Preview
FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019
Michael J. DiMattia
Philip A. Goldstein
McGUIREWOODS LLP
1251 Avenue of theAmericas, 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
VINCENT SETTECASI and xxxxxxxx : Index No.: 154038/2018
xxxx, individually and on behalf of others :
similarly situated, : Motion Seq. No. 0001
:
Plaintiffs, .
- against - AFFIDAVIT OF WALTER
RAUSCHER IN SUPPORT OF
DEFENDANTS'
ARK RESTAURANTS CORP.; ARK BRYANT MOTION TO
PARK, LLC; ARK BRYANT PARK 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"). 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 02/26/2019 05:53 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019
2. I am submitting this Affidavit in support of the motion to dismiss the Complaint
by Defendants Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant Park Southwest LLC,
Michael Weinstein, and Robert J. Stewart (collectively, "Defendants").
3. Ark Restaurants Corp. is a New York based restaurant group that operates
distinctively designed restaurants across the country including Ark Bryant Park LLC d/b/a
Bryant Park Grill ("Bryant Park Grill"), and Ark Bryant Park Southwest LLC d/b/a Southwest
Porch, both located in New York City.
4. Michael Weinstein is Ark Restaurant Corporation's Chairman and CEO.
5. Robert J. Stewart was Ark Restaurant Corporation's Chief Financial Officer. Mr.
Stewart passed away in July 2018.
6. Ark's records show that Plaintiff xxxxxxxxxxxxx was hired as a temporary
employee to supplement Ark's regular service staff and that he worked as a member of Ark's
service staff at approximately twenty events, all at Bryant Park Grill, between May 2016 and
January 2017.
7. At allrelevant times, xxxx, like the rest of the service staff, was paid $28.00 or
$35.00 per hour for working catering events depending on the season ($28.00 from January 1 to
mid-November and $35.00 from mid-November to Deceñiber 31).
8. The Bryant Park Grill is open to the public for brunch, lunch and dinner and hosts
catering events including corporate and non-profit functions as well as private events such as
birthday parties, anniversary celebrations, and weddings and bar/bat mitzvahs.
9. Ark enters into a written contract with its customers for catered events. The price
of catered events at Ark includes among other things a 23% "administrative charge". In each
contract, Ark expressly notifies the customer that the administrative charge is not a gratuity, that
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FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019
itwill not be distributed to the staff, and will be retained by the restaurant.
10. 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.
11. Copies of the Catering Sales Contracts for each event worked by xxxx are
attached as Exhibit A.
12. In November 2012, Ark catered an annual gala fund raising event for The Ideal
School of Manhattan ("Ideal School"), a non-profit organization. The event was originally
scheduled for Friday, November 2, 2012 at Gotham Hall, a non-Ark property. However, due to
Hurricane Sandy and related weather and damage issues, the Ideal School event was rescheduled
to November 26, 2012, still at Gotham Hall.
13. Ark supports certain charitable causes and donated the food and beverages for the
Ideal School event and did not assess any administrative fee for itshandling of this 300 person
dinner event. Instead, the Ideal School was charged only for the cost of staffing the event.
14. Ark's records show that Vincent Settecasi was assigned by Top Shelf Staffing, a
third-party staffing agency, to work at a single off-site event, specifically the Ideal School Gala.
Ark does not have compensation records for Settecasi because he was not an Ark employee.
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FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019
WALTER RAU CHER
Sworn to before me this
2 , 2019
February
Notary Pu lic
113294515 I
MARILYNG)LEAD- GUY
NotaryPublic,Stateof NewYork
No.01G15029488
Quantledin QueensCounty
TerrnExpiresJune20,20
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Preview
FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019 Michael J. DiMattia Philip A. Goldstein McGUIREWOODS LLP 1251 Avenue of theAmericas, 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 VINCENT SETTECASI and xxxxxxxx : Index No.: 154038/2018 xxxx, individually and on behalf of others : similarly situated, : Motion Seq. No. 0001 : Plaintiffs, . - against - AFFIDAVIT OF WALTER RAUSCHER IN SUPPORT OF DEFENDANTS' ARK RESTAURANTS CORP.; ARK BRYANT MOTION TO PARK, LLC; ARK BRYANT PARK 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"). 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 4 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019 2. I am submitting this Affidavit in support of the motion to dismiss the Complaint by Defendants Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant Park Southwest LLC, Michael Weinstein, and Robert J. Stewart (collectively, "Defendants"). 3. Ark Restaurants Corp. is a New York based restaurant group that operates distinctively designed restaurants across the country including Ark Bryant Park LLC d/b/a Bryant Park Grill ("Bryant Park Grill"), and Ark Bryant Park Southwest LLC d/b/a Southwest Porch, both located in New York City. 4. Michael Weinstein is Ark Restaurant Corporation's Chairman and CEO. 5. Robert J. Stewart was Ark Restaurant Corporation's Chief Financial Officer. Mr. Stewart passed away in July 2018. 6. Ark's records show that Plaintiff xxxxxxxxxxxxx was hired as a temporary employee to supplement Ark's regular service staff and that he worked as a member of Ark's service staff at approximately twenty events, all at Bryant Park Grill, between May 2016 and January 2017. 7. At allrelevant times, xxxx, like the rest of the service staff, was paid $28.00 or $35.00 per hour for working catering events depending on the season ($28.00 from January 1 to mid-November and $35.00 from mid-November to Deceñiber 31). 8. The Bryant Park Grill is open to the public for brunch, lunch and dinner and hosts catering events including corporate and non-profit functions as well as private events such as birthday parties, anniversary celebrations, and weddings and bar/bat mitzvahs. 9. Ark enters into a written contract with its customers for catered events. The price of catered events at Ark includes among other things a 23% "administrative charge". In each contract, Ark expressly notifies the customer that the administrative charge is not a gratuity, that 2 2 of 4 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019 itwill not be distributed to the staff, and will be retained by the restaurant. 10. 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. 11. Copies of the Catering Sales Contracts for each event worked by xxxx are attached as Exhibit A. 12. In November 2012, Ark catered an annual gala fund raising event for The Ideal School of Manhattan ("Ideal School"), a non-profit organization. The event was originally scheduled for Friday, November 2, 2012 at Gotham Hall, a non-Ark property. However, due to Hurricane Sandy and related weather and damage issues, the Ideal School event was rescheduled to November 26, 2012, still at Gotham Hall. 13. Ark supports certain charitable causes and donated the food and beverages for the Ideal School event and did not assess any administrative fee for itshandling of this 300 person dinner event. Instead, the Ideal School was charged only for the cost of staffing the event. 14. Ark's records show that Vincent Settecasi was assigned by Top Shelf Staffing, a third-party staffing agency, to work at a single off-site event, specifically the Ideal School Gala. Ark does not have compensation records for Settecasi because he was not an Ark employee. 3 3 of 4 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/26/2019 WALTER RAU CHER Sworn to before me this 2 , 2019 February Notary Pu lic 113294515 I MARILYNG)LEAD- GUY NotaryPublic,Stateof NewYork No.01G15029488 Quantledin QueensCounty TerrnExpiresJune20,20 4 4 of 4