a pay stub or any other wage statement that provided details of the hours
worked during the week or his hourly pay rate.
55. As a delivery employee, Plaintiff Salazar was required to use his own bicycle and
pay out-of-pocket for the maintenance expenses, such as flat tires. At no time was Plaintiff Salazar
reimbursed for any maintenance-related expenses by Defendants.
56. Plaintiff Florencio Rivera Rodriguez has been working with Defendants as a
dishwasher, porter, and delivery employee at Oasis Diner from in or around September 2007 to
the present (the “Rivera Employment Period”).
57. At the beginning of the Rivera Employment Period, from in or around 2007 to in
or around 2012, Plaintiff Rivera was typically scheduled to work six (6) days per week, with the
following hours: Sundays through Thursdays, from approximately 1:00 pm to approximately 11:00
pm, and Fridays and Saturdays, from approximately 1:00 pm to approximately 12:00 am, for a
total of approximately sixty-two (62) hours per week.
58. Thereafter, from in or around 2012 to in or around 2018, Plaintiff Rivera was
scheduled to worked six (6) days per week, with most Tuesdays off. Plaintiff Rivera usually
worked with the following schedule: Sundays to Thursdays, from approximately 2:00 pm to
approximately 11:00 pm, and Fridays and Saturdays, from approximately 2:00 pm to
approximately 12:00 am, for a total of approximately fifty-six (56) hours per week.
59. For the last portion of his employment, from in or around the beginning of 2019 to
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the present, Plaintiff Rivera has been scheduled to work six (6) days per week, with most Tuesdays
off. Plaintiff Rivera typically works the following hours: Mondays, from approximately 7:00 am
to approximately 3:00 pm; Wednesdays and Thursdays, from approximately 3:00 pm to
approximately 11:00 pm; Fridays, from approximately 12:00 pm to approximately 8:00 pm;
Saturdays, from approximately 3:00 pm to approximately 12:00 am, and Sundays, from
approximately 12:00 pm to approximately 8:00 pm, for a total of approximately forty-nine (49)
hours per week.
60. Plaintiff Rivera is rarely able to take breaks, and when he is able to take breaks,
they typically last between five to ten (5-10) minutes.
61. For his work, from in or around 2011 to in or around 2014, Plaintiff Rivera was
paid a fixed salary in the amount of three hundred dollars ($300.00) per week. From in or around
2014 to in or around 2016, Plaintiff Rivera was paid a fixed salary in the amount of three hundred
and sixty dollars ($360.00) per week. From in or around 2016 to in or around 2018, Plaintiff
Rivera was paid a fixed salary in the amount of three hundred and eighty dollars ($380.00) per
week. If Plaintiff Rivera was absent for a day at work, his weekly rate payment was reduced
accordingly.
62. At the beginning of 2019, Plaintiff Rivera was informed by Defendant P. Liberatos,
that he will be paid at a rate of ten dollars ($10.00) per hour. Since that time, Plaintiff Rivera has
been paid ten dollars ($10.00) per hour, for all hours worked, including those beyond forty (40) in
a given workweek.
63. As such, throughout the Rivera Employment Period, Plaintiff Rivera has not been
paid the legally-required minimum wages for all hours worked and has not been paid overtime
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premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each
workweek.
64. Throughout his employment period at Oasis Diner, Plaintiff Rivera has been
receiving his weekly wage payments in cash without a pay stub or any other wage statement that
provides details of the hours worked during the week or his hourly pay rate.
65. As a delivery employee, Plaintiff Rivera is required to use his own bicycle and pay
the maintenance expenses such as flat tires. At no time has Plaintiff Rivera been reimbursed for
any maintenance-related expenses by Defendants.
66. Plaintiff Felix Ortega Pacheco has been working with Defendants as a
dishwasher, porter, busser, and delivery employee at Oasis Diner from in or around 2007 to the
present (the “Ortega Employment Period”).
67. For the relevant time period, from in or around 2013 to in or around 2018, Plaintiff
Ortega was typically scheduled to work six (6) days per week, with most Wednesdays off. Plaintiff
Ortega typically worked the following hours: Mondays, Tuesdays, Thursdays, and Fridays, from
approximately 2:00 pm to approximately 11:00 pm; Saturdays, from approximately 6:00 am to
approximately 4:00 pm; and Sundays from approximately 6:00 am to approximately 11:00 pm, for
a total of approximately sixty-three (63) hours per week.
68. For the last portion of his employment period, from in or around the beginning of
2019 to the present, Plaintiff Ortega has been scheduled to work seven (7) days per week, with the
following hours: Mondays, from approximately 3:00 pm to approximately 11:00 pm; Tuesdays,
from approximately 2:30 pm to approximately 11:00 pm; Wednesdays, from approximately 7:00
am to approximately 3:00 pm; Thursdays, from approximately 7:00 am to approximately 3:00 pm;
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Fridays, from approximately 7:00 am to approximately 3:00 pm; Saturdays from approximately
7:00 am to approximately 3:00 pm; and Sundays from approximately 7:00 am to approximately
11:00 pm, for a total of approximately sixty-four and one-half (64.5) hours per week.
69. Plaintiff Ortega is rarely able to take breaks, and when he is able to take breaks,
they typically last between five to ten (5-10) minutes.
70. For his work, during the relevant time period, from in or around 2013 to in or around
2015, Plaintiff Ortega was paid a fixed salary in the amount of three hundred and sixty ($360.00)
dollars per week. From in or around 2015 to in or around June 2018, Plaintiff Ortega was paid a
fixed salary in the amount of four hundred and twenty dollars ($420.00) per week. For the last
months of 2018, from in or around June 2018 to in or around December 2018, Plaintiff Ortega was
paid a fixed salary in the amount of four hundred and forty dollars ($440.00) per week.
71. From in or around the beginning of 2019 to the present, Plaintiff Ortega was
informed by Defendant P. Liberatos that he will be paid at a rate of ten dollars ($10.00) per hour.
