Preview
FILED: NASSAU COUNTY CLERK 12/19/2018 03:48 PM INDEX NO. 605760/2018
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/19/2018
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
COUNTY OF NASSAU
Present:
Hon. Thomas Feinman
Justice
TRIAL/IAS PART 6
WALTER HERNANDEZ BENITEZ, on behalf of NASSAU COUNTY
himself and all others similarly situated,
INDEX NO. 605760/18
Plaintiff,
MOTION SUBMISSION
- against - DATE: 10/25/18
BOLLA OPERATING LI CORP. d/b/a BOLLA MOTION SEQUENCE
MARKET, and BOLLA OPERATING CORP., NOS. 1,2
d/b/a BOLLA MARKET,
XXX
Defendants.
The following papers read on this motion:
Notice of Motion and Affidavits X
Notice of Cross-Motion and Affidavits X
Memoranda of Law X
Affirmation in Opposition X
Reply Affirmation X
Relief Requested
Motion by the plaintiff, Walter Hernandez Benitez, for an order, pursuant to CPLR , certifying
the instant matter as a class action and related relief pursuant to CPLR §§ 901 and 902. Cross motion
by the defendants, Bolla Operating LI Corp. d/b/a Bolla Market, and Bolla Operating Corp. d/b/a
Bolla Market for an order pursuant to CPLR3211(a)(7) dismissing the plaintiffs complaint in its entirety.
Background
Plaintiff, a former employee of the defendants, initiated the instant action sounding in labor
law, alleging that the defendants failed to provide spread of hours pay to himself and similarly
situated deli workers and clerks as required by the Hospitality Industry Wage Order (hereinafter
referred to as "HIWO"). The defendant claims that its employees are governed by the Miscellaneous
Wage Order (hereinafter referred to as "MWO"), as its establishments do not qualify as "restaurants"
under the HIWO.
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Applicable Law
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the
Court starts with the presumption that the allegations contained in the plaintiff's pleadings are true
(Becker v. Schwartz, 46 N.Y.2d 401). A motion for failure to state a cause of action "will fail if from
[the] complaint's four corners, [its] factual allegations are discerned which taken together manifest
any cause of action cognizable of law, regardless of whether the plaintiff will ultimately prevail on
the merits" (Gruen v. County of Suffolk, 187 A.D.2d 560).
Under the HIWO, on each day on which the spread of hours exceeds ten, an employee shall
receive one additional hour of pay at the basic minimum hourly rate (12 NYCRR § 146-1.6). The
term "restaurant" includes "any eating or drinking place that prepares and offers food or beverage
for human consumption either on any of its premises or by such service as catering, banquet, box
lunch, curb service or counter service to the public, to employees, or to members or guests of
members, and services in connection therewith or incidental thereto" (12 NYCRR § 146-3.1).
In the matter of Biasi v. Wal-Mart Stores East, LP, 2017 U.S. Dist. LEXIS 40887, the United
States District Court for the Northern District of New York analyzed the question of whether a deli
counter contained within a larger establishment should be governed by the HIWO or by the MWO.
The court in Biasi determined that the deli department within a Wal-Mart does not meet the criteria
of a "restaurant" under HIWO because the deli department did not offer food or beverage for
consumption on its premises, nor did it offer "services in connection therewith" such as catering.
Discussion
The issue here is whether the HIWO or the MWO applies to deli workers and clerks employed
by the defendants.
In determining whether to apply the HIWO or the MWO to such a deli department within a
larger retail store, the New York State Department of Labor's 2014 Labor Standards' Field
Investigator's Manual provides guidance due to the ambiguous nature of the terms of the HIWO
(hereinafter referred to as the "Manual"). The Manual states that "[a] food establishment is to be
covered under [HIWO] if it prepares and offers food to customers for immediate consumption on
its premises or in the immediate vicinity; or if it prepares and delivers individual meals or portions
of ready-to-eat food by box lunch or catering service. A food establishment that does not meet either
of these requirements is to be covered under the [MWO]."
