Preview
INDEX NO. 154520/2013
FILED: NEW YORK COUNTY CLERK 06/24/2013
NYSCEF DOC. NO. 7 RECEIVED NYSCEF 06/24/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-oe-------------------- awe ee eee
ee ee
LISA MARIE PALMIERI, Individually and on
behalf of a class of similarly situated employees, Index No. 154520-2013
Plaintiffs,
-against-
GREAT PERFORMANCES/ARTISTS AS
WAITRESSES, INC. and LIZBETH NEUMARK,
Defendants.
we eee eee eee eee ee eee ee ee eee eee eee
DEFENDANTS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION TO DISMISS
KANE KESSLER, P.C.
1350 Avenue of the Americas
New York, New York 10019
(212) 541-6222
TABLE OF CONTENTS
Defendants’ Memorandum of Law in Support of Motion to Dismiss
Table of Authorities
Preliminary Statement ..
Statement of Facts and Procedural History
Argument
I Standard of Review for Motions to Dismiss under CPLR 3211
I. The Complaint is Dismissible as There is No “Service Charge”
iil. There is No Basis for a Claim Against Corporate Officer Lizbeth Neumark ...5
Conclusion
TABLE OF AUTHORITIES
Page(s)
CASES
Andux vy, Woodbury Auto Park, Inc.,
30 A.D. 3d 362, 816 N.Y.S.2 d 181 (2d Dept. 2006)
Bello v. Cablevision Sys.Corp.,
185 A.D.2d 262, 587 N.Y.S.2d 1 (2d Dept. 1992)
Copantitla v. Fiskardo Estiatorio, Inc.,
788 F. Supp. 2d 253 (S.D.N.Y. 2011)
Knickerbocker Field Club v. Site Selection Board
41 A.D. 2d 539, 339 N.Y.S. 2d 485 (2d Dept. 1973)
Krebs v. Canyon Club, Inc.,
22 Misc. 3d 1125(A), 880 N.Y.S. 2d 873, 2009 N.Y. Misc. LEXIS 340 *8
(N.Y.Sup.2009)
Martin v. Restaurant Assoc. Events Corp.,
35 Misc. 3d 215, 937 N.Y.S.2d 556, 2012 N.Y. Misc. LEXIS 230 (Sup.Ct. 2009),
aff'd in part, 2013 N.Y. App.Div. LEXIS 3228 (2d Dept. 2013)
Renzler v. D.F. White,
267 A.D.2d 443, 444, 700 N.Y.S.2d 487 (2d Dept. 1999)
Samiento v. World Yacht, Inc.,
10 N.Y. 3d 70, 854 N.Y.S. 2d 83 (2008) 3,4
Saratoga Harness Racing Ass’n. v. Moss,
26 A.D. 2d 486, 275 N.Y.S. 2d 888 (3d Dept. 1966), aff'd., 20 N.Y. 2d 733 (1967)
Selinger v. GF Health Prods.,
23 Misc.3d 1113 (A); 885 N.Y.S.2d 713 (Sup.Ct. 2009)
Spicer v. Pier Sixty LLC,
2010 U.S. Dist. LEXIS 76782 (S.D.N.Y. July 27, 2010)
Watterson v. Page,
987 F. 2d 1 (1 Cir. 1993)
STATUTES
CPLR 3211 (a) (1) and (7)
Section 196-d of New York Labor Law 2,5
-1-
PRELIMINARY STATEMENT
Defendants GREAT PERFORMANCES/ARTISTS AS WAITRESSES, INC.
(defendant “Great Performances”) and LIZBETH NEUMARK (jointly “defendants”), by their
attorneys Kane Kessler, P.C., respectfully submit this memorandum in support of their motion to
dismiss pursuant to New York Civil Practice Law and Rules (“CPLR”) 3211(a) (1) and (7) to
dismiss the Complaint in its entirety on the grounds that it fails to state a cause of action as to
defendants.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant Great Performances is in the business of providing staff for catered events.