In reality, Plaintiff Ortega has been paid by a fixed rate per day or shift or work, in the amount of
eighty dollars ($80.00) per day/shift. For the first six (6) days of the week, when he is performing
a “single” shift each day, Plaintiff Ortega receives the amount of four hundred and eighty dollars
($480.00). For his work on Sundays, which is considered a “double shift”, Plaintiff Ortega
receives the amount of one hundred and sixty dollars ($160.00) for that day of work, for a total of
approximately six hundred and forty dollars ($640.00) per week.
72. As such, throughout the Ortega Employment Period, Plaintiff Ortega has not and is
not been paid the legally-required minimum wages for all hours worked and has not been paid
overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40)
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each workweek.
73. Throughout his employment period at Oasis Diner, Plaintiff Ortega has been
receiving his weekly payments in cash without a pay stub or any other wage statement that
provided details of the hours worked during the week or his hourly pay rate.
74. Plaintiff Gonzalo Martinez has been working with Defendants as a busser, and on
an as-needed basis, as a dishwasher and delivery employee at Oasis Diner from in or around
August 2017 to the present (the “Martinez Employment Period”).
75. Throughout Martinez employment period, Plaintiff Martinez has been scheduled to
work five (5) days per week, with most Wednesdays and Thursdays off. Plaintiff Martinez
generally works the following hours: Mondays, from approximately 6:00 am to approximately
4:00 pm; Tuesdays, from approximately 3:00 pm to approximately 11:00 pm; Fridays, from
approximately 3:00 pm to approximately 12:00 am; Saturdays, from approximately 9:00 am to
approximately 9:00 pm, but Plaintiff usually arrives between approximately 10:00 am to 11:00 am
due to the fact that he is responsible to close the diner the previous day; and Sundays from
approximately 6:00 am to approximately 4:00 pm, for a total of forty-seven (47) to forty-eight
(48) hours per week.
76. Plaintiff Martinez is rarely able to take breaks during weekdays, and when he is
able to take breaks, they typically last between five to ten (5-10) minutes. During Saturday shifts,
when the diner has two (2) bussers working in the dining room, Plaintiff Martinez is sometimes
able, with consent of the other busser, to take an uninterrupted thirty (30) minute break.
77. For his work, at the beginning of his employment period in or around 2017 for a
period of approximately seven (7) months, Plaintiff Martinez was paid at a rate of six dollars
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($6.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek.
From in or around 2018 to in or around 2019, Plaintiff Martinez was paid at a rate of seven dollars
($7.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek.
From in or around the beginning of 2019 to the present, Plaintiff Martinez has been paid at a rate
of eight dollars ($8.00) per hour, for all hours worked, including those beyond forty (40) in a given
workweek.
78. As such, throughout most of the Martinez Employment Period, Plaintiff Martinez
has not been paid the legally-required minimum wages for all hours worked and has not been paid
overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40)
each workweek.
79. Throughout his employment period at Oasis Diner, Plaintiff Martinez has been
receiving his weekly payments in cash without a pay stub or any other wage statement that
provided details of the hours worked during the week or his hourly pay rate.
80. Plaintiff Juan Campos Trejo has worked with Defendants as a dishwasher, porter,
and delivery employee at Oasis Diner from in or around 2004 to in or around 2007, and for a
second period from in or around 2014 to the present (the “Campos Employment Period”).
81. For the relevant time period, from in or around 2014 to in or around 2018, Plaintiff
Campos was typically scheduled to work five (5) days per week, with most Mondays and Tuesdays
off. Plaintiff Campos generally worked each day from approximately 2:00 pm to approximately
11:00 pm for a total of approximately forty-five (45) hours per week. For in or around the
beginning of 2019 to the present, Plaintiff Campos has been scheduled to work four (4) days per
week, with most Wednesdays, Thursdays, and Fridays off. Plaintiff Campos generally works
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Mondays, Tuesdays, Saturdays and Sundays, from approximately 3:00 pm to approximately
between 11:00 pm and 11:30 pm, for a total of approximately thirty-two (32) to thirty-four (34)
hours per week.
82. Plaintiff Campos is rarely able to take breaks, and when he is able to take breaks,
they typically last between five to ten (5-10) minutes.
83. For his work, during the relevant time period from in or around 2014 to in or around
2018, Plaintiff Campos was paid a fixed salary in the amount of three hundred and sixty dollars
($360.00) per week. From in or around the beginning of 2019 to the present, Plaintiff Campos has
been paid a fixed salary in the amount of four hundred dollars ($400.00) per week.
84. As such, throughout most of the Campos Employment Period, Plaintiff Campos has
not been paid the legally-required minimum wages for all hours worked and has not been paid
overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40)
each workweek.
85. Throughout his employment period at Oasis Diner, Plaintiff Campos has been
receiving his weekly payments in cash without a pay stub or any other wage statement that
provided details of the hours worked during the week or his hourly pay rate.
86. Plaintiff Plutarco Navarrete Cabañas has been working with Defendants as a
line cook and sometimes dishwasher at Oasis Diner from in or around October 2015 to the present
(the “Navarrete Employment Period”).
87. At the beginning of Navarrete employment period, from in or around 2015 to in or
around 2018, Plaintiff Navarrete was typically scheduled to work six (6) days per week, with most
Tuesdays off. Plaintiff Navarrete generally worked the following hours: Mondays, from
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approximately 5:00 am to approximately 1:00 pm; Wednesdays, from approximately 8:00 am to
approximately 9:00 pm; Thursdays, from approximately 12:00 pm to approximately 9:00 pm;
Fridays, from approximately 11:00 am to between approximately 9:00 pm to 10:00 pm; Saturdays,
from approximately 9:00 am to approximately 9:00 pm; and Sundays from approximately 9:00 am
to between approximately 7:00 pm to 8:00 pm, for a total of approximately sixty-two (62) to sixty-
four (64) hours per week.
88. From the beginning of 2019 to the present, Plaintiff Navarrete has been scheduled
to work six (6) days per week, with most Tuesdays off. Plaintiff Navarrete generally works the
following hours: Mondays, from approximately 5:00 am to approximately 1:00 pm; Wednesdays,
from approximately 8:00 am to approximately 2:00 pm; Thursdays, from approximately 12:00 pm
to approximately 9:00 pm; Fridays, from approximately 11:00 am to between approximately 9:00
pm to 10:00 pm; Saturdays, from approximately 9:00 am to approximately 9:00 pm; and Sundays
from approximately 9:00 am to between approximately 8:00 pm to 9:00 pm, for a total of
approximately fifty-six (56) to fifty-eight (58) hours per week.
