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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------- X
LESLIE CORTES, individually and on behalf
Index No. 154853/2018
of others similarly situated,
ANSWER TO COMPLAINT
Plaintiffs,
-against-
PACIFIC LANGHAM NEW YORK
CORPORATION d/b/a LANGHAM PLACE
FIFTH AVENUE; and any other related
entities,
Defendants.
:
__--__________________________--________________-______
X
Defendant Pacific Langham New York Corporation d/b/a Langham Place Fifth Avenue
("Defendant"
("Defendant"), by and through itsattorneys Seyfarth Shaw LLP, hereby submits its Answer to
Complaint and states as follows:
PRELIMINARY STATEMENT
COMPLAINT $1:
("
This action is brought pursuant to New York Labor Law ("Labor Law") § 190 et seq.,
Labor Law § 196-d, and 12 New York Codes, Rules and Regulations ("NYCRR") Part 146 to
recover unlawfully retained tips and gratuities owed to Plaintiff and other similarly situated
persons who are presently or were formerly employed by PACIFIC LANGHAM NEW YORK
CORPORATION d/b/a LANGHAM PLACE FIFTH AVENUE; and any other related entities
"Defendants" Defendants'
(collectively referred to as "Defendants") at hotel and catering venues located in the
State of New York, including but not limited to the facility commonly known as Langham Place
Fifth Avenue.
ANSWER:
Paragraph 1 contains a summary of this action, as to which no response is required, but to
the extent a response is deemed required, itis denied. Answering further, Defendant denies that
itacted unlawfully toward Plaintiff or any member of the putative class.
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COMPLAINT $2:
Upon information and belief, beginning in approximately May 2012 and continuing
Period"
through the present (hereinafter "the Relevant Period"), Defendants have engaged in a policy and
employees' Defendants'
practice of unlawfully retaining gratuities at all of hotel and catering
venues located in New York.
ANSWER:
Defendant denies the allegations in paragraph 2 of the Complaint.
COMPLAINT $3:
Upon information and belief, throughout the Relevant Period, documents including bills,
menus, contracts, invoices and other catering related documents contained a mandatory charge
assessed in connection with the administration of a banquet and/or catered event - sometimes
referred to as a Service Charge - without properly disclaiming that the Service Charge is not a
gratuity for the staff.
ANSWER:
Defendant denies the allegations in paragraph 3 of the Complaint.
COMPLAINT $4:
A reasonable customer would believe that the Service Charge was in fact a gratuity for
Plaintiff and similarly situated service employees.
ANSWER:
Defendant denies the allegations in paragraph 4 of the Complaint.
COMPLAINT $5:
Defendants have engaged in a policy and practice of failing to pay the Service Charge to
Plaintiff and similarly situated employees and instead retained the money for their own benefit in
violation of Labor Law Article 6 § 196-d.
ANSWER:
Defendant denies the allegations in paragraph 5 of the Complaint.
COMPLAINT $6:
Plaintiff has initiated this action seeking for herself, and on behalf of all similarly situated
employees, compensation, including gratuities that they were deprived of - plus interest,
attorneys'
fees, and costs.
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ANSWER:
Paragraph 6 contains a summary of this action, to which no response is required, but to
the extent a response is deemed required, itis denied.
THE PARTIES
COMPLAINT ¶7:
Plaintiff LESLIE CORTES is an individual who resides in State of New York, and has
worked for Defendants in food and service capacities at catered events during the Relevant
Defendants'
Period on numerous occasions, including but not limited to during Spring 2016, at
Langham Place Fifth Avenue location.
ANSWER:
Defendant lacks knowledge or information sufficient to admit or deny the allegations
contained in paragraph 7 of the Complaint, but admits that Plaintiff performed services at the
Langham Place Fifth Avenue in or around 2016.
COMPLAINT ¶8:
Upon information and belief, Defendant PACIFIC LANGHAM NEW YORK
CORPORATION is a foreign business corporation organized and existing under the laws of the
State of Delaware, and is authorized to do business in the State of New York, with a
headquarters and principal place of business located at 400 Fifth Avenue, New York, New York
10018 and is engaged in the hospitality industry as that term is used and defined in 12 NYCRR
Part 146.
ANSWER:
Defendant admits the allegations in paragraph 8 of the Complaint.
COMPLAINT ¶9:
Defendants are a single and/or joint employer under the Labor Law in that they share a
common business purpose and ownership, and maintain common control, oversight and direction
over the operations of the work performed by Plaintiffs and putative class members, including
payroll practices.
ANSWER:
Defendant denies the allegations in paragraph 9 of the Complaint as there is only one
named defendant in this action.
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Upon information and belief, each Defendant has had substantial control of Plaintiff's
members'
and putative class working conditions and over the unlawful policies and practices
alleged herein,
ANSWER:
Defendant denies the allegations in paragraph 10 of the Complaint as there is only one
named defendant in this action.
