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FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019
EXHIBIT C
FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019
INDEX NO. 611534/2017
ILED : NASSA
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/20
SUPREME COURT - STATE OF NEW YORK
Present:
HON. VITO M. DESTEFANO,
Justice
TRIAL/IAS, PART 11
NASSAU COUNTY
VICTOR VILLASIN, individually and on
behalf of others eimilarly situated,
Decision and Order
Plaintiffs,
MOTION SEQUENCE:01
-against- INDEX NO.:611534/2017
THE SLEEPY HOLLOW COÙNTRY CLUB,
and any other related entities,
Defendants.
The papers and the a++-^'-"= and exhibits thereto have been read on this
following
motion:
Notice of Motion 1
Affirmation in Support 2
Affidavit in Support 3
Memorandum of Law in Support 4
Affirmation in Opposition 5
Memorandum of Law in Opposition 6
Reply Memorandum of Law 7
Reply Affirmation 8
In an action to recover damages for violation of Labor Law § 196-d, the Defendant mov,es
for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the complaint.
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Introduction
In this action, Plaintiff Victor Villasin alleges, on behalf of himself and others similarly
situated, that Defendant Sleepy Hollow Country Club ("the Club") violated Labor Law § 196-d
and the Department of Labor's Hospitality Wage Order 12 NYCRR 146-2.18 and 2.19 (the
"Wage Order") by failing to pay their employees gratuities from catered events.
Background
The Plaintiff worked at four events at the Club over a two month period - from June 2015
through August 2015. Plaintiff was not
directly
employed by the Club but, rather, was provided
by a
staffing agency to work as a member of the service staff for the catered events, consisting of
two golf outings and two weddings.
The agreements for the golf outings contained the
following
identical language:
FOOD AND BEVERAGE ARRANGEMENTS
* * *
4. ADDITIONAL FOOD AND BEVERAGE PACKAGES
For guests and invitees not participating in golf, the following food and beverage
packages are available.
A. all day package: includes lunch, dinner, beverages, applicable sales tax and
administrative fees*.
B. evening package: includes dinner, beverages, applicable sales tax and
administrative fees*.
*
Note: The administrative fee is not a gratuity and is a charge that will be retained
by the club. All food and beverage prices are subject to a 20% administrative fee.
All food and beverage charges are subject to 7.375% sales tax.
2
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ADDITIONAL EVENT CHARGES
1. PRICE
The price per player will be [XXX] in 2015 and includes greens fees, golf cars,
caddie fees (as specified by the Club), practice range, locker room services, golf staff
tournament administration (Caddie Master, Golf Shop staff), lunch, dinner, beverages
(Food and Beverage Service applicable sales tax and administrative fees . . .
Staff),
Caddie gratuities are not included in the golf package, caddie gratuities are voluntary
and given at the discretion of the group patron and/or guests. No gratuities, with the
exception of the caddie are or expected. (All staff
voluntary gratuities, necessary
compensation is included in the event price.) . 2 . .
(Note: The administrative fee is not a gratuity and is a charge that will be
"A" "B"
retained by the Club) (Exs. and to Motion at pp 6, 8) (êmphasis in
original).
The asmumuts for the weddings contained similar language. The first wedding
agreement provided as follows:
The package price . . . will be [XXX] per person plus 20% administrative fee and
sales tax. The package includes your cocktail hour with 8 passed hor d'oeuvres,
premium open bar for 5 hours, a three course dinner with choice of entree . . . . It also
includes house linen (ivory) all service staff required for your event . . . except for
station chefs and bartenders which are
[XXX] ea.
The second page of the
wedding agreement also lists a cost estimate based on 190 guests and
lists an administrative fee of 20% and a tax of 7.375% . The cost estimate also contains the
. following:
Special Notes:
Prices are based on a 5-hour event on Saturday July 18, 2015. Final guest guarantee
must be received 4 business days prior to the event. The administrative fee is not a
gratuity and is a charge that will be retained by the club. All food and beverage
prices are subject to a 20% administrative fee. All food and beverage charges are
"C"
subject to a 7.375% sales tax . . . . (Ex. to Motion) (emphasis in original).