89. Plaintiff Navarrete is rarely able to take breaks, and when he is able to take breaks,
they typically last between fifteen to twenty (15-20) minutes.
90. For his work, for the first six (6) months of his employment period, from in or
around October 2015 to in or around April 2016, Plaintiff Navarrete was paid an hourly rate in the
amount of twelve dollars ($12.00) per hour, for all hours worked, including those beyond forty
(40) in a given workweek. From in or around April 2016 to in or around 2018, Plaintiff Navarrete
was paid an hourly rate in the amount of thirteen dollars ($13.00) per hour, for all hours worked,
including those beyond forty (40) in a given workweek.
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91. At the beginning of 2019, Defendant P. Liberatos informed Plaintiff Navarrete that
he would increase his hourly rate to fifteen dollars ($15.00) for regular hours, and a rate of twenty
dollars ($20.00) for the hours worked beyond forty (40) in a given work week. Despite the rates
informed by Defendant P. Liberatos of how he would be paid during the current year, Plaintiff
Navarrete cannot confirm these rates are actually paid except for the portion paid by check, which
typically represents up to 40 hours each week. Even if Navarrete is paid $20 per hour for hours
over 40 each week, that is still less than one and one-half (1.5) times his regular rate, which should
be paid for such overtime hours.
92. As such, during a large portion of the Navarrete Employment Period, Plaintiff
Navarrete was not paid the legally-required minimum wages for all hours worked and has not been
paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty
(40) each workweek.
93. During the first six (6) months of his employment period, Plaintiff Navarrete
received his wages entirely in cash without a pay stub or any other wage statement that provided
details of the hours worked during the week or his hourly pay rate. From in or around April 2016
to the present, Plaintiff Navarrete has been receiving his weekly payments in a combination of
cash and check with a pay stub that reflects only a portion of the amount of hours worked during
the work week up to forty (40) forty hours, and which does not include the wages paid by cash.
94. Plaintiff Fotis Louzakos worked with Defendants as a baker and food prep at Oasis
Diner from in or around March 2010 to in or around August 2013 (the “Louzakos Employment
Period”).
95. Throughout his entire employment period, Plaintiff Louzakos was scheduled to
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work six (6) days per week. Plaintiff Louzakos typically worked from approximately 6:00 am to
between approximately 3:00 pm and 4:00 pm, for a total of approximately fifty-four (54) to sixty
(60) hours per week.
96. For his work, at the beginning of his employment period, Plaintiff Louzakos was
paid a fixed salary in the amount of four hundred and seventy-five dollars ($475.00) per week, for
all hours worked including those beyond forty (40) in a given workweek. For the last year of his
employment period, from in or around 2012 to in or around 2013, Plaintiff Louzakos received a
fixed salary in the amount of five hundred dollars ($500.00) per week, for all hours worked
including those beyond forty (40) in a given workweek.
97. Plaintiff Louzakos was rarely able to take breaks, and when he was able to take
breaks, they typically lasted between five to ten (5-10) minutes.
98. As such, throughout the Louzakos Employment Period, Plaintiff Louzakos was not
paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty
(40) each workweek.
99. Throughout his entire employment period at Oasis Diner, Plaintiff Louzakos
received his weekly payments in cash without a pay stub or any other wage statement that provided
details of the hours worked during the week or his hourly pay rate.
100. Plaintiffs Salazar, Rivera, Ortega and Campos, while working as delivery
employees were also required to perform additional non-tip-generating tasks, such as dishwashing
and cleaning the restaurant, for substantially more than twenty percent (20%) of their work time
at the diner. Accordingly, they should have been compensated at the full minimum wage, rather
than a “tipped” minimum wage, during weeks in which these non-tip-generating tasks exceeded
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more than twenty percent (20%) of their work hours.
101. As delivery employees, Plaintiffs Salazar, Rivera, Ortega and Campos were not
always provided with the full gratuities left for them by customers on credit cards. Specifically, if
a customer paid a gratuity on their credit card, Plaintiffs were required to request payment of the
gratuity from the person working at the cash register, which was typically Defendant H. Liberatos,
whom would typically pay Plaintiffs less than the full gratuity left by the customer and sometimes
would not pay them any gratuity left by the customer. If the Plaintiffs were provided a gratuity
from a customer in cash, they were able to retain the full gratuity paid to them.
102. As delivery employees, Plaintiffs Salazar, Rivera, Ortega and Campos were
required to use their own bicycles to perform the deliveries and to pay out-of-pocket for all
maintenance-related expenses, such as flat tires. At no time did Defendants reimburse Plaintiffs
for their maintenance-related expenses for their bicycle, which is a necessary “tool of the trade”
for Defendants’ delivery employees.
103. During their respective employment periods, although Plaintiffs have typically
worked a spread of more than ten (10) hours per day or split shifts, they have not received spread-
of-hours premiums equal to an additional hour at the applicable minimum wage for such days.
104. Throughout their respective employment periods, Plaintiffs have not been provided
with wage notices at hiring, by February 1 of each year, or proper wage statements with their wage
payments each week.