The Manual further differentiates between a "German Style Delicatessen," which is a "type of
establishment [that] is essentially retail," to which the MWO applies, and a "Jewish Style
Delicatessen," which, by contrast, provides facilities for on-premises food consumption or engages
in catering, and are therefore considered restaurants under the HIWO.
Plaintiff alleges that customers are known to eat products that are purchased on site in the
parking lots of the defendants' locations, that one of the defendants' locations has a bench outside,
and that some other locations have either a table or an open space where customers eat and drink.
Plaintiff further alleges that meals prepared at deli departments are transported to locations without
such departments, and that such transportation, as well as the tasks of clerks who accept payment
and clean the areas where customers eat, qualify as "services in connection therewith."
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While the HIWO is afforded a broad interpretation, the existence of parking lots or a single
bench is plainly uncompelling in demonstrating that a chain of locations provides "on premises
consumption." Likewise, the transport of products between retail establishments does not
demonstrate services akin to catering. Nor does the use of clerks, who would be required to accept
payment and clean the premises regardless of whether food was offered. As such, the defendants
do not provide any catering services or other "services in connection therewith" such that their gas
station convenience stores would be subject to the HIWO.
As plaintiffs employment is covered by the MWO, and plaintiff does not meet the
requirements for spread of hours pay under the MWO, the defendants' cross motion to dismiss must
be granted. As the plaintiff has failed to state a cause of action, this court need not address his
motion for class certification.
Conclusion
Accordingly, it is hereby
ORDERED that the plaintiffs motion to certify this action as a class action and for related
relief is denied, and it is further
ORDERED that the defendant's cross motion to dismiss the plaintiffs complaint is granted.
Dated: December 18, 2018 ORIGINAL
ENTERED
DEC 1 9 2018
NASSAU COUNTY
COUNTY CLERK'S OFFICE
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FILED: NASSAU COUNTY CLERK 12/19/2018 03:48 PM INDEX NO. 605760/2018 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/19/2018 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice TRIAL/IAS PART 6 WALTER HERNANDEZ BENITEZ, on behalf of NASSAU COUNTY himself and all others similarly situated, INDEX NO. 605760/18 Plaintiff, MOTION SUBMISSION - against - DATE: 10/25/18 BOLLA OPERATING LI CORP. d/b/a BOLLA MOTION SEQUENCE MARKET, and BOLLA OPERATING CORP., NOS. 1,2 d/b/a BOLLA MARKET, XXX Defendants. The following papers read on this motion: Notice of Motion and Affidavits X Notice of Cross-Motion and Affidavits X Memoranda of Law X Affirmation in Opposition X Reply Affirmation X Relief Requested Motion by the plaintiff, Walter Hernandez Benitez, for an order, pursuant to CPLR , certifying the instant matter as a class action and related relief pursuant to CPLR §§ 901 and 902. Cross motion by the defendants, Bolla Operating LI Corp. d/b/a Bolla Market, and Bolla Operating Corp. d/b/a Bolla Market for an order pursuant to CPLR3211(a)(7) dismissing the plaintiffs complaint in its entirety. Background Plaintiff, a former employee of the defendants, initiated the instant action sounding in labor law, alleging that the defendants failed to provide spread of hours pay to himself and similarly situated deli workers and clerks as required by the Hospitality Industry Wage Order (hereinafter referred to as "HIWO"). The defendant claims that its employees are governed by the Miscellaneous Wage Order (hereinafter referred to as "MWO"), as its establishments do not qualify as "restaurants" under the HIWO. 1 of 3 FILED: NASSAU COUNTY CLERK 12/19/2018 03:48 PM INDEX NO. 605760/2018 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/19/2018 Applicable Law On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the Court starts with the presumption that the allegations contained in the plaintiff's pleadings are true (Becker v. Schwartz, 46 N.Y.2d 401). A motion for failure to state a cause of action "will fail if from [the] complaint's four corners, [its] factual allegations are discerned which taken together manifest any cause of action