CLASS ALLEGATIONS
~OL
This action is properly maintainable as a Class Action under Article 9 of the New York
Civil Practice Law and Rules.
ANSWER:
Defendant denies the allegations in paragraph 11 of the Complaint.
~OL
This action is brought on behalf of the Named Plaintiff and a class consisting of similarly
situated individuals who performed work for Defendants as service employees, including such
workers as wait staff,waiters, servers, captains, bussers, bartenders, food runners, maitre d's,
bridal attendants, and in various other related customarily-tipped trades,
ANSWER:
Paragraph 12 contains a summary of this action, to which no response is required, but to
the extent a response is deemed required, itis denied.
The putative class is so numerous that joinder of all members is impracticable. The size
of the putative class is believed to be in excess of 40 employees. In addition, the names of all
potential members of the putative class are not known.
ANSWER:
Defendant denies the allegations in paragraph 13 of the Complaint.
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COMPLAINT $14:
The questions of law and fact common to the putative class predominate over any
questions affecting only individual members. These questions of law and fact include, but are not
limited to:
1) whether Defendants assessed charges to its customers in the nature of gratuities,
as those terms are defined under the Labor Law and the cases and regulations
interpreting same;
Defendants'
2) whether patrons made payments to Defendants or which were
received or retained by Defendants which reasonable patrons would assume to
have been in the nature of gratuities; and
3) whether Defendants improperly retained gratuities in violation of Labor Law §
196-d and cases interpreting same.
ANSWER:
Defendant denies the allegations in paragraph 14 of the Complaint.
COMPLAINT ¶15:
The claims of the Named Plaintiff are typical of the claims of the putative class, as all
Defendants'
were subject to policies and willful practices of improperly retaining gratuities in
violation of Labor Law § 196-d.
ANSWER:
Defendant denies the allegations in paragraph 15 of the Complaint.
COMPLAINT $16:
The Named Plaintiff and her counsel will fairly and adequately protect the interests of the
putative class.
ANSWER:
Defendant denies the allegations in paragraph 16 of the Complaint.
COMPLAINT $17:
The Named Plaintiff has retained counsel experienced in complex wage and hour class
action litigation.
ANSWER:
Defendant lacks knowledge or information sufficient to admit or deny the allegations
contained in paragraph 17 of the Complaint.
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COMPLAINT $18:
A class action is superior to other available methods for the fair and efficient adjudication
of this controversy. The individual Named Plaintiff and putative class members lack the financial
resources to adequately prosecute separate lawsuits against Defendants.
ANSWER:
Defendant denies the allegations in paragraph 18 of the Complaint.
COMPLAINT $19:
A class action will also prevent unduly duplicative litigation resulting from inconsistent
Defendants'
judgments pertaining to the policies.
ANSWER:
Defendant denies the allegations in paragraph 19 of the Complaint.
FACTS
COMPLAINT $20:
Throughout the Relevant Period, Defendants employed, in furtherance of their catering
business, numerous individuals including Plaintiff Cortes and putative class members, in trades
including wait staff, waiters, servers, captains, bussers, bartenders, food runners, maitre d's,
("
bridal attendants, and in various other related customarily-tipped trades service workers").
ANSWER:
Defendant denies the allegations in paragraph 20 of the Complaint.
COMPLAINT ¶21:
Throughout the Relevant Period, Defendants contracted with customers to cater events
such as parties, birthdays, gatherings, holidays, celebrations, weddings, anniversaries, bar
mitzvahs and other parties or occasions at its catering venues including but not limited to the
("
facility commonly known as the Langham Place Fifth Avenue catered events").
ANSWER:
Defendant denies the allegations in paragraph 21 of the Complaint as there is only one
named defendant in this action.
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COMPLAINT $22:
For these catered events, Defendants utilized standard forms, including contracts, bills,
invoices, and menus.
ANSWER:
Defendant denies the allegations contained in paragraph 22 of the Complaint except admits
that itutilized forms in connection with catered events.
COMPLAINT $23:
For each catered event, Defendants employed a staff of numerous service workers to
perform food and service related tasks.
ANSWER:
Defendant denies the allegations contained in paragraph 23 of the Complaint except avers
that itretained individuals directly and through an intermediary to provide banquet service in
connection with certain catered events.
COMPLAINT $24:
Many of these service workers would perform services under the same contracts at the
same catered events to the same guests.
ANSWER:
Defendant lacks knowledge or information sufficient to admit or deny the allegations in
paragraph 24 of the Complaint.
COMPLAINT $25:
Defendants provided customers with other documents - such as menus, bills, and
invoices - that conveyed a "service
charge"
or other mandatory charges for administration of
catered events.
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ANSWER:
Defendant denies the allegations in paragraph 25 of the Complaint except avers that, for
certain events, itprovided documents to customers that contained information regarding an
administrative charge that was not, and was not purported to be, a gratuity or a tip.