Defendants’ Unlawful Corporate Pol
Preview
FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 PELTON GRAHAM LLC Brent E. Pelton Taylor B. Graham 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 www.PeltonGraham.com Attorneys for Plaintiffs and the putative Class SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS JOSE SALAZAR ORTIZ, FLORENCIO RIVERA RODRIGUEZ, FELIX ORTEGA PACHECO, GONZALO MARTINEZ, JUAN CAMPOS TREJO, PLUTARCO Index No. 513496/2019 NAVARRETE CABAÑAS, and FOTIS LOUZAKOS, Individually and on Behalf of All Putative Class Members, VERIFIED AMENDED CLASS Plaintiffs, ACTION COMPLAINT -against- KARABINIS DINER CORP. d/b/a OASIS Jury Trial Demanded DINER, AINOS REALTY CORP., PETROS LIBERATOS, HELEN LIBERATOS, and GEORGE LIBERATOS, Jointly and Severally, Defendants. Plaintiffs Jose Salazar Ortiz, Florencio Rivera Rodriguez, Felix Ortega Pacheco, Gonzalo Martinez, Juan Campos Trejo, Plutarco Navarrete Cabañas, and Fotis Louzakos (the “Plaintiffs”), individually and on behalf of all others similarly situated, as class representatives, upon personal knowledge as to themselves and upon information and belief as to other matters, allege as follows: 1 1 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 NATURE OF THE ACTION 1. Plaintiffs are current and former dishwashers, delivery employees, bussers, line cooks and bakers at Defendants’ diner located in Brooklyn, New York. For their work, throughout the relevant time period, Plaintiffs were not paid minimum wages for all hours worked and were not paid overtime premiums for hours worked over forty (40) in a given workweek. 2. Plaintiffs bring this action to recover unpaid minimum wages and overtime premium pay owed to them pursuant to the New York Labor Law (“NYLL”), §§ 650 et seq. Plaintiffs also bring claims for unpaid spread-of-hours premiums, and for failure to provide proper wage notices and wage statements pursuant to NYLL §§ 190 et seq. and the supporting regulations. 3. Plaintiffs bring their NYLL claims on behalf of themselves and a New York Civil Practice Law & Rules (“NY CPLR”) § 901class of all non-management employees working for Defendants in New York. 4. Plaintiffs Rivera, Ortega, Campos and Navarrete additionally bring individual claims for retaliation under NYLL § 215. Shortly after Defendants were served with the Verified Summons and Complaint, Defendants began a sustained campaign of harassment, abuse and intimidation. Defendants cut Plaintiffs’ hours and tips. Finally, Defendants terminated Plaintiffs Ortega and Campos without justification and created an extremely abusive environment that resulted in constructive termination as to Plaintiffs Rivera and Navarrete. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this matter pursuant to NY CPLR §§ 301 and 302(a)(1) because the Defendants are domiciled in New York and/or conduct business within the State of New York. 2 2 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 6. Venue is proper in this district pursuant to NY CPLR § 503(a) because Defendants are residents of this county. THE PARTIES Plaintiffs: 7. Plaintiff Jose Salazar Ortiz (“Salazar”) was, at all relevant times, an adult individual residing in Kings County, New York. 8. Plaintiff Florencio Rivera Rodriguez (“Rivera”) was, at all relevant times, an adult individual residing in Kings County, New York. 9. Plaintiff Felix Ortega Pacheco (“Ortega”) was, at all relevant times, an adult individual residing in Kings County, New York. 10. Plaintiff Gonzalo Martinez (“Martinez”) was, at all relevant times, an adult individual residing in Bronx County, New York. 11. Plaintiff Juan Campos Trejo (“Campos”) was, at all relevant times, an adult individual residing in Kings County, New York. 12. Plaintiff Plutarco Navarrete Cabañas (“Navarrete”) was, at all relevant times, an adult individual residing in Kings County, New York. 13. Plaintiff Fotis Louzakos (“Louzakos”) was, at all relevant times, an adult individual residing in Monmouth County, New Jersey. 14. Throughout the relevant time period, Plaintiffs performed work for Defendants at “Oasis Diner,” located at 2132 Flatbush Avenue, Brooklyn, New York 11234. 15. Plaintiffs consent in writing to be parties to this action, pursuant to 29 U.S.C. § 216(b), and their consent forms are attached hereto. 3 3 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 Defendants: 16. Karabinis Diner Corp. is an active New York Corporation doing business as “Oasis Diner” with its principal place of business at 2132 Flatbush Avenue, Brooklyn, New York 11234, and DOS Process address at 7 Juneau Boulevard, Woodbury, New York 11797. 17. Ainos Realty Corp. is an active New York Corporation with its principal place of business at 2132 Flatbush Avenue, Brooklyn, New York 11234, and DOS Process address at 7 Juneau Boulevard, Woodbury, New York 11797. 18. Upon information and belief, Ainos Realty Corp. owns the premises where Oasis Diner is located. 19. Karabinis Diner Corp. and Ainos Realty Corp. are hereinafter referred to collectively as “Oasis Diner” or the “Corporate Defendants.” 20. Upon information and belief, the Individual Defendants operate the Corporate Defendants as either alter egos of themselves and/or fail to operate the Corporate Defendants as entities legally separate and apart from themselves by, among other things, transferring assets and debts freely as between the Corporate Defendants and intermingling assets and debts of their own with the Corporate Defendants. 21. Upon information and belief, the Corporate Defendants are located at the same address, managed by the same persons, and share the same resources and personnel. 22. Upon information and belief, during the relevant time period, the Individual Defendants used assets from Karabinis Diner Corp. and Ainos Realty Corp. to operate Oasis Diner, including to pay the cash wages to the employees of Oasis Diner. 23. The Corporate Defendants’ operations are interrelated and unified and are a single 4 4 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 enterprise and/or joint employer of Plaintiffs. 24. At all relevant times, the Corporate Defendants operated together as a single business enterprise utilizing the same practices and policies. 25. Upon information and belief, Petros Liberatos (“P. Liberatos”), is an owner and operator of the Corporate Defendants. 26. Upon information and belief, Helen Liberatos (“H. Liberatos”), is an owner and operator of the Corporate Defendants. 27. Upon information and belief, George Liberatos (“G. Liberatos” and, collectively with P. Liberatos and H. Liberatos, the “Individual Defendants” and, collectively with the Corporate Defendants, the “Defendants”) is an owner and operator of the Corporate Defendants. 28. The Individual Defendants maintained operational control over the Corporate Defendants and jointly managed the Oasis Diner by determining the wages and compensation of employees, establishing the schedule of employees, maintaining employee records, and through possessing the authority to hire and fire employees, including Plaintiffs. 