The other wedding agreement also listed a 20% administrative fee and 7.375 sales tax
3
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Notes"
with a "Special section indicating that"[t]he administrative fee is not a gratuity and is a
charge that will be retained by the club. All food and beverage prices are subject to a 20%
fee" "D"
administrative (Ex, to Motion).
In October 2017, the Plaintiff commenced the instant action, on behalf of himself and
other similarly situated plaintiffs, alleging that the Club: catered events for which it utilized
service workers to perform food and service related tasks; "included a Service Charge in the
amount of approximately 20% on the contracts for the catered events; provided other documents
charge'
(bills, invoices, etc) "that conveyed a 'service or other mandatory charges for
administration of catered events"; "failed to disclaim that the Service Charge was not a gratuity
for the staff"; "utilized the same standard forms for numerous catered events that contained a
madatory Service Charge on it - without disclaimer"; "reasonable patrons would have
understood the Service Charge to be in the nature of a gratuity"; and, "repicsented or allowed
gratuity."
[Club] patrons to believe that the Service Charge was a The Plaintiff's claim that he
and other members of the putative class were paid only an hourly wage and did not receive all
tips and their portion of the Service Charge that the Club retained the Service Charge for itself
and "evaded record requirements . . . by failing to maintain proper and complete records of
required"
service charges in the nature of gratuities, as (Complaint at ¶¶ 19-41).
Given the above allegations, the Plaintiff asserts that the Club violated Labor Law §
196-d and the Department of Labor's Hospitality Wage Order 12 NYCRR 146-2.18 and 2.19;
and that Plaintiff is entitled to damages, including liquidated damages under Labor Law § 198.
The Club moves for an order dismissing the sole cause of action in the complaint on the
ground that the facts alleged do not constitute a violation of Labor Law 196-d, which only applies
in situations where the employer represents to customers, or allows customers to believe, that the
charges" employees.'
"service are gratuities intended to benefit the
1
An additional for dismissal,
basis argued by the Club, is that the right to recover statutory
liquidated damages (as provided for in Labor Law § 198) imposes a statutory penalty within the meaning
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For the reasolis that follow, the court finds that the Club did not violate Labor Law 196-d;
the motion is, therefore, granted and the complaint is dismissed.
The Court's Determination
Applicable Law
On a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary evidence
presented must be unambiguous, authentic, and undeniable (see Granada Condominium III Assn.
v Palomino, 78 AD3d 996, 996-997 [2d Dept 2010] ; Fontanetta v Doe, 73 AD3d 78 [2d Dept
2010]). To a defendant must show evidence * * *
succeed, that the '"documentary conclusively
law'"
establishes a defense to the asserted claims as a matter of (Held v Kaufman, 91 NY2d 425,
430-31 [1998], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]). It is axiomatic that the
"documcatary"
evidence relied on must be or the motion must be denied (Fontanetta v John Doe
1, 73 AD3d at 84, supra). "[J]udicial records, as well as documents reflecting out-of-court
transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are
case"
essentially undenia'ole, would qualify as documentary evidence in the proper (Id. at 84-85).
In considering a CPLR 3211(a)(7) motion to dismiss, the court is to determine whether
the pleading states a cause of action. A motion to dismiss will fail where the factual allegations
in the complaint, taken together, manifest any cause of action cognizable at law (Kopelowitz &
Co., Inc. v Mann, 83 AD3d 793, 796 -97 [2d Dept 2011] citing Leon v Martinez, 84 NY2d 83,
87-88 [1994]; Hense v Baxter, 79 AD3d 814 [2d Dept 2010]). The complaint must be construed
liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit
of every possible favorable inference (Id. citing Leon v Martinez, 84 NY2d at 87, supra; Sokol v
Leader, 74 AD3d 1180 [2d Dept 2010]).
..
of CPLR 901(b), which provides that a class action seeking to recover a statutory
penalty may only be
maintaiñcd where expressly authorized by statute, and that the statute creating wage paymcat liability
(Labor Law § 190 et seq.) does not authorize recovery of such a penalty through the class action
mechañism (Memorandum of Law in Support at pp 2-3, 13-14).