COMPLAINT ¶26:
Defendants failed to properly disclaim that the Service Charge was not a gratuity for the
staff on all documents that contained pricing information, as required by § 196-d and its
Defendants'
implementing regulations. For example, standard catered event menu specifically
Tax,"
states that "Pricing is exclusive of 2410 Administrative Fee + 8.875% NY State Sales
without any explanation of the Administrative Fee or any indication that the charge is not a
gratuity and will not be distributed. A copy of the standard catered event menu is attached hereto
as Exhibit A.
ANSWER:
Defendant denies the allegations in paragraph 26 of the Complaint.
COMPLAINT $27:
Upon information and belief, Defendants utilized the same standard forms for numerous
catered events that contained a mandatory Service Charge on it, many of which contained no
disclaimer.
ANSWER:
Defendant denies the allegations in paragraph 27 of the Complaint.
COMPLAINT $28:
Upon information and belief, reasonable patrons would have understood the Service
Charge to be in the nature of a gratuity.
ANSWER:
Defendant denies the allegations in paragraph 28 of the Complaint.
COMPLAINT $29:
Defendants'
Upon information and belief, sales staff and/or event staff represented or
Defendants'
allowed patrons to believe that the Service Charge was a gratuity.
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ANSWER:
Defendant denies the allegations in paragraph 29 of the Complaint.
COMPLAINT $30:
While employed by Defendants, Plaintiff Cortes was paid an hourly wage and did not
receive all of her tips to which she was entitled.
ANSWER:
Defendant denies the allegations in paragraph 30 of the Complaint.
COMPLAINT $31:
Upon information and belief, other members of the putative class were paid only an
hourly wage and did not receive all of their tips to which they were entitled.
ANSWER:
Defendant denies the allegations in paragraph 31 of the Complaint.
COMPLAINT $32:
Plaintiff Cortes did not receive his portion of the Service Charge to which she was
entitled.
ANSWER:
Defendant denies the allegations in paragraph 32 of the Complaint.
COMPLAINT ¶33:
Upon information and belief, other members of the putative class did not receive their
portion of the Service Charge to which they were entitled.
ANSWER:
Defendant denies the allegations in paragraph 33 of the Complaint.
COMPLAINT ¶34:
Upon information and belief, Defendants retained the Service Charge for themselves.
ANSWER:
Defendant denies the allegations in paragraph 34 of the Complaint.
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FIRST CAUSE OF ACTION AGAINST DEFENDANTS:
UNLAWFUL WITHHOLDING OF GRATUITIES
COMPLAINT ¶35:
Plaintiff repeats and re-alleges the allegations set forth in the preceding paragraphs.
ANSWER:
Defendant repeats and re-alleges its answers to paragraphs 1 through 34 of the Complaint
as if fully set forth herein.
COMPLAINT $36:
"employers,"
Defendants are within the meaning contemplated pursuant to Labor Law
Article 6 § 190(3), Labor Law Article 19 § 651(6), and cases interpreting same.
ANSWER:
Defendant denies the allegations in paragraph 36 of the Complaint except admit that The
Langham, New York, Fifth Avenue is an employer.
COMPLAINT $37:
"employees,"
Plaintiff and putative class members are within the meaning contemplated
pursuant to Labor Law Article 6 § 190(2), Labor Law Article 19 § 651(5), 12 NYCRR § 146-3.2,
and cases interpreting same.
ANSWER:
Defendantdenies the allegations in paragraph 37 of the Complaint.
COMPLAINT $38:
Defendants exercised dominion and control over the employees that performed work for
Defendants, including employees that worked catered events.
ANSWER:
Defendant denies the allegations in paragraph 38 of the Complaint.
COMPLAINT $39:
The provisions of Labor Law Articles 6 and 19, and the supporting New York State
Department of Labor regulations, including 12 NYCRR Part 146, apply to Defendants and
protect Plaintiff and members of the putative class.
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ANSWER:
Paragraph 39 purports to summarize various provisions of law, as to which no response is
required, but to the extent a response is deemed required, Defendant denies that itviolated any of
the provisions cited therein.
COMPLAINT ¶40:
Pursuant to Labor Law Article 6 § 196-d, and the supporting New York State Department
of Labor Regulations, "No employer or her 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, received
by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an
employee."
ANSWER:
Paragraph 40 purports to summarize various provisions of law, as to which no response is
required, but to the extent a response is deemed required, Defendant denies that itviolated any of
the provisions cited therein.
COMPLAINT ¶41:
Pursuant to the New York State Department of Labor Regulations implementing § 196-d,
any charge that is not for food, beverage, lodging or specific services is presumed to be a gratuity
unless the employer provides adequate notification to customers that the charge is not a gratuity.
ANSWER:
Paragraph 41 purports to summarize various provisions of law, as to which no response is
required, but to the extent a response is deemed required, Defendant denies that itviolated any of
the provisions cited therein.