29. The Individual Defendants jointly employed Plaintiffs, and all similarly situated employees, by acting in the interest of each other with respect to the employees, paying the employees by the same methods, and sharing control over the employees. 30. The Individual Defendants participated in the day-to-day operations of the Corporate Defendants and acted intentionally in their direction and control of Plaintiffs and the Defendants’ other similarly situated employees, and are each “employers” pursuant to the NYLL § 2 and the regulations thereunder, and are jointly and severally liable with the Corporate Defendants. 5 5 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 31. At all relevant times, Plaintiffs, the opt-in plaintiffs and the Class Members were employed by Defendants within the meaning of the NYLL §§ 2 and 651. NEW YORK CLASS ACTION ALLEGATIONS 32. Pursuant to the NYLL, Plaintiffs bring their First through Sixth Causes of Action under NY CPLR § 901 on behalf of themselves and the following class: All persons employed by Defendants at any time since June 18, 2013 and through the entry of judgment in this case (the “Class Period”) who worked as non-management employees at Oasis Diner (the “Class Members”). 33. The Class Members are readily ascertainable. The number and identity of the Class Members are determinable from the records of Defendants. For purposes of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under NY CPLR § 901. 34. The Class Members are so numerous that joinder of all members is impracticable. 35. Upon information and belief, there are well in excess of forty (40) Class Members. 36. The questions of law and fact common to the Class predominate over any questions solely affecting the individual members of the Class. These common questions include, but are not limited to: a. whether Defendants employed Plaintiffs and the Class Members within the meaning of the NYLL; b. whether Defendants failed to keep true and accurate time records for all hours worked by Plaintiffs and the Class Members; c. whether Defendants failed and/or refused to pay Plaintiffs and the Class Members minimum wage for all hours worked; 6 6 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 d. whether Defendants failed and/or refused to pay Plaintiffs and the Class Members overtime premiums for hours worked in excess of forty (40) hours per workweek; e. whether Defendants failed to pay Plaintiffs and the Class Members an extra hour of minimum wage when working shifts in excess of ten (10) hours and/or split shifts; f. whether Defendants failed to provide Plaintiffs and the Class Members with a proper statement of wages with every wage payment as required by the NYLL; g. whether Defendants failed to provide proper wage notice to Plaintiffs and Class Members at the beginning of their employment and/or on February 1 of each year as required by the NYLL; h. whether Defendants properly notified Plaintiffs and the Class Members that they were taking the tip credit; i. whether Defendants failed to reimburse Plaintiffs for the cost of delivery vehicle maintenance and expenses; j. whether Defendants’ failure to properly pay Plaintiffs and the Class Members lacked a good faith basis; and k. whether Defendants are liable for all damages claimed hereunder, including but not limited to compensatory damages, liquidated damages, interest, costs and disbursements and attorneys’ fees. 37. Plaintiffs’ claims are typical of the Class Members’ claims. Plaintiffs, like all Class Members, are restaurant employees of Defendants who worked for Defendants pursuant to their 7 7 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 corporate policies. Plaintiffs, like all Class Members, were, inter alia, paid less than the statutory minimum wage for all hours worked, were not paid overtime premium pay for hours worked over forty (40) hours in a given workweek, were not paid spread-of-hours premiums when working a shift and/or split shift of ten (10) or more hours, were not reimbursed for business expenses including delivery vehicle expenses, did not receive proper wage statements and wage notices. If Defendants are liable to Plaintiffs for the claims enumerated in this Complaint, they are also liable to all Class Members. 38. Plaintiffs and their Counsel will fairly and adequately represent the Class. There are no conflicts between Plaintiffs and the Class Members, and Plaintiffs bring this lawsuit out of a desire to help all Class Members, not merely out of a desire to recover their own damages. 39. Plaintiffs’ counsel are experienced class action litigators who are well-prepared to represent the interests of the Class Members. 40. A class action is superior to other available methods for the fair and efficient adjudication of this litigation. 41. Defendants are sophisticated parties with substantial resources. The individual plaintiffs lack the financial resources to vigorously prosecute a lawsuit in federal court against corporate defendants. 42. The individual members of the Class have no interest or capacity to bring separate actions; Plaintiffs are unaware of any other litigation concerning this controversy; it is desirable to concentrate the litigation in one case; and there are no likely difficulties that will arise in managing the class action. 8 8 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 STATEMENT OF FACTS Oasis Diner 43. Upon information and belief, the Individual Defendants have owned and operated the Oasis Diner through the Corporate Defendants since in or around 2007, although the Oasis Diner has been open through different corporations and owners, since in or around 1984. 44. Karabinis Diner Corp. was registered with the New York State Department of State, Division of Corporations on July 27, 2007. 45. Ainos Realty Corp. was registered with the New York State Department of State, Division of Corporations on August 17, 2007. 46. In the corporate filings with the New York State Department of State, Division of Corporations, Defendant P. Liberatos is listed as the Chief Executive Officer and Principal Executive Officer for Karabinis Diner Corp. and Ainos Realty Corp. 47. Upon information and belief, Defendants P. Liberatos, H. Liberatos, and G. Liberatos are a constant presence at the Oasis Diner where they manage the operations of the restaurant and take an active role in ensuring that the restaurant is run in accordance with their procedures and policies. 48. Upon information and belief, at all times relevant, Defendants P. Liberatos, H. Liberatos, and G. Liberatos, have had power over payroll and personnel decisions at Oasis Diner, including the power to hire and fire employees, set their wages, retain time and/or wage records, and otherwise control the terms and conditions of their employment. 9 9 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 Plaintiffs’ Work for Defendants 49. Plaintiff Jose Salazar Ortiz was employed by Defendants as a dishwasher, porter, and delivery employee at Oasis Diner from in or around May 2015 through in or around December 2018 (the “Salazar Employment Period”). 