(Neumark Aff. § 3). Great Performances enters into contracts with clients to provide staff and
food for catered events. (Neumark Aff. §4 ). No agreements and proposals attached thereto
entered into within the prior six (6) years contain any provision or reference to a “Service
Charge.” (Neumark Aff. §5 , Ex.A ). The agreements specifically provide as follows with
respect to gratuities: “Great Performances’ personnel do not accept any gratuities.” (Neumark
Aff. §6, Ex.A). Great Performances also provides its clients with a bill of costs. (Neumark Aff.
4,7, Ex. A). The bill of costs do not include a “Service Charge.” (Neumark Aff. 7, Ex.A ).
Plaintiff filed a Complaint in the Supreme Court of the State of New York Index No.
154520/2013 (“Complaint”). The Complaint alleges that the defendants charge clients a “Service
Charge” which purports to be a gratuity and unlawfully retain the charges in violation of Section
196-d of the New York Labor Law. (Complaint §f 12, 13,16, 17). The Complaint also
individually names Lizbeth Neumark as a Chief Executive Officer (Complaint {[ 6).
-2-
ARGUMENT
POINT I
STANDARD OF REVIEW FOR MOTIONS TO DISMISS UNDER CPLR 3211
The Court may consider affidavits and other evidence contained in the pleadings in
resolving a 3211(a) motion. Saratoga Harness Racing Ass’n. v. Moss, 26 A.D. 2d 486, 275
N.Y.S. 2d 888 (3d Dept. 1966), aff'd., 20 N.Y. 2d 733 (1967). Evidence outside the pleadings
may be considered, converting the motion to one for all or partial summary judgment.
Knickerbocker Field Club v. Site Selection Board, 41 A.D. 2d 539, 339 N.Y.S. 2d 485 (2d Dept.
1973). However, although documents that are not incorporated in the pleadings cannot usually
be considered in a Rule 3211 motion without converting the motion to a summary judgment
motion, if the parties do not dispute the authenticity of the documents or the documents are
central to plaintiff’s claim, the Court may treat them as part of the pleadings and dispose of the
matter under Rule 3211. Bello v. Cablevision Sys.Corp., 185 A.D.2d 262, 587 N.Y.S.2d 1 (2d
Dept. 1992); Watterson v. Page, 987 F. 2d 1 (1" Cir. 1993).
POINT U
THE COMPLAINT IS DISMISSABLE AS THERE IS NO “SERVICE CHARGE”
New York Labor Law Section 196-d provides that “no employer...shall demand or
accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any
part ofa gratuity or of any charge purported to be a gratuity for any employee.” In Samiento v.
Wo orld Yacht, Inc., 10 N.Y. 3d 70, 854 N.Y.S. 2d 83 (2008), the Court of Appeals held that the
statutory language of Labor Law Section 196-d can include mandatory charges when it is shown
that employers represented or allowed their customers to believe that the charges were in fact
gratuities for their employees. Id. at 994-6. Under the World Yacht standard whether a
“mandatory charge or fee is purported to be a gratuity” is “weighed against the expectation of a
-3-
reasonable customer.” Id.; Krebs vy. Canyon Club, Inc., 22 Misc.3d 1125[A], 880 N.Y.S. 2d 873,
2009 Misc.LEXIS 340 *8 (N.Y.Sup.2009).
In the instant case, no contract, proposal or bill of cost or any other representation from
defendants for the preceding six (6) years contains a “Service Charge” that may be construed as a
gratuity. (Neumark Aff. § 5,7, Ex. A). The Agreements specifically state that “Great
Performances’ personnel do not accept any gratuities.” (Neumark Aff.§6 , Ex. A). In light of the
clear language of the Agreements, proposals and bills of costs it is patently unreasonable that a
lient would infer that there is a “Service Charge” purporting to be a gratuity that is retained by
defendants when no “Service Charge” at all is added to the customer’s bill.