COMPLAINT ¶42:
notification"
Under 12 NYCRR § 146-2.19, "adequate is defined to mean "a statement in
the contract or agreement with the customer, and on any menu and bill listing prices, that the
administrative charge is for administration of the banquet, special function, or package deal, is
not purported to be a gratuity, and will not be distributed as gratuities to the employees who
provided service to the guests. The statements shall use ordinary language readily understood
font."
and shall appear in a font size similar to surrounding text, but no smaller than a 12-point
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ANSWER:
Paragraph 42 purports to summarize various provisions of law, as to which no response is
required, but to the extent a response is deemed required, Defendant denies that itviolated any of
the provisions cited therein.
COMPLAINT $43:
notification"
Defendants failed to include statements that constitute "adequate pursuant to
12 NYCRR § 146-2.19, and as such the Service Charges collected were presumptively gratuities
that should have been distributed in full to the service staff, including Plaintiff and putative class
members.
ANSWER:
Defendant denies the allegations in paragraph 43 of the Complaint.
COMPLAINT $44:
Defendants unlawfully withheld and retained portions of gratuities provided to service
employees, including but not limited to those collected as Service Charges.
ANSWER:
Defendant denies the allegations in paragraph 44 of the Complaint.
COMPLAINT $45:
Upon information and belief, Defendants willfully disregarded and purposefully evaded
recordkeeping requirements of applicable New York State law by failing to maintain proper and
complete records of service charges in the nature of gratuities, as required under 12 NYCRR §
146-2.
ANSWER:
Defendant denies the allegations in paragraph 45 of the Complaint.
COMPLAINT ¶46:
By the foregoing reasons, Defendants have violated Labor Law Article 6 § 196-d, and as
such are liable to Plaintiff and putative class members in an amount to be determined at trial,
attorneys'
plus interest, fees and costs.
ANSWER:
Defendant denies the allegations in paragraph 46 of the Complaint.
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PRAYER FOR RELIEF:
WHEREFORE, Plaintiff, individually and on behalf of all other persons similarly
situated who were or are employed by Defendants, demands judgment:
(1) on the firstcause of action against Defendants, in an amount to be determined at
attorneys'
trial, plus interest, fees, and costs, pursuant to the cited Labor Law
sections;
(2) together with such other and further relief the Court may deem appropriate.
ANSWER:
Defendant denies that Plaintiff or any member of the putative class are entitled to any of
the relief sought in the WHEREFORE clause contained on page 8 of the Complaint, or otherwise.
AFFIRMATIVE AND OTHER DEFENSES
Defendant asserts the following affirmative and other defenses without assuming any
burden of production or proof that itwould not otherwise have.
FIRST AFFIRMATIVE DEFENSE
Plaintiff fails to state a claim, in whole or in part, upon which relief may be granted, either
on her own behalf or on behalf of those persons whom she purports to represent or to whom she is
purportedly similarly situated.
SECOND AFFIRMATIVE DEFENSE
This action cannot be maintained as a class action pursuant to Article 9 of the New York
Civil Practice Law and Rules.
THIRD AFFIRMATIVE DEFENSE
To the extent that the claims of Plaintiff and/or any of the putative class members are barred
by the applicable statute(s) of limitations, such claims must be dismissed.
FOURTH AFFIRMATIVE DEFENSE
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Defendant at all times, in all manners, acted in accordance with any and all duties and
obligations under New York State law and its regulations.
FIFTH AFFIRMATIVE DEFENSE
entities"
Plaintiff does not have standing to assert claims against "any other related as
alleged in the Complaint.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff does not have standing to assert claims against Defendant as she was not employed
by Defendant.
RESERVATION OF RIGHTS
Defendant reserves its right to raise additional defenses as may be discovered during the
course of these proceedings.
WHEREFORE, Defendant demands judgment in its favor:
(a) finding that Plaintiff is not entitled to the relief she seeks on behalf of herself or any
other individual or to any other relief;
(b) dismissing the Complaint against Defendant on the merits with prejudice and in its
entirety;
attorneys'
(c) awarding Defendant its costs and disbursements, including reasonable
fees incurred in this action; and
(d) granting Defendant such other and further relief as the Court may deem just and
proper.
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Dated: New York, New York Respectfully submitted,
August 1, 2018
SEYFARTH SHAW LLP
By: /s/ Howard M Wexler
Robert S. Whitman
Howard M. Wexler
620 Eighth Avenue
New York, New York 10018
Telephone: (212) 218-5500
Facsimile: (212) 218-5526
Attorneys for Defendant
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AFFIRMATION OF SERVICE
Howard M. Wexler, an attorney duly admitted to practice law in the State of New York
and before this Court and counsel for Pacific Langham New York Corporation d/b/a Langham
("Defendant"
Place Fifth Avenue ("Defendant") affirms under penalty of perjury as follows:
On August 1, 2018, I electronically filed the foregoing ANSWER AND OTHER DEFENSES TO
THE COMPLAINT via the Court's NYSCEF system, which sent notification to the following counsel
of record:
Michael A. Tompkins
Brett Cohen
Leeds Brown Law, P.C.