50. Throughout the Salazar Employment Period, Plaintiff Salazar was typically scheduled to work six (6) days per week, with most Sundays off. Plaintiff Salazar generally worked from approximately 7:00 am to approximately 4:00 pm, and sometimes 5:00 pm, for a total of approximately fifty-four (54) hours per week, and sometimes more. In or around 2016, for a period of approximately three (3) weeks to one (1) month, Plaintiff Salazar was requested to work five (5) days per week, with the same schedule, from approximately 7:00 am to approximately 4:00 pm or 5:00 pm, for a total of approximately forty-five (45) hours per week, and sometimes more. 51. Plaintiff Salazar was rarely able to take breaks, and when he was able to take breaks, they typically lasted between five to ten (5-10) minutes. 52. For his work, from the beginning of his employment period to in or around 2017, Plaintiff Salazar was paid a fixed salary in the amount of three hundred and seventy-five dollars ($375.00) per week. From in or around 2017 to the end of his employment period, Plaintiff Salazar was paid a fixed salary in the amount of four hundred and twenty dollars ($420.00) per week, based on approximately seventy dollars ($70.00) per day. If Plaintiff Salazar was absent for a day, due to an illness or for another authorized absence from Defendants, Defendants reduced his payment accordingly, i.e. from four hundred and twenty dollars ($420.00) for six (6) days of work, to approximately three hundred and fifty dollars ($350.00) for five (5) days of work. 53. As such, throughout the Salazar Employment Period, Plaintiff Salazar was not paid 10 10 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 the legally-required minimum wages for all hours worked and was not paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek. 54. Throughout the Salazar Employment Period, Plaintiff Salazar received his weekly payments in cash without a pay stub or any other wage statement that provided details of the hours worked during the week or his hourly pay rate. 55. As a delivery employee, Plaintiff Salazar was required to use his own bicycle and pay out-of-pocket for the maintenance expenses, such as flat tires. At no time was Plaintiff Salazar reimbursed for any maintenance-related expenses by Defendants. 56. Plaintiff Florencio Rivera Rodriguez has been working with Defendants as a dishwasher, porter, and delivery employee at Oasis Diner from in or around September 2007 to the present (the “Rivera Employment Period”). 57. At the beginning of the Rivera Employment Period, from in or around 2007 to in or around 2012, Plaintiff Rivera was typically scheduled to work six (6) days per week, with the following hours: Sundays through Thursdays, from approximately 1:00 pm to approximately 11:00 pm, and Fridays and Saturdays, from approximately 1:00 pm to approximately 12:00 am, for a total of approximately sixty-two (62) hours per week. 58. Thereafter, from in or around 2012 to in or around 2018, Plaintiff Rivera was scheduled to worked six (6) days per week, with most Tuesdays off. Plaintiff Rivera usually worked with the following schedule: Sundays to Thursdays, from approximately 2:00 pm to approximately 11:00 pm, and Fridays and Saturdays, from approximately 2:00 pm to approximately 12:00 am, for a total of approximately fifty-six (56) hours per week. 59. For the last portion of his employment, from in or around the beginning of 2019 to 11 11 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 the present, Plaintiff Rivera has been scheduled to work six (6) days per week, with most Tuesdays off. Plaintiff Rivera typically works the following hours: Mondays, from approximately 7:00 am to approximately 3:00 pm; Wednesdays and Thursdays, from approximately 3:00 pm to approximately 11:00 pm; Fridays, from approximately 12:00 pm to approximately 8:00 pm; Saturdays, from approximately 3:00 pm to approximately 12:00 am, and Sundays, from approximately 12:00 pm to approximately 8:00 pm, for a total of approximately forty-nine (49) hours per week. 60. Plaintiff Rivera is rarely able to take breaks, and when he is able to take breaks, they typically last between five to ten (5-10) minutes. 61. For his work, from in or around 2011 to in or around 2014, Plaintiff Rivera was paid a fixed salary in the amount of three hundred dollars ($300.00) per week. From in or around 2014 to in or around 2016, Plaintiff Rivera was paid a fixed salary in the amount of three hundred and sixty dollars ($360.00) per week. From in or around 2016 to in or around 2018, Plaintiff Rivera was paid a fixed salary in the amount of three hundred and eighty dollars ($380.00) per week. If Plaintiff Rivera was absent for a day at work, his weekly rate payment was reduced accordingly. 62. At the beginning of 2019, Plaintiff Rivera was informed by Defendant P. Liberatos, that he will be paid at a rate of ten dollars ($10.00) per hour. Since that time, Plaintiff Rivera has been paid ten dollars ($10.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek. 63. As such, throughout the Rivera Employment Period, Plaintiff Rivera has not been paid the legally-required minimum wages for all hours worked and has not been paid overtime 12 12 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek. 64. Throughout his employment period at Oasis Diner, Plaintiff Rivera has been receiving his weekly wage payments in cash without a pay stub or any other wage statement that provides details of the hours worked during the week or his hourly pay rate. 65. As a delivery employee, Plaintiff Rivera is required to use his own bicycle and pay the maintenance expenses such as flat tires. At no time has Plaintiff Rivera been reimbursed for any maintenance-related expenses by Defendants. 66. Plaintiff Felix Ortega Pacheco has been working with Defendants as a dishwasher, porter, busser, and delivery employee at Oasis Diner from in or around 2007 to the present (the “Ortega Employment Period”). 67. For the relevant time period, from in or around 2013 to in or around 2018, Plaintiff Ortega was typically scheduled to work six (6) days per week, with most Wednesdays off. Plaintiff Ortega typically worked the following hours: Mondays, Tuesdays, Thursdays, and Fridays, from approximately 2:00 pm to approximately 11:00 pm; Saturdays, from approximately 6:00 am to approximately 4:00 pm; and Sundays from approximately 6:00 am to approximately 11:00 pm, for a total of approximately sixty-three (63) hours per week. 68. For the last portion of his employment period, from in or around the beginning of 2019 to the present, Plaintiff Ortega has been scheduled to work seven (7) days per week, with the following hours: Mondays, from approximately 3:00 pm to approximately 11:00 pm; Tuesdays, from approximately 2:30 pm to approximately 11:00 pm; Wednesdays, from approximately 7:00 am to approximately 3:00 pm; Thursdays, from approximately 7:00 am to approximately 3:00 pm; 13 13 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 Fridays, from approximately 7:00 am to approximately 3:00 pm; Saturdays from approximately 7:00 am to approximately 3:00 pm; and Sundays from approximately 7:00 am to approximately 11:00 pm, for a total of approximately sixty-four and one-half (64.5) hours per week. 69. Plaintiff Ortega is rarely able to take breaks, and when he is able to take breaks, they typically last between five to ten (5-10) minutes. 