The facts in this case are clearly distinguishable from cases finding a potential violation
of Section 196-d. In Martin v. Restaurant Assoc. Events Corp., 35 Misc. 3d 215, 937 N.Y.S.2d
556, 2012 N.Y. Misc. LEXIS 230 (Sup.Ct. 2009) cited in the Complaint, aff'd in part, 2013 N.Y.
App.Div. LEXIS 3228 (2d Dept. 2013), defendants created and imposed a “service charge”
which was specified on its contracts. Id. at *23. Similarly, in Spicer v. Pier Sixty LLC, 2010
U.S. Dist. LEXIS 76782 (S.D.N.Y. July 27, 2010), the contracts at issue referred to a “service
charge.” Id. at *19, 21. In Krebs v. Canyon Club, Inc., 22 Misc.3d 1125(A), 880 N.Y.S. 2d 873,
2009 N.Y. Misc. LEXIS 340 (N.Y.Sup.2009), the Club imposed a “surcharge.” Id. at *5. In
Copantitla_v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253 (S.D.N.Y. 2011), defendant
described the charges as “Service Charge” or “gratuity.” Id. at 272. In each of the above-cited
cases, as in Samiento v. World Yacht, there was a service charge or a surcharge added which
allegedly purported to be a gratuity. Defendants plainly have no such charge in their
Agreements.
Accordingly, the Complaint states no cause of action under Section 196-d of the Labor
Law and should be dismissed in its entirety.
-4-
POINT UI
THERE IS NO BASIS FOR A CLAIM AGAINST
CORPORATE OFFICER LIZBETH NEUMARK
To the extent that plaintiff attempts to state a cause of action for individual civil liability
against the Chief Executive Officer of Great Performances under Section 196-d of the Labor
Law, that cause of action must be dismissed. There is no basis for asserting claims against a
corporate officer or director for a corporation’s alleged violations under Article 6 of the Labor
Laws. New York courts have held that “The Legislature clearly intended that corporate officers
not be subjected to civil liability under that article of the Labor Law.” Renzler v. D.F. White, 267
A.D.2d 443, 444, 700 N.Y.S.2d 487 (2d Dept. 1999); See Andux v. Woodbury Auto Park, Inc.,
30 A.D. 3d 362, 816 N.Y.S.2d 181 (2d Dept. 2006); Selinger v. GF Health Prods., 23 Mise.3d
1113 (A); 885 N.Y.S.2d 713 (Sup.Ct. 2009). Accordingly, any cause of action for individual
civil liability against Ms. Neumark should be dismissed, and her name removed from the
caption.
CONCLUSION
For all of the foregoing reasons, defendants respectfully request an order dismissing the
Complaint in part on the grounds of failure to state a cause of action.
Dated: New York, N.Y. KANE KESSLER, P.C.
June 24, 2013 Attorneys for Defendants GREAT
PERFORMANCES/ARTISTS AS
WAITRESSES, INC. and
LIZBETH NEUMARK
By’ 4 ty purr—
Lois M. Traub
1350 Avenue of the Americas
New York, N.Y. 10019
(212) 519-5120
-5-
To Russell S. Moriarty, Esq.
Levine & Blit, PLLC
Attorneys for Plaintiff
350 Fifth Avenue, Suite 3601
New York, New York 10118
(212) 967-3000
-6-
AFFIDAVIT OF SERVICE BY FEDERAL EXPRESS MAIL
STATE OF NEW YORK )
COUNTY OF NEW YORK. )ss.:
I, Doris E. Guntner, being duly sworn, say:
Tam not a party to the within action, am over 18 years of age, and reside in
Freeport, New York.
On June 24, 2013, I served the within:
DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
by delivering a true copy thereof, enclosed in a post-paid wrapper, in an official depository under
the exclusive care and custody of Federal Express Mail within New York State, addressed to the
following:
To: Russell S. Moriarty, Esq.