One Old Country Road, Suite 347
Carle Place, New York 11514
s/ Howard M Wexler
Howard M. Wexler
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Preview
FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------- X LESLIE CORTES, individually and on behalf Index No. 154853/2018 of others similarly situated, ANSWER TO COMPLAINT Plaintiffs, -against- PACIFIC LANGHAM NEW YORK CORPORATION d/b/a LANGHAM PLACE FIFTH AVENUE; and any other related entities, Defendants. : __--__________________________--________________-______ X Defendant Pacific Langham New York Corporation d/b/a Langham Place Fifth Avenue ("Defendant" ("Defendant"), by and through itsattorneys Seyfarth Shaw LLP, hereby submits its Answer to Complaint and states as follows: PRELIMINARY STATEMENT COMPLAINT $1: (" This action is brought pursuant to New York Labor Law ("Labor Law") § 190 et seq., Labor Law § 196-d, and 12 New York Codes, Rules and Regulations ("NYCRR") Part 146 to recover unlawfully retained tips and gratuities owed to Plaintiff and other similarly situated persons who are presently or were formerly employed by PACIFIC LANGHAM NEW YORK CORPORATION d/b/a LANGHAM PLACE FIFTH AVENUE; and any other related entities "Defendants" Defendants' (collectively referred to as "Defendants") at hotel and catering venues located in the State of New York, including but not limited to the facility commonly known as Langham Place Fifth Avenue. ANSWER: Paragraph 1 contains a summary of this action, as to which no response is required, but to the extent a response is deemed required, itis denied. Answering further, Defendant denies that itacted unlawfully toward Plaintiff or any member of the putative class. 46705318v.2 1 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 COMPLAINT $2: Upon information and belief, beginning in approximately May 2012 and continuing Period" through the present (hereinafter "the Relevant Period"), Defendants have engaged in a policy and employees' Defendants' practice of unlawfully retaining gratuities at all of hotel and catering venues located in New York. ANSWER: Defendant denies the allegations in paragraph 2 of the Complaint. COMPLAINT $3: Upon information and belief, throughout the Relevant Period, documents including bills, menus, contracts, invoices and other catering related documents contained a mandatory charge assessed in connection with the administration of a banquet and/or catered event - sometimes referred to as a Service Charge - without properly disclaiming that the Service Charge is not a gratuity for the staff. ANSWER: Defendant denies the allegations in paragraph 3 of the Complaint. COMPLAINT $4: A reasonable customer would believe that the Service Charge was in fact a gratuity for Plaintiff and similarly situated service employees. ANSWER: Defendant denies the allegations in paragraph 4 of the Complaint. COMPLAINT $5: Defendants have engaged in a policy and practice of failing to pay the Service Charge to Plaintiff and similarly situated employees and instead retained the money for their own benefit in violation of Labor Law Article 6 § 196-d. ANSWER: Defendant denies the allegations in paragraph 5 of the Complaint. COMPLAINT $6: Plaintiff has initiated this action seeking for herself, and on behalf of all similarly situated employees, compensation, including gratuities that they were deprived of - plus interest, attorneys' fees, and costs. 2 46705318v.2 2 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 ANSWER: Paragraph 6 contains a summary of this action, to which no response is required, but to the extent a response is deemed required, itis denied. THE PARTIES COMPLAINT ¶7: Plaintiff LESLIE CORTES is an individual who resides in State of New York, and has worked for Defendants in food and service capacities at catered events during the Relevant Defendants' Period on numerous occasions, including but not limited to during Spring 2016, at Langham Place Fifth Avenue location. ANSWER: Defendant lacks knowledge or information sufficient to admit or deny the allegations contained in paragraph 7 of the Complaint, but admits that Plaintiff performed services at the Langham Place Fifth Avenue in or around 2016. COMPLAINT ¶8: Upon information and belief, Defendant PACIFIC LANGHAM NEW YORK CORPORATION is a foreign business corporation organized and existing under the laws of the State of Delaware, and is authorized to do business in the State of New York, with a headquarters and principal place of business located at 400 Fifth Avenue, New York, New York 10018 and is engaged in the hospitality industry as that term is used and defined in 12 NYCRR Part 146. ANSWER: Defendant admits the allegations in paragraph 8 of the Complaint. COMPLAINT ¶9: Defendants are a single and/or joint employer under the Labor Law in that they share a common business purpose and ownership, and maintain common control, oversight and direction over the operations of the work performed by Plaintiffs and putative class members, including payroll practices. ANSWER: Defendant denies the allegations in paragraph 9 of the Complaint as there is only one named defendant in this action. 