70. For his work, during the relevant time period, from in or around 2013 to in or around 2015, Plaintiff Ortega was paid a fixed salary in the amount of three hundred and sixty ($360.00) dollars per week. From in or around 2015 to in or around June 2018, Plaintiff Ortega was paid a fixed salary in the amount of four hundred and twenty dollars ($420.00) per week. For the last months of 2018, from in or around June 2018 to in or around December 2018, Plaintiff Ortega was paid a fixed salary in the amount of four hundred and forty dollars ($440.00) per week. 71. From in or around the beginning of 2019 to the present, Plaintiff Ortega was informed by Defendant P. Liberatos that he will be paid at a rate of ten dollars ($10.00) per hour. In reality, Plaintiff Ortega has been paid by a fixed rate per day or shift or work, in the amount of eighty dollars ($80.00) per day/shift. For the first six (6) days of the week, when he is performing a “single” shift each day, Plaintiff Ortega receives the amount of four hundred and eighty dollars ($480.00). For his work on Sundays, which is considered a “double shift”, Plaintiff Ortega receives the amount of one hundred and sixty dollars ($160.00) for that day of work, for a total of approximately six hundred and forty dollars ($640.00) per week. 72. As such, throughout the Ortega Employment Period, Plaintiff Ortega has not and is not been paid the legally-required minimum wages for all hours worked and has not been paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) 14 14 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 each workweek. 73. Throughout his employment period at Oasis Diner, Plaintiff Ortega has been receiving his weekly payments in cash without a pay stub or any other wage statement that provided details of the hours worked during the week or his hourly pay rate. 74. Plaintiff Gonzalo Martinez has been working with Defendants as a busser, and on an as-needed basis, as a dishwasher and delivery employee at Oasis Diner from in or around August 2017 to the present (the “Martinez Employment Period”). 75. Throughout Martinez employment period, Plaintiff Martinez has been scheduled to work five (5) days per week, with most Wednesdays and Thursdays off. Plaintiff Martinez generally works the following hours: Mondays, from approximately 6:00 am to approximately 4:00 pm; Tuesdays, from approximately 3:00 pm to approximately 11:00 pm; Fridays, from approximately 3:00 pm to approximately 12:00 am; Saturdays, from approximately 9:00 am to approximately 9:00 pm, but Plaintiff usually arrives between approximately 10:00 am to 11:00 am due to the fact that he is responsible to close the diner the previous day; and Sundays from approximately 6:00 am to approximately 4:00 pm, for a total of forty-seven (47) to forty-eight (48) hours per week. 76. Plaintiff Martinez is rarely able to take breaks during weekdays, and when he is able to take breaks, they typically last between five to ten (5-10) minutes. During Saturday shifts, when the diner has two (2) bussers working in the dining room, Plaintiff Martinez is sometimes able, with consent of the other busser, to take an uninterrupted thirty (30) minute break. 77. For his work, at the beginning of his employment period in or around 2017 for a period of approximately seven (7) months, Plaintiff Martinez was paid at a rate of six dollars 15 15 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 ($6.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek. From in or around 2018 to in or around 2019, Plaintiff Martinez was paid at a rate of seven dollars ($7.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek. From in or around the beginning of 2019 to the present, Plaintiff Martinez has been paid at a rate of eight dollars ($8.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek. 78. As such, throughout most of the Martinez Employment Period, Plaintiff Martinez has not been paid the legally-required minimum wages for all hours worked and has not been paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek. 79. Throughout his employment period at Oasis Diner, Plaintiff Martinez has been receiving his weekly payments in cash without a pay stub or any other wage statement that provided details of the hours worked during the week or his hourly pay rate. 80. Plaintiff Juan Campos Trejo has worked with Defendants as a dishwasher, porter, and delivery employee at Oasis Diner from in or around 2004 to in or around 2007, and for a second period from in or around 2014 to the present (the “Campos Employment Period”). 81. For the relevant time period, from in or around 2014 to in or around 2018, Plaintiff Campos was typically scheduled to work five (5) days per week, with most Mondays and Tuesdays off. Plaintiff Campos generally worked each day from approximately 2:00 pm to approximately 11:00 pm for a total of approximately forty-five (45) hours per week. For in or around the beginning of 2019 to the present, Plaintiff Campos has been scheduled to work four (4) days per week, with most Wednesdays, Thursdays, and Fridays off. Plaintiff Campos generally works 16 16 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 Mondays, Tuesdays, Saturdays and Sundays, from approximately 3:00 pm to approximately between 11:00 pm and 11:30 pm, for a total of approximately thirty-two (32) to thirty-four (34) hours per week. 82. Plaintiff Campos is rarely able to take breaks, and when he is able to take breaks, they typically last between five to ten (5-10) minutes. 83. For his work, during the relevant time period from in or around 2014 to in or around 2018, Plaintiff Campos was paid a fixed salary in the amount of three hundred and sixty dollars ($360.00) per week. From in or around the beginning of 2019 to the present, Plaintiff Campos has been paid a fixed salary in the amount of four hundred dollars ($400.00) per week. 84. As such, throughout most of the Campos Employment Period, Plaintiff Campos has not been paid the legally-required minimum wages for all hours worked and has not been paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek. 85. Throughout his employment period at Oasis Diner, Plaintiff Campos has been receiving his weekly payments in cash without a pay stub or any other wage statement that provided details of the hours worked during the week or his hourly pay rate. 86. Plaintiff Plutarco Navarrete Cabañas has been working with Defendants as a line cook and sometimes dishwasher at Oasis Diner from in or around October 2015 to the present (the “Navarrete Employment Period”). 