Levine & Blit, PLLC
350 Fifth Avenue, Suite 3601
New York, New York 10118
De OC Ga
Doris E. Guntner
Sworn to before me this
24" day of June, 2013
GARY OSTROFF
Notary Public, State of New York
No. 020855073607
Qualified in Nassau C 01
Commission Expires Feb, 24, SB
-7-
Preview
INDEX NO. 154520/2013 FILED: NEW YORK COUNTY CLERK 06/24/2013 NYSCEF DOC. NO. 7 RECEIVED NYSCEF 06/24/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -oe-------------------- awe ee eee ee ee LISA MARIE PALMIERI, Individually and on behalf of a class of similarly situated employees, Index No. 154520-2013 Plaintiffs, -against- GREAT PERFORMANCES/ARTISTS AS WAITRESSES, INC. and LIZBETH NEUMARK, Defendants. we eee eee eee eee ee eee ee ee eee eee eee DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS KANE KESSLER, P.C. 1350 Avenue of the Americas New York, New York 10019 (212) 541-6222 TABLE OF CONTENTS Defendants’ Memorandum of Law in Support of Motion to Dismiss Table of Authorities Preliminary Statement .. Statement of Facts and Procedural History Argument I Standard of Review for Motions to Dismiss under CPLR 3211 I. The Complaint is Dismissible as There is No “Service Charge” iil. There is No Basis for a Claim Against Corporate Officer Lizbeth Neumark ...5 Conclusion TABLE OF AUTHORITIES Page(s) CASES Andux vy, Woodbury Auto Park, Inc., 30 A.D. 3d 362, 816 N.Y.S.2 d 181 (2d Dept. 2006) Bello v. Cablevision Sys.Corp., 185 A.D.2d 262, 587 N.Y.S.2d 1 (2d Dept. 1992) Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253 (S.D.N.Y. 2011) Knickerbocker Field Club v. Site Selection Board 41 A.D. 2d 539, 339 N.Y.S. 2d 485 (2d Dept. 1973) Krebs v. Canyon Club, Inc., 22 Misc. 3d 1125(A), 880 N.Y.S. 2d 873, 2009 N.Y. Misc. LEXIS 340 *8 (N.Y.Sup.2009) Martin v. Restaurant Assoc. Events Corp., 35 Misc. 3d 215, 937 N.Y.S.2d 556, 2012 N.Y. Misc. LEXIS 230 (Sup.Ct. 2009), aff'd in part, 2013 N.Y. App.Div. LEXIS 3228 (2d Dept. 2013) Renzler v. D.F. White, 267 A.D.2d 443, 444, 700 N.Y.S.2d 487 (2d Dept. 1999) Samiento v. World Yacht, Inc., 10 N.Y. 3d 70, 854 N.Y.S. 2d 83 (2008) 3,4 Saratoga Harness Racing Ass’n. v. Moss, 26 A.D. 2d 486, 275 N.Y.S. 2d 888 (3d Dept. 1966), aff'd., 20 N.Y. 2d 733 (1967) Selinger v. GF Health Prods., 23 Misc.3d 1113 (A); 885 N.Y.S.2d 713 (Sup.Ct. 2009) Spicer v. Pier Sixty LLC, 2010 U.S. Dist. LEXIS 76782 (S.D.N.Y. July 27, 2010) Watterson v. Page, 987 F. 2d 1 (1 Cir. 1993) STATUTES CPLR 3211 (a) (1) and (7) Section 196-d of New York Labor Law 2,5 -1- PRELIMINARY STATEMENT Defendants GREAT PERFORMANCES/ARTISTS AS WAITRESSES, INC. (defendant “Great Performances”) and LIZBETH NEUMARK (jointly “defendants”), by their attorneys Kane Kessler, P.C., respectfully submit this memorandum in support of their motion to dismiss pursuant to New York Civil Practice Law and Rules (“CPLR”) 3211(a) (1) and (7) to dismiss the Complaint in its entirety on the grounds that it fails to state a cause of action as to defendants. STATEMENT OF FACTS AND PROCEDURAL HISTORY Defendant Great Performances is in the business of providing staff for catered events. (Neumark Aff. § 3). Great Performances enters into contracts with clients to provide staff and food for catered events. (Neumark Aff. §4 ). No agreements and proposals attached thereto entered into within the prior six (6) years contain any provision or reference to a “Service Charge.” (Neumark Aff. §5 , Ex.A ). The agreements specifically provide