3 46705318v.2 3 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 Upon information and belief, each Defendant has had substantial control of Plaintiff's members' and putative class working conditions and over the unlawful policies and practices alleged herein, ANSWER: Defendant denies the allegations in paragraph 10 of the Complaint as there is only one named defendant in this action. CLASS ALLEGATIONS ~OL This action is properly maintainable as a Class Action under Article 9 of the New York Civil Practice Law and Rules. ANSWER: Defendant denies the allegations in paragraph 11 of the Complaint. ~OL This action is brought on behalf of the Named Plaintiff and a class consisting of similarly situated individuals who performed work for Defendants as service employees, including such workers as wait staff,waiters, servers, captains, bussers, bartenders, food runners, maitre d's, bridal attendants, and in various other related customarily-tipped trades, ANSWER: Paragraph 12 contains a summary of this action, to which no response is required, but to the extent a response is deemed required, itis denied. The putative class is so numerous that joinder of all members is impracticable. The size of the putative class is believed to be in excess of 40 employees. In addition, the names of all potential members of the putative class are not known. ANSWER: Defendant denies the allegations in paragraph 13 of the Complaint. 4 46705318v.2 4 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 COMPLAINT $14: The questions of law and fact common to the putative class predominate over any questions affecting only individual members. These questions of law and fact include, but are not limited to: 1) whether Defendants assessed charges to its customers in the nature of gratuities, as those terms are defined under the Labor Law and the cases and regulations interpreting same; Defendants' 2) whether patrons made payments to Defendants or which were received or retained by Defendants which reasonable patrons would assume to have been in the nature of gratuities; and 3) whether Defendants improperly retained gratuities in violation of Labor Law § 196-d and cases interpreting same. ANSWER: Defendant denies the allegations in paragraph 14 of the Complaint. COMPLAINT ¶15: The claims of the Named Plaintiff are typical of the claims of the putative class, as all Defendants' were subject to policies and willful practices of improperly retaining gratuities in violation of Labor Law § 196-d. ANSWER: Defendant denies the allegations in paragraph 15 of the Complaint. COMPLAINT $16: The Named Plaintiff and her counsel will fairly and adequately protect the interests of the putative class. ANSWER: Defendant denies the allegations in paragraph 16 of the Complaint. COMPLAINT $17: The Named Plaintiff has retained counsel experienced in complex wage and hour class action litigation. ANSWER: Defendant lacks knowledge or information sufficient to admit or deny the allegations contained in paragraph 17 of the Complaint. 5 46705318v.2 5 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 COMPLAINT $18: A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The individual Named Plaintiff and putative class members lack the financial resources to adequately prosecute separate lawsuits against Defendants. ANSWER: Defendant denies the allegations in paragraph 18 of the Complaint. COMPLAINT $19: A class action will also prevent unduly duplicative litigation resulting from inconsistent Defendants' judgments pertaining to the policies. ANSWER: Defendant denies the allegations in paragraph 19 of the Complaint. FACTS COMPLAINT $20: Throughout the Relevant Period, Defendants employed, in furtherance of their catering business, numerous individuals including Plaintiff Cortes and putative class members, in trades including wait staff, waiters, servers, captains, bussers, bartenders, food runners, maitre d's, (" bridal attendants, and in various other related customarily-tipped trades service workers"). ANSWER: Defendant denies the allegations in paragraph 20 of the Complaint. COMPLAINT ¶21: Throughout the Relevant Period, Defendants contracted with customers to cater events such as parties, birthdays, gatherings, holidays, celebrations, weddings, anniversaries, bar mitzvahs and other parties or occasions at its catering venues including but not limited to the (" facility commonly known as the Langham Place Fifth Avenue catered events"). ANSWER: Defendant denies the allegations in paragraph 21 of the Complaint as there is only one named defendant in this action. 6 46705318v.2 6 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 COMPLAINT $22: For these catered events, Defendants utilized standard forms, including contracts, bills, invoices, and menus. ANSWER: Defendant denies the allegations contained in paragraph 22 of the Complaint except admits that itutilized forms in connection with catered events. COMPLAINT $23: For each catered event, Defendants employed a staff of numerous service workers to perform food and service related tasks. ANSWER: Defendant denies the allegations contained in paragraph 23 of the Complaint except avers that itretained individuals directly and through an intermediary to provide banquet service in connection with certain catered events. COMPLAINT $24: Many of these service workers would perform services under the same contracts at the same catered events to the same guests. ANSWER: Defendant lacks knowledge or information sufficient to admit or deny the allegations in paragraph 24 of the Complaint. COMPLAINT $25: Defendants provided customers with other documents - such as menus, bills, and invoices - that conveyed a "service charge" or other mandatory charges for administration of catered events. 