87. At the beginning of Navarrete employment period, from in or around 2015 to in or around 2018, Plaintiff Navarrete was typically scheduled to work six (6) days per week, with most Tuesdays off. Plaintiff Navarrete generally worked the following hours: Mondays, from 17 17 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 approximately 5:00 am to approximately 1:00 pm; Wednesdays, from approximately 8:00 am to approximately 9:00 pm; Thursdays, from approximately 12:00 pm to approximately 9:00 pm; Fridays, from approximately 11:00 am to between approximately 9:00 pm to 10:00 pm; Saturdays, from approximately 9:00 am to approximately 9:00 pm; and Sundays from approximately 9:00 am to between approximately 7:00 pm to 8:00 pm, for a total of approximately sixty-two (62) to sixty- four (64) hours per week. 88. From the beginning of 2019 to the present, Plaintiff Navarrete has been scheduled to work six (6) days per week, with most Tuesdays off. Plaintiff Navarrete generally works the following hours: Mondays, from approximately 5:00 am to approximately 1:00 pm; Wednesdays, from approximately 8:00 am to approximately 2:00 pm; Thursdays, from approximately 12:00 pm to approximately 9:00 pm; Fridays, from approximately 11:00 am to between approximately 9:00 pm to 10:00 pm; Saturdays, from approximately 9:00 am to approximately 9:00 pm; and Sundays from approximately 9:00 am to between approximately 8:00 pm to 9:00 pm, for a total of approximately fifty-six (56) to fifty-eight (58) hours per week. 89. Plaintiff Navarrete is rarely able to take breaks, and when he is able to take breaks, they typically last between fifteen to twenty (15-20) minutes. 90. For his work, for the first six (6) months of his employment period, from in or around October 2015 to in or around April 2016, Plaintiff Navarrete was paid an hourly rate in the amount of twelve dollars ($12.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek. From in or around April 2016 to in or around 2018, Plaintiff Navarrete was paid an hourly rate in the amount of thirteen dollars ($13.00) per hour, for all hours worked, including those beyond forty (40) in a given workweek. 18 18 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 91. At the beginning of 2019, Defendant P. Liberatos informed Plaintiff Navarrete that he would increase his hourly rate to fifteen dollars ($15.00) for regular hours, and a rate of twenty dollars ($20.00) for the hours worked beyond forty (40) in a given work week. Despite the rates informed by Defendant P. Liberatos of how he would be paid during the current year, Plaintiff Navarrete cannot confirm these rates are actually paid except for the portion paid by check, which typically represents up to 40 hours each week. Even if Navarrete is paid $20 per hour for hours over 40 each week, that is still less than one and one-half (1.5) times his regular rate, which should be paid for such overtime hours. 92. As such, during a large portion of the Navarrete Employment Period, Plaintiff Navarrete was not paid the legally-required minimum wages for all hours worked and has not been paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek. 93. During the first six (6) months of his employment period, Plaintiff Navarrete received his wages entirely in cash without a pay stub or any other wage statement that provided details of the hours worked during the week or his hourly pay rate. From in or around April 2016 to the present, Plaintiff Navarrete has been receiving his weekly payments in a combination of cash and check with a pay stub that reflects only a portion of the amount of hours worked during the work week up to forty (40) forty hours, and which does not include the wages paid by cash. 94. Plaintiff Fotis Louzakos worked with Defendants as a baker and food prep at Oasis Diner from in or around March 2010 to in or around August 2013 (the “Louzakos Employment Period”). 95. Throughout his entire employment period, Plaintiff Louzakos was scheduled to 19 19 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 work six (6) days per week. Plaintiff Louzakos typically worked from approximately 6:00 am to between approximately 3:00 pm and 4:00 pm, for a total of approximately fifty-four (54) to sixty (60) hours per week. 96. For his work, at the beginning of his employment period, Plaintiff Louzakos was paid a fixed salary in the amount of four hundred and seventy-five dollars ($475.00) per week, for all hours worked including those beyond forty (40) in a given workweek. For the last year of his employment period, from in or around 2012 to in or around 2013, Plaintiff Louzakos received a fixed salary in the amount of five hundred dollars ($500.00) per week, for all hours worked including those beyond forty (40) in a given workweek. 97. Plaintiff Louzakos was rarely able to take breaks, and when he was able to take breaks, they typically lasted between five to ten (5-10) minutes. 98. As such, throughout the Louzakos Employment Period, Plaintiff Louzakos was not paid overtime premiums of one and one-half (1.5) times his regular hourly rate for hours over forty (40) each workweek. 99. Throughout his entire employment period at Oasis Diner, Plaintiff Louzakos received his weekly payments in cash without a pay stub or any other wage statement that provided details of the hours worked during the week or his hourly pay rate. 100. Plaintiffs Salazar, Rivera, Ortega and Campos, while working as delivery employees were also required to perform additional non-tip-generating tasks, such as dishwashing and cleaning the restaurant, for substantially more than twenty percent (20%) of their work time at the diner. Accordingly, they should have been compensated at the full minimum wage, rather than a “tipped” minimum wage, during weeks in which these non-tip-generating tasks exceeded 20 20 of 36 FILED: KINGS COUNTY CLERK 08/15/2019 06:59 PM INDEX NO. 513496/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/15/2019 more than twenty percent (20%) of their work hours. 101. As delivery employees, Plaintiffs Salazar, Rivera, Ortega and Campos were not always provided with the full gratuities left for them by customers on credit cards. Specifically, if a customer paid a gratuity on their credit card, Plaintiffs were required to request payment of the gratuity from the person working at the cash register, which was typically Defendant H. Liberatos, whom would typically pay Plaintiffs less than the full gratuity left by the customer and sometimes would not pay them any gratuity left by the customer. If the Plaintiffs were provided a gratuity from a customer in cash, they were able to retain the full gratuity paid to them. 102. As delivery employees, Plaintiffs Salazar, Rivera, Ortega and Campos were required to use their own bicycles to perform the deliveries and to pay out-of-pocket for all maintenance-related expenses, such as flat tires. At no time did Defendants reimburse Plaintiffs for their maintenance-related expenses for their bicycle, which is a necessary “tool of the trade” for Defendants’ delivery employees. 103. During their respective employment periods, although Plaintiffs have typically worked a spread of more than ten (10) hours per day or split shifts, they have not received spread- of-hours premiums equal to an additional hour at the applicable minimum wage for such days. 104. Throughout their respective employment periods, Plaintiffs have not been provided with wage notices at hiring, by February 1 of each year, or proper wage statements with their wage payments each week. Defendants’ Unlawful Corporate Pol