5
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Section 196-d of the Labor Law prohibits employers from demanding, accepting or
or iñdirectly, part of an employee's or any charge purported to be a
retaining, directly any gratuity
gratuity.2
. Relevant portions of the Department of Labor's Hospitality
Wage Order, codified at 12
, NYCRR 146-2.18 and 146-2.19 and enacted in 2011, supplement and clarify
the Labor Law, and
state that there is "a rebuttable presumption that any charge in addition to charges for food,
beverage, lodging, and other specified materials or services, including but not limited to any
'service' service,' gratuity"
charge for or 'food is a charge purported to be a (12 NYCRR
146-2.18[b]).3
An employer can rebut the presumption set forth in 12 NYCRR 146-2.18[b] by
demonstrating, with clear and convincing evidence, that it provided notification tliat was
2
Pursuant to Labor Law § 196-d, entitled "Gratuities":
No employer or his agent or an officer or agent of
any corporation, or any other person shall
demand or accept, directly or indirectly, any part of the gratuities, roccived by an employee,
or retain any part of a gratuity or of
any charge purported to be a gratuity for an employee
, . . . Nothing in this subdivision shall be construed as . . . affecting practices in connection
with banquets and other special functions where a fixed percentage of the patron's bill is
added for gratuities which are distributed to employees, nor to the sharing oftips by a waiter
with a busboy or similar employee.
3 tip"
12 NYCRR 146-2.18, entitled "Charge purported to be a gratuity or reads as follows:
Section 196-d of the New York State Labor Law prohibits employers from demanding,
accepting, or retaining, or iñdirectly, any part of an cmployee's or
directly gratuity any
charge purported to be a gratuity.
(a) A charge purported to be a gratuity must be distributed in full as gratuities to the service
employees or food service workers who provided the service.
(b) There shall be a rebuttable presumption that any charge in addition to charges for food,
beverage, lodging, and other specified materials or services, including but not limited to
any
"service" service,"
charge for or "food is a charge purported to be a gratuity.
(c) Employers who make charges purported to be gratuities must establish, maintain and
preserve for at least six years records of such charges and their dispositions.
(d) Such records must be regularly made available for participañts in the tip
Preview
FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 EXHIBIT C FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 INDEX NO. 611534/2017 ILED : NASSA NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/20 SUPREME COURT - STATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice TRIAL/IAS, PART 11 NASSAU COUNTY VICTOR VILLASIN, individually and on behalf of others eimilarly situated, Decision and Order Plaintiffs, MOTION SEQUENCE:01 -against- INDEX NO.:611534/2017 THE SLEEPY HOLLOW COÙNTRY CLUB, and any other related entities, Defendants. The papers and the a++-^'-"= and exhibits thereto have been read on this following motion: Notice of Motion 1 Affirmation in Support 2 Affidavit in Support 3 Memorandum of Law in Support 4 Affirmation in Opposition 5 Memorandum of Law in Opposition 6 Reply Memorandum of Law 7 Reply Affirmation 8 In an action to recover damages for violation of Labor Law § 196-d, the Defendant mov,es for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the complaint. 1 of 9 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 KLED : NASSAU COUNTY CLERK 05/16 /2 018 04Î31 PM| INDEX NO. 611534/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/2018 Introduction In this action, Plaintiff Victor Villasin alleges, on behalf of himself and others similarly situated, that Defendant Sleepy Hollow Country Club ("the Club") violated Labor Law § 196-d and the Department of Labor's Hospitality Wage Order 12 NYCRR 146-2.18 and 2.19 (the "Wage Order") by failing to pay their employees gratuities from catered events. Background The Plaintiff worked at four events at the Club over a two month period - from June 2015 through August 2015. Plaintiff was not directly employed by the Club but, rather, was provided by a staffing agency to work as a member of the service staff for the catered events, consisting of two golf outings and two weddings. The agreements for the golf outings contained the following identical language: FOOD AND BEVERAGE ARRANGEMENTS * * * 4. ADDITIONAL FOOD AND BEVERAGE PACKAGES For guests and invitees not participating in golf, the following food and beverage packages are available. A. all day package: includes lunch, dinner, beverages, applicable sales tax and administrative fees*. B. evening package: includes dinner, beverages, applicable sales tax and administrative fees*. * Note: The administrative fee is not a gratuity and is a charge that will be retained by the club. All food and beverage prices are subject to a 20% administrative fee. All food and beverage charges are subject to 7.375% sales tax. 2 2 of 9 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 OUNTY CLERK 0 5 /16 / 2 0 18 0 4 : 3 1 PM) . INDEX NO. 611534/201Ÿ NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/2018 ADDITIONAL EVENT CHARGES 1. PRICE The price per player will be [XXX] in 2015 and includes greens fees, golf cars, caddie fees (as specified by the Club), practice range, locker room services, golf staff tournament administration (Caddie Master, Golf Shop staff), lunch, dinner, beverages (Food and Beverage Service applicable sales tax and administrative fees . . . Staff), Caddie gratuities are not included in the golf package, caddie gratuities are voluntary and given at the discretion of the group patron and/or guests. No gratuities, with the exception of the caddie are or expected. (All staff voluntary gratuities, necessary compensation is included in the event price.) . 2 . . (Note: The administrative fee is not a gratuity and is a charge that will be "A" "B" retained by the Club) (Exs. and to Motion at pp 6, 8) (êmphasis in original). The asmumuts for the weddings contained similar language. The first wedding agreement provided as follows: The package price . . . will be [XXX] per person plus 20% administrative fee and sales tax. The package includes your cocktail hour with 8 passed hor d'oeuvres, premium open bar for 5 hours, a three course dinner with choice of entree . . . . It also includes house linen (ivory) all service staff required for your event . . . except for station chefs and bartenders which are [XXX] ea. The second page of the wedding agreement also lists a cost estimate based on 190 guests and lists an administrative fee of 20% and a tax of 7.375% . The cost estimate also contains the . following: Special Notes: Prices are based on a 5-hour event on Saturday July 18, 2015. Final guest guarantee must be received 4 business days prior to the event. The administrative fee is not a gratuity and is a charge that will be retained by the club. All food and beverage prices are subject to a 20% administrative fee. All food and beverage charges are "C" subject to a 7.375% sales tax . . . . (Ex. to Motion) (emphasis in original). The other wedding agreement also listed a 20% administrative fee and 7.375 sales tax 3 3 of 9 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 FILED : NASSAU COUNTY CLERK 05 /16 018 PM INDEX NO. 611534/2017 /2 0 4 : 31 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/2018 Notes" with a "Special section indicating that"[t]he administrative fee is not a gratuity and is a charge that will be retained by the club. All food and beverage prices are subject to a 20% fee" "D" administrative (Ex, to Motion). In October 2017, the Plaintiff commenced the instant action, on behalf of himself and other similarly situated plaintiffs, alleging that the Club: catered events for which it utilized service workers to perform food and service related tasks; "included a Service Charge in the amount of approximately 20% on the contracts for the catered events; provided other documents charge' (bills, invoices, etc) "that conveyed a 'service or other mandatory charges for administration of catered events"; "failed to disclaim that the Service Charge was not a gratuity for the staff"; "utilized the same standard forms for numerous catered events that contained a madatory Service Charge on it - without disclaimer"; "reasonable patrons would have understood the Service Charge to be in the nature of a gratuity"; and, "repicsented or allowed gratuity." [Club] patrons to believe that the Service Charge was a The Plaintiff's claim that he and other members of the putative class were paid only an hourly wage and did not receive all tips and their portion of the Service Charge that the Club retained the Service Charge for itself and "evaded record requirements . . . by failing to maintain proper and complete records of required" service charges in the nature of gratuities, as (Complaint at ¶¶ 19-41). Given the above allegations, the Plaintiff asserts that the Club violated Labor Law § 196-d and the Department of Labor's Hospitality Wage Order 12 NYCRR 146-2.18 and 2.19; and that Plaintiff is entitled to damages, including liquidated damages under Labor Law § 198. The Club moves for an order dismissing the sole cause of action in the complaint on the ground that the facts alleged do not constitute a violation of Labor Law 196-d, which only applies in situations where the employer represents to customers, or allows customers to believe, that the charges" employees.' "service are gratuities intended to benefit the 1 An additional for dismissal, basis argued by the Club, is that the right to recover statutory liquidated damages (as provided for in Labor Law § 198) imposes a statutory penalty within the meaning 4 of 9 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 INDEX NO . 