7 46705318v.2 7 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 ANSWER: Defendant denies the allegations in paragraph 25 of the Complaint except avers that, for certain events, itprovided documents to customers that contained information regarding an administrative charge that was not, and was not purported to be, a gratuity or a tip. COMPLAINT ¶26: Defendants failed to properly disclaim that the Service Charge was not a gratuity for the staff on all documents that contained pricing information, as required by § 196-d and its Defendants' implementing regulations. For example, standard catered event menu specifically Tax," states that "Pricing is exclusive of 2410 Administrative Fee + 8.875% NY State Sales without any explanation of the Administrative Fee or any indication that the charge is not a gratuity and will not be distributed. A copy of the standard catered event menu is attached hereto as Exhibit A. ANSWER: Defendant denies the allegations in paragraph 26 of the Complaint. COMPLAINT $27: Upon information and belief, Defendants utilized the same standard forms for numerous catered events that contained a mandatory Service Charge on it, many of which contained no disclaimer. ANSWER: Defendant denies the allegations in paragraph 27 of the Complaint. COMPLAINT $28: Upon information and belief, reasonable patrons would have understood the Service Charge to be in the nature of a gratuity. ANSWER: Defendant denies the allegations in paragraph 28 of the Complaint. COMPLAINT $29: Defendants' Upon information and belief, sales staff and/or event staff represented or Defendants' allowed patrons to believe that the Service Charge was a gratuity. 8 46705318v.2 8 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 ANSWER: Defendant denies the allegations in paragraph 29 of the Complaint. COMPLAINT $30: While employed by Defendants, Plaintiff Cortes was paid an hourly wage and did not receive all of her tips to which she was entitled. ANSWER: Defendant denies the allegations in paragraph 30 of the Complaint. COMPLAINT $31: Upon information and belief, other members of the putative class were paid only an hourly wage and did not receive all of their tips to which they were entitled. ANSWER: Defendant denies the allegations in paragraph 31 of the Complaint. COMPLAINT $32: Plaintiff Cortes did not receive his portion of the Service Charge to which she was entitled. ANSWER: Defendant denies the allegations in paragraph 32 of the Complaint. COMPLAINT ¶33: Upon information and belief, other members of the putative class did not receive their portion of the Service Charge to which they were entitled. ANSWER: Defendant denies the allegations in paragraph 33 of the Complaint. COMPLAINT ¶34: Upon information and belief, Defendants retained the Service Charge for themselves. ANSWER: Defendant denies the allegations in paragraph 34 of the Complaint. 9 46705318v.2 9 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 FIRST CAUSE OF ACTION AGAINST DEFENDANTS: UNLAWFUL WITHHOLDING OF GRATUITIES COMPLAINT ¶35: Plaintiff repeats and re-alleges the allegations set forth in the preceding paragraphs. ANSWER: Defendant repeats and re-alleges its answers to paragraphs 1 through 34 of the Complaint as if fully set forth herein. COMPLAINT $36: "employers," Defendants are within the meaning contemplated pursuant to Labor Law Article 6 § 190(3), Labor Law Article 19 § 651(6), and cases interpreting same. ANSWER: Defendant denies the allegations in paragraph 36 of the Complaint except admit that The Langham, New York, Fifth Avenue is an employer. COMPLAINT $37: "employees," Plaintiff and putative class members are within the meaning contemplated pursuant to Labor Law Article 6 § 190(2), Labor Law Article 19 § 651(5), 12 NYCRR § 146-3.2, and cases interpreting same. ANSWER: Defendantdenies the allegations in paragraph 37 of the Complaint. COMPLAINT $38: Defendants exercised dominion and control over the employees that performed work for Defendants, including employees that worked catered events. ANSWER: Defendant denies the allegations in paragraph 38 of the Complaint. COMPLAINT $39: The provisions of Labor Law Articles 6 and 19, and the supporting New York State Department of Labor regulations, including 12 NYCRR Part 146, apply to Defendants and protect Plaintiff and members of the putative class. 10 46705318v.2 10 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 ANSWER: Paragraph 39 purports to summarize various provisions of law, as to which no response is required, but to the extent a response is deemed required, Defendant denies that itviolated any of the provisions cited therein. COMPLAINT ¶40: Pursuant to Labor Law Article 6 § 196-d, and the supporting New York State Department of Labor Regulations, "No employer or her 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, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." ANSWER: Paragraph 40 purports to summarize various provisions of law, as to which no response is required, but to the extent a response is deemed required, Defendant denies that itviolated any of the provisions cited therein. COMPLAINT ¶41: Pursuant to the New York State Department of Labor Regulations implementing § 196-d, any charge that is not for food, beverage, lodging or specific services is presumed to be a gratuity unless the employer provides adequate notification to customers that the charge is not a gratuity. ANSWER: Paragraph 41 purports to summarize various provisions of law, as to which no response is required, but to the extent a response is deemed required, Defendant denies that itviolated any of the provisions cited therein. COMPLAINT ¶42: notification" Under 12 NYCRR § 146-2.19, "adequate is defined to mean "a statement in the contract or agreement with the customer, and on any menu and bill listing prices, that the administrative charge is for administration of the banquet, special function, or package deal, is