On May 01, 2018 a
Motion-Secondary
was filed
involving a dispute between
Xxxxxxxx Xxxx,
Vincent Settecasi,
and
Ark Bryant Park, Llc,
Ark Bryant Park Southwest, Llc,
Ark Restaurants Corp.,
Michael Weinstein,
Robert J Stewart,
for Other Matters - Contract - Other
in the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 05/01/2019 03:31 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 05/01/2019
Michael J. DiMattia
Philip A. Goldstein
McGUIREWOODS LLP
1251 Avenue of the Americas, 20th Floor
New York, NY 10020
(212) 548-2100
Attorneys for Defendants
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------- X
V1NCENT SETTECASI and xxxxxxxx Index No.: 154038/2018
xxxx, individually and on behalf of others
similarly situated, : Motion Seq. No. 0001
Plaintiffs,
- against - SUPLEMENTAL AFFIDAVIT OF
WALTER RAUSCHER IN
DEFENDANTS'
ARK RESTAURANTS CORP.; ARK BRYANT SUPPORT OF
PARK, LLC; ARK BRYANT PARK MOTION TO DISMISS
SOUTHWEST, LLC; MICHAEL WEINSTEIN;
ROBERT J. STEWART; and any other related
entities,
:
:
Defendants. :
------------------------------------------------------------- X
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
I, WALTER RAUSCHER, being duly sworn, deposes and says:
1. My name is Walter Rauscher. I am the Vice President of Sales and Catering for
Defendant Ark Restaurants Corporation ("Ark") and have held that position since January 1,
2000. As part of my job responsibilities, I supervise Ark's catering team for its various New
York City restaurants, and oversee Ark's catering operations.
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FILED: NEW YORK COUNTY CLERK 05/01/2019 03:31 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 05/01/2019
2. I am submitting this supplemental Affidavit in support of the motion to dismiss
the Complaint filed by Defendants Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant
Park Southwest LLC, Michael Weinstein, and Robert J. Stewart (collectively, "Defendants").
3. Every Ark banquet customer signs a contract well in advance of the event that
contains a clear explanation that the administrative fee is not a gratuity, will be retained by Ark,
and that it will not be given to the banquet staff. The banquet customer is further notified that
the banquet staff is paid a premium wage (in fact, Ark pays its banquet staff employees $28.00
per hour for events from to early November and $35.00 per hour for events from mid-
January
November to December 31) and knows that the banquet staff will not receive the mandatory
charge. This explanation is prominently displayed on the first page of the banquet contract.
4. Each Catering Sales Contract provides:
This administrative charge is not a gratuity and will not be given to waitstaff. The
administrative charge will be retained entirely by the restaurant as part of the
contract price that is used to cover costs and overhead relating to the catered
event. The banquet wait staff is paid a premium banquet hourly rate well in
excess of the statutory minimum wage rates and is aware that this administrative
charge is not intended to be a gratuity and will not be distributed to them.
5. Copies of the Catering Sales Contracts for each event worked by xxxx are
Defendants'
attached to my first affidavit in support of motion to dismiss as Exhibit A. This
form of Catering Sales Contract has been used by Ark since 2012.
Plaintiffs' receipts"
6. It is my understanding that allege that Ark's "house and
Special Events Recap forms are provided to Ark's banquet customers. This is not true. Both of
these documents are internal Ark records that are not given to the customers. Indeed, even a
casual review of these documents shows that they are internal documents that are not intended
and do not in fact go to the customer. Rather, Ark maintains these internal records for
accounting and quality control purposes.
2
2 of 3
FILED: NEW YORK COUNTY CLERK 05/01/2019 03:31 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 05/01/2019
receipt"
7. For example, the "house shows that a catered event was entered in the
receipt"
Ark restaurant's accounting records. The "house lists the items billed and shows that the
bill was paid in full. As can be readily seen on these sample "house receipts", none of these
documents are signed by the client and none of them are given to the client. The "house
receipts"
also does not state a banquet customer's name as would be found on a traditional credit
card receipt given to a customer paying by credit card.
8. The Special Events Recap form includes additional information for Ark's banquet
management including the event name, the time and date of the event, number of guests, contract
number, and start and end time of the event. It also provides an area for Ark to note whether the
customer made any special requests or made any comments about the event. As such, it is clear
that this document is not given to the Ark customer, but is created as an operational tool for the
Ark management team.
9. I have been advised that Plaintiffs may be arguing that Plaintiff Vincent Settecasi
worked at more than one event for Ark. Contrary to this vague allegation, Ark records show that
Settecasi worked a single event in November 2012 and that because it was a charitable event
supported by Ark, no administrative fee was charged.