61153 4 /2 017 FILED : NASSAU COUNTY CLERK 0 5 /16 /2 018 0 4 : 31 PM| NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/2018 For the reasolis that follow, the court finds that the Club did not violate Labor Law 196-d; the motion is, therefore, granted and the complaint is dismissed. The Court's Determination Applicable Law On a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary evidence presented must be unambiguous, authentic, and undeniable (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2d Dept 2010] ; Fontanetta v Doe, 73 AD3d 78 [2d Dept 2010]). To a defendant must show evidence * * * succeed, that the '"documentary conclusively law'" establishes a defense to the asserted claims as a matter of (Held v Kaufman, 91 NY2d 425, 430-31 [1998], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]). It is axiomatic that the "documcatary" evidence relied on must be or the motion must be denied (Fontanetta v John Doe 1, 73 AD3d at 84, supra). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are case" essentially undenia'ole, would qualify as documentary evidence in the proper (Id. at 84-85). In considering a CPLR 3211(a)(7) motion to dismiss, the court is to determine whether the pleading states a cause of action. A motion to dismiss will fail where the factual allegations in the complaint, taken together, manifest any cause of action cognizable at law (Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 796 -97 [2d Dept 2011] citing Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Hense v Baxter, 79 AD3d 814 [2d Dept 2010]). The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (Id. citing Leon v Martinez, 84 NY2d at 87, supra; Sokol v Leader, 74 AD3d 1180 [2d Dept 2010]). .. of CPLR 901(b), which provides that a class action seeking to recover a statutory penalty may only be maintaiñcd where expressly authorized by statute, and that the statute creating wage paymcat liability (Labor Law § 190 et seq.) does not authorize recovery of such a penalty through the class action mechañism (Memorandum of Law in Support at pp 2-3, 13-14). 5 5 of 9 FILED: NEW YORK COUNTY CLERK 02/26/2019 05:53 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/26/2019 C INDEX NO. 611534/2017 rfY /2 018 0 4 : 31 PM| NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/16/2018 Section 196-d of the Labor Law prohibits employers from demanding, accepting or or iñdirectly, part of an employee's or any charge purported to be a retaining, directly any gratuity gratuity.2 . Relevant portions of the Department of Labor's Hospitality Wage Order, codified at 12 , NYCRR 146-2.18 and 146-2.19 and enacted in 2011, supplement and clarify the Labor Law, and state that there is "a rebuttable presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any 'service' service,' gratuity" charge for or 'food is a charge purported to be a (12 NYCRR 146-2.18[b]).3 An employer can rebut the presumption set forth in 12 NYCRR 146-2.18[b] by demonstrating, with clear and convincing evidence, that it provided notification tliat was 2 Pursuant to Labor Law § 196-d, entitled "Gratuities": No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, roccived by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee , . . . Nothing in this subdivision shall be construed as . . . affecting practices in connection with banquets and other special functions where a fixed percentage of the patron's bill is added for gratuities which are distributed to employees, nor to the sharing oftips by a waiter with a busboy or similar employee. 3 tip" 12 NYCRR 146-2.18, entitled "Charge purported to be a gratuity or reads as follows: Section 196-d of the New York State Labor Law prohibits employers from demanding, accepting, or retaining, or iñdirectly, any part of an cmployee's or directly gratuity any charge purported to be a gratuity. (a) A charge purported to be a gratuity must be distributed in full as gratuities to the service employees or food service workers who provided the service. (b) There shall be a rebuttable presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any "service" service," charge for or "food is a charge purported to be a gratuity. (c) Employers who make charges purported to be gratuities must establish, maintain and preserve for at least six years records of such charges and their dispositions. (d) Such records must be regularly made available for participañts in the tip