not purported to be a gratuity, and will not be distributed as gratuities to the employees who provided service to the guests. The statements shall use ordinary language readily understood font." and shall appear in a font size similar to surrounding text, but no smaller than a 12-point 11 46705318v.2 11 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 ANSWER: Paragraph 42 purports to summarize various provisions of law, as to which no response is required, but to the extent a response is deemed required, Defendant denies that itviolated any of the provisions cited therein. COMPLAINT $43: notification" Defendants failed to include statements that constitute "adequate pursuant to 12 NYCRR § 146-2.19, and as such the Service Charges collected were presumptively gratuities that should have been distributed in full to the service staff, including Plaintiff and putative class members. ANSWER: Defendant denies the allegations in paragraph 43 of the Complaint. COMPLAINT $44: Defendants unlawfully withheld and retained portions of gratuities provided to service employees, including but not limited to those collected as Service Charges. ANSWER: Defendant denies the allegations in paragraph 44 of the Complaint. COMPLAINT $45: Upon information and belief, Defendants willfully disregarded and purposefully evaded recordkeeping requirements of applicable New York State law by failing to maintain proper and complete records of service charges in the nature of gratuities, as required under 12 NYCRR § 146-2. ANSWER: Defendant denies the allegations in paragraph 45 of the Complaint. COMPLAINT ¶46: By the foregoing reasons, Defendants have violated Labor Law Article 6 § 196-d, and as such are liable to Plaintiff and putative class members in an amount to be determined at trial, attorneys' plus interest, fees and costs. ANSWER: Defendant denies the allegations in paragraph 46 of the Complaint. 12 46705318v.2 12 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 PRAYER FOR RELIEF: WHEREFORE, Plaintiff, individually and on behalf of all other persons similarly situated who were or are employed by Defendants, demands judgment: (1) on the firstcause of action against Defendants, in an amount to be determined at attorneys' trial, plus interest, fees, and costs, pursuant to the cited Labor Law sections; (2) together with such other and further relief the Court may deem appropriate. ANSWER: Defendant denies that Plaintiff or any member of the putative class are entitled to any of the relief sought in the WHEREFORE clause contained on page 8 of the Complaint, or otherwise. AFFIRMATIVE AND OTHER DEFENSES Defendant asserts the following affirmative and other defenses without assuming any burden of production or proof that itwould not otherwise have. FIRST AFFIRMATIVE DEFENSE Plaintiff fails to state a claim, in whole or in part, upon which relief may be granted, either on her own behalf or on behalf of those persons whom she purports to represent or to whom she is purportedly similarly situated. SECOND AFFIRMATIVE DEFENSE This action cannot be maintained as a class action pursuant to Article 9 of the New York Civil Practice Law and Rules. THIRD AFFIRMATIVE DEFENSE To the extent that the claims of Plaintiff and/or any of the putative class members are barred by the applicable statute(s) of limitations, such claims must be dismissed. FOURTH AFFIRMATIVE DEFENSE 13 46705318v.2 13 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 Defendant at all times, in all manners, acted in accordance with any and all duties and obligations under New York State law and its regulations. FIFTH AFFIRMATIVE DEFENSE entities" Plaintiff does not have standing to assert claims against "any other related as alleged in the Complaint. SIXTH AFFIRMATIVE DEFENSE Plaintiff does not have standing to assert claims against Defendant as she was not employed by Defendant. RESERVATION OF RIGHTS Defendant reserves its right to raise additional defenses as may be discovered during the course of these proceedings. WHEREFORE, Defendant demands judgment in its favor: (a) finding that Plaintiff is not entitled to the relief she seeks on behalf of herself or any other individual or to any other relief; (b) dismissing the Complaint against Defendant on the merits with prejudice and in its entirety; attorneys' (c) awarding Defendant its costs and disbursements, including reasonable fees incurred in this action; and (d) granting Defendant such other and further relief as the Court may deem just and proper. 14 46705318v.2 14 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 Dated: New York, New York Respectfully submitted, August 1, 2018 SEYFARTH SHAW LLP By: /s/ Howard M Wexler Robert S. Whitman Howard M. Wexler 620 Eighth Avenue New York, New York 10018 Telephone: (212) 218-5500 Facsimile: (212) 218-5526 Attorneys for Defendant 15 46705318v.2 15 of 16 FILED: NEW YORK COUNTY CLERK 08/01/2018 09:31 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/01/2018 AFFIRMATION OF SERVICE Howard M. Wexler, an attorney duly admitted to practice law in the State of New York and before this Court and counsel for Pacific Langham New York Corporation d/b/a Langham ("Defendant" Place Fifth Avenue ("Defendant") affirms under penalty of perjury as follows: On August 1, 2018, I electronically filed the foregoing ANSWER AND OTHER DEFENSES TO THE COMPLAINT via the Court's NYSCEF system, which sent notification to the following counsel of record: Michael A. Tompkins Brett Cohen Leeds Brown Law, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 s/ Howard M Wexler Howard M. Wexler 16 46705318v.2 16 of 16