as follows with respect to gratuities: “Great Performances’ personnel do not accept any gratuities.” (Neumark Aff. §6, Ex.A). Great Performances also provides its clients with a bill of costs. (Neumark Aff. 4,7, Ex. A). The bill of costs do not include a “Service Charge.” (Neumark Aff. 7, Ex.A ). Plaintiff filed a Complaint in the Supreme Court of the State of New York Index No. 154520/2013 (“Complaint”). The Complaint alleges that the defendants charge clients a “Service Charge” which purports to be a gratuity and unlawfully retain the charges in violation of Section 196-d of the New York Labor Law. (Complaint §f 12, 13,16, 17). The Complaint also individually names Lizbeth Neumark as a Chief Executive Officer (Complaint {[ 6). -2- ARGUMENT POINT I STANDARD OF REVIEW FOR MOTIONS TO DISMISS UNDER CPLR 3211 The Court may consider affidavits and other evidence contained in the pleadings in resolving a 3211(a) motion. Saratoga Harness Racing Ass’n. v. Moss, 26 A.D. 2d 486, 275 N.Y.S. 2d 888 (3d Dept. 1966), aff'd., 20 N.Y. 2d 733 (1967). Evidence outside the pleadings may be considered, converting the motion to one for all or partial summary judgment. Knickerbocker Field Club v. Site Selection Board, 41 A.D. 2d 539, 339 N.Y.S. 2d 485 (2d Dept. 1973). However, although documents that are not incorporated in the pleadings cannot usually be considered in a Rule 3211 motion without converting the motion to a summary judgment motion, if the parties do not dispute the authenticity of the documents or the documents are central to plaintiff’s claim, the Court may treat them as part of the pleadings and dispose of the matter under Rule 3211. Bello v. Cablevision Sys.Corp., 185 A.D.2d 262, 587 N.Y.S.2d 1 (2d Dept. 1992); Watterson v. Page, 987 F. 2d 1 (1" Cir. 1993). POINT U THE COMPLAINT IS DISMISSABLE AS THERE IS NO “SERVICE CHARGE” New York Labor Law Section 196-d provides that “no employer...shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part ofa gratuity or of any charge purported to be a gratuity for any employee.” In Samiento v. Wo orld Yacht, Inc., 10 N.Y. 3d 70, 854 N.Y.S. 2d 83 (2008), the Court of Appeals held that the statutory language of Labor Law Section 196-d can include mandatory charges when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees. Id. at 994-6. Under the World Yacht standard whether a “mandatory charge or fee is purported to be a gratuity” is “weighed against the expectation of a -3- reasonable customer.” Id.; Krebs vy. Canyon Club, Inc., 22 Misc.3d 1125[A], 880 N.Y.S. 2d 873, 2009 Misc.LEXIS 340 *8 (N.Y.Sup.2009). In the instant case, no contract, proposal or bill of cost or any other representation from defendants for the preceding six (6) years contains a “Service Charge” that may be construed as a gratuity. (Neumark Aff. § 5,7, Ex. A). The Agreements specifically state that “Great Performances’ personnel do not accept any gratuities.” (Neumark Aff.