WALTER RAUSCHER
Sworn to before me this
$d/ R 2019
Notary Public
"f
SONAL SHAH
NOTARY PUBLIC-STATE OF NEW YORK
No. 02SH6306592
Qualified In Westchester C unty
My Commission Expires ka -
3
3 of 3
Document Filed Date
May 01, 2019
Case Filing Date
May 01, 2018
Category
Other Matters - Contract - Other
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FILED: NEW YORK COUNTY CLERK 05/01/2019 03:31 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 05/01/2019 Michael J. DiMattia Philip A. Goldstein McGUIREWOODS LLP 1251 Avenue of the Americas, 20th Floor New York, NY 10020 (212) 548-2100 Attorneys for Defendants SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------- X V1NCENT SETTECASI and xxxxxxxx Index No.: 154038/2018 xxxx, individually and on behalf of others similarly situated, : Motion Seq. No. 0001 Plaintiffs, - against - SUPLEMENTAL AFFIDAVIT OF WALTER RAUSCHER IN DEFENDANTS' ARK RESTAURANTS CORP.; ARK BRYANT SUPPORT OF PARK, LLC; ARK BRYANT PARK MOTION TO DISMISS SOUTHWEST, LLC; MICHAEL WEINSTEIN; ROBERT J. STEWART; and any other related entities, : : Defendants. : ------------------------------------------------------------- X STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) I, WALTER RAUSCHER, being duly sworn, deposes and says: 1. My name is Walter Rauscher. I am the Vice President of Sales and Catering for Defendant Ark Restaurants Corporation ("Ark") and have held that position since January 1, 2000. As part of my job responsibilities, I supervise Ark's catering team for its various New York City restaurants, and oversee Ark's catering operations. 1 1 of 3 FILED: NEW YORK COUNTY CLERK 05/01/2019 03:31 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 05/01/2019 2. I am submitting this supplemental Affidavit in support of the motion to dismiss the Complaint filed by Defendants Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant Park Southwest LLC, Michael Weinstein, and Robert J. Stewart (collectively, "Defendants"). 3. Every Ark banquet customer signs a contract well in advance of the event that contains a clear explanation that the administrative fee is not a gratuity, will be retained by Ark, and that it will not be given to the banquet staff. The banquet customer is further notified that the banquet staff is paid a premium wage (in fact, Ark pays its banquet staff employees $28.00 per hour for events from to early November and $35.00 per hour for events from mid- January November to December 31) and knows that the banquet staff will not receive the mandatory charge. This explanation is prominently displayed on the first page of the banquet contract. 4. Each Catering Sales Contract provides: This administrative charge is not a gratuity and will not be given to waitstaff. The administrative charge will be retained entirely by the restaurant as part of the contract price that is used to cover costs and overhead relating to the catered event. The banquet wait staff is paid a premium banquet hourly rate well in excess of the statutory minimum wage rates and is aware that this administrative charge is not intended to be a gratuity and will not be distributed to them. 5. Copies of the Catering Sales Contracts for each event worked by xxxx are Defendants' attached to my first affidavit in support of motion to dismiss as Exhibit A. This form of Catering Sales Contract has been used by Ark since 2012. Plaintiffs' receipts" 6. It is my understanding that allege that Ark's "house and Special Events Recap forms are provided to Ark's banquet customers. This is not true. Both of these documents are internal Ark records that are not given to the customers. Indeed, even a casual review of these documents shows that they are internal documents that are not intended and do not in fact go to the customer. Rather, Ark maintains these internal records for accounting and quality control purposes. 2 2 of 3 FILED: NEW YORK COUNTY CLERK 05/01/2019 03:31 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 05/01/2019 receipt" 7. For example, the "house shows that a catered event was entered in the receipt" Ark restaurant's accounting records. The "house lists the items billed and shows that the bill was paid in full. As can be readily seen on these sample "house receipts", none of these documents are signed by the client and none of them are given to the client. The "house receipts" also does not state a banquet customer's name as would be found on a traditional credit card receipt given to a customer paying by credit card. 8. The Special Events Recap form includes additional information for Ark's banquet management including the event name, the time and date of the event, number of guests, contract number, and start and end time of the event. It also provides an area for Ark to note whether the customer made any special requests or made any comments about the event. As such, it is clear that this document is not given to the Ark customer, but is created as an operational tool for the Ark management team. 9. I have been advised that Plaintiffs may be arguing that Plaintiff Vincent Settecasi worked at more than one event for Ark. Contrary to this vague allegation, Ark records show that Settecasi worked a single event in November 2012 and that because it was a charitable event supported by Ark, no administrative fee was charged. WALTER RAUSCHER Sworn to before me this $d/ R 2019 Notary Public "f SONAL SHAH NOTARY PUBLIC-STATE OF NEW YORK No. 02SH6306592 Qualified In Westchester C unty My Commission Expires ka - 3 3 of 3