cognizable of law, regardless of whether the plaintiff will ultimately prevail on the merits" (Gruen v. County of Suffolk, 187 A.D.2d 560). Under the HIWO, on each day on which the spread of hours exceeds ten, an employee shall receive one additional hour of pay at the basic minimum hourly rate (12 NYCRR § 146-1.6). The term "restaurant" includes "any eating or drinking place that prepares and offers food or beverage for human consumption either on any of its premises or by such service as catering, banquet, box lunch, curb service or counter service to the public, to employees, or to members or guests of members, and services in connection therewith or incidental thereto" (12 NYCRR § 146-3.1). In the matter of Biasi v. Wal-Mart Stores East, LP, 2017 U.S. Dist. LEXIS 40887, the United States District Court for the Northern District of New York analyzed the question of whether a deli counter contained within a larger establishment should be governed by the HIWO or by the MWO. The court in Biasi determined that the deli department within a Wal-Mart does not meet the criteria of a "restaurant" under HIWO because the deli department did not offer food or beverage for consumption on its premises, nor did it offer "services in connection therewith" such as catering. Discussion The issue here is whether the HIWO or the MWO applies to deli workers and clerks employed by the defendants. In determining whether to apply the HIWO or the MWO to such a deli department within a larger retail store, the New York State Department of Labor's 2014 Labor Standards' Field Investigator's Manual provides guidance due to the ambiguous nature of the terms of the HIWO (hereinafter referred to as the "Manual"). The Manual states that "[a] food establishment is to be covered under [HIWO] if it prepares and offers food to customers for immediate consumption on its premises or in the immediate vicinity; or if it prepares and delivers individual meals or portions of ready-to-eat food by box lunch or catering service. A food establishment that does not meet either of these requirements is to be covered under the [MWO]." The Manual further differentiates between a "German Style Delicatessen," which is a "type of establishment [that] is essentially retail," to which the MWO applies, and a "Jewish Style Delicatessen," which, by contrast, provides facilities for on-premises food consumption or engages in catering, and are therefore considered restaurants under the HIWO. Plaintiff alleges that customers are known to eat products that are purchased on site in the parking lots of the defendants' locations, that one of the defendants' locations has a bench outside, and that some other locations have either a table or an open space where customers eat and drink. Plaintiff further alleges that meals prepared at deli departments are transported to locations without such departments, and that such transportation, as well as the tasks of clerks who accept payment and clean the areas where customers eat, qualify as "services in connection therewith." 2 of 3 FILED: NASSAU COUNTY CLERK 12/19/2018 03:48 PM INDEX NO. 605760/2018 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/19/2018 While the HIWO is afforded a broad interpretation, the existence of parking lots or a single bench is plainly uncompelling in demonstrating that a chain of locations provides "on premises consumption." Likewise, the transport of products between retail establishments does not demonstrate services akin to catering. Nor does the use of clerks, who would be required to accept payment and clean the premises regardless of whether food was offered. As such, the defendants do not provide any catering services or other "services in connection therewith" such that their gas station convenience stores would be subject to the HIWO. As plaintiffs employment is covered by the MWO, and plaintiff does not meet the requirements for spread of hours pay under the MWO, the defendants' cross motion to dismiss must be granted. As the plaintiff has failed to state a cause of action, this court need not address his motion for class certification. Conclusion Accordingly, it is hereby ORDERED that the plaintiffs motion to certify this action as a class action and for related relief is denied, and it is further ORDERED that the defendant's cross motion to dismiss the plaintiffs complaint is granted. Dated: December 18, 2018 ORIGINAL ENTERED DEC 1 9 2018 NASSAU COUNTY COUNTY CLERK'S OFFICE 3 of 3