§6 , Ex. A). In light of the clear language of the Agreements, proposals and bills of costs it is patently unreasonable that a lient would infer that there is a “Service Charge” purporting to be a gratuity that is retained by defendants when no “Service Charge” at all is added to the customer’s bill. The facts in this case are clearly distinguishable from cases finding a potential violation of Section 196-d. In Martin v. Restaurant Assoc. Events Corp., 35 Misc. 3d 215, 937 N.Y.S.2d 556, 2012 N.Y. Misc. LEXIS 230 (Sup.Ct. 2009) cited in the Complaint, aff'd in part, 2013 N.Y. App.Div. LEXIS 3228 (2d Dept. 2013), defendants created and imposed a “service charge” which was specified on its contracts. Id. at *23. Similarly, in Spicer v. Pier Sixty LLC, 2010 U.S. Dist. LEXIS 76782 (S.D.N.Y. July 27, 2010), the contracts at issue referred to a “service charge.” Id. at *19, 21. In Krebs v. Canyon Club, Inc., 22 Misc.3d 1125(A), 880 N.Y.S. 2d 873, 2009 N.Y. Misc. LEXIS 340 (N.Y.Sup.2009), the Club imposed a “surcharge.” Id. at *5. In Copantitla_v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253 (S.D.N.Y. 2011), defendant described the charges as “Service Charge” or “gratuity.” Id. at 272. In each of the above-cited cases, as in Samiento v. World Yacht, there was a service charge or a surcharge added which allegedly purported to be a gratuity. Defendants plainly have no such charge in their Agreements. Accordingly, the Complaint states no cause of action under Section 196-d of the Labor Law and should be dismissed in its entirety. -4- POINT UI THERE IS NO BASIS FOR A CLAIM AGAINST CORPORATE OFFICER LIZBETH NEUMARK To the extent that plaintiff attempts to state a cause of action for individual civil liability against the Chief Executive Officer of Great Performances under Section 196-d of the Labor Law, that cause of action must be dismissed. There is no basis for asserting claims against a corporate officer or director for a corporation’s alleged violations under Article 6 of the Labor Laws. New York courts have held that “The Legislature clearly intended that corporate officers not be subjected to civil liability under that article of the Labor Law.” Renzler v. D.F. White, 267 A.D.2d 443, 444, 700 N.Y.S.2d 487 (2d Dept. 1999); See Andux v. Woodbury Auto Park, Inc., 30 A.D. 3d 362, 816 N.Y.S.2d 181 (2d Dept. 2006); Selinger v. GF Health Prods., 23 Mise.3d 1113 (A); 885 N.Y.S.2d 713 (Sup.Ct. 2009). Accordingly, any cause of action for individual civil liability against Ms. Neumark should be dismissed, and her name removed from the caption. CONCLUSION For all of the foregoing reasons, defendants respectfully request an order dismissing the Complaint in part on the grounds of failure to state a cause of action. Dated: New York, N.Y. KANE KESSLER, P.C. June 24, 2013 Attorneys for Defendants GREAT PERFORMANCES/ARTISTS AS WAITRESSES, INC. and LIZBETH NEUMARK By’ 4 ty purr— Lois M. Traub 1350 Avenue of the Americas New York, N.Y. 10019 (212) 519-5120 -5- To Russell S. Moriarty, Esq. Levine & Blit, PLLC Attorneys for Plaintiff 350 Fifth Avenue, Suite 3601 New York, New York 10118 (212) 967-3000 -6- AFFIDAVIT OF SERVICE BY FEDERAL EXPRESS MAIL STATE OF NEW YORK ) COUNTY OF NEW YORK. )ss.: I, Doris E. Guntner, being duly sworn, say: Tam not a party to the within action, am over 18 years of age, and reside in Freeport, New York. On June 24, 2013, I served the within: DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS by delivering a true copy thereof, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of Federal Express Mail within New York State, addressed to the following: To: Russell S. Moriarty, Esq. Levine & Blit, PLLC 350 Fifth Avenue, Suite 3601 New York, New York 10118 De OC Ga Doris E. Guntner Sworn to before me this 24" day of June, 2013 GARY OSTROFF Notary Public, State of New York No. 020855073607 Qualified in Nassau C 01 Commission Expires Feb, 24, SB -7-