X SANDRO MA Y9RAL-CLIMICO, on behalf of hims~lf and others similarly situated, I

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1 SUPREME COUJT OF THE STATE OF NEW YORK I COUNTY OF NEJW YORK-COMMERCIAL DIVISION X SANDRO MA Y9RAL-CLIMICO, on behalf of hims~lf and others similarly situated, I Plaintiff, I i -against- NINTH A VENUE ' WINGS INC. d/b/a AtoJtic Wings; PARK WINGS ~C. d/b/a Atorflic Wings; ATOMIC WINGS FRANCHISOR, INC. d/b/a Atotbic Wings; ADAM LIPPIN, itnd YOUNG Q PARI1c, I Defendants j X I I SUMMONS AND COMPLAINT Index No. John Troy Attorney for Plaintiff Kissena Boulevard, Suite 119 Flushing, NY Tel (718) i Pursuant to 22 N~CRR 130-1/aa, the undersigned, ah attorney admitted to practice in the court of New York State, certifies that, upon information and belief and reasonable inquiry, the I contentions contaihed in the annexed documents are not frivolous.! Dated: Septembe~ 5, '-/"'-s/,j"'o-"'hn~t...,ro"-'y' Flushing, ~y John Troy Service of the cojy of the within Dated: / I is hereby admitted. Attorney for PLEASE TAKE $once ( thjt within is a (certified copy of) Notice of thj within named court on entered in the office of the clerk entry / ( ) that an order of which the within is a true copy with be Notice of pr6sented for settlement to one of the Judges of within Settlement cdurt at am. Dated: John Troy Attorney for the Plaintiff Kissena Boulevard, Suite 119 Flushing, NY (718) of 27

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK-COMMERCIAL DIVISION )( SANDRO MA YORAL-CLIMICO, on behalf of himself and others similarly situated, Plaintiff, -against NINTHAVENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK, Defendants )( SUMMONS To the above-named Defendant(s): NINTH A VENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK, at 528 9TH A VENUE, NEW YORK, NY You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs attorney within 20 days after the service of this summons, e)(clusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State ofnew York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis ofvenue is the residence of Corporate Defendants, which is New York County, pursuant to CPLR 503. Dated: September 5, Respectfully submitted, TROY LAW, PLLC Is/ John Troy John Troy Kissena Boulevard, Suite 119 Flushing, NY (718) Attorney for Plaintiff IT roy 1 Complaint 2 of 27

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK-COMMERCIAL DIVISION )( SANDRO MA YORAL-CLIMICO, on behalf of himself and others similarly situated, Plaintiff, -against NINTH A VENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK, Defendants. CPLR 904 CLASS ACTION COMPLAINT ~ )( INTRODUCTION 1. Plaintiff SANDRO MA YORAL-CLIMICO ("Plaintiff'), by and through his counsel, TROY LAW, PLLC, upon personal knowledge and information and belief, brings this class action complaint on behalf of himself and all other similarly-situated individuals to recover unpaid wages against Defendants NINTH A VENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK (collectively "Defendants"). JURISDICTION AND VENUE 2. Jurisdiction is proper in this court because Corporate Defendants are residents of the State of New York, County of New York. 3. Venue is proper in this court pursuant to CPLR 503, because Defendants conduct business in the State of New York, County of New York. PROCEDURAL HISTORY Tiroy 2 Complaint 3 of 27

4 4. This action was commenced in the United States District Court for the Southern District of New York, with the filing of a complaint on August 24, SDNY 1: 16-cv The above-referenced federal complaint was timely filed, because August 24,2016 was within six (6) years of the events complained of, pursuant to NYLL. 6. Subsequently, on June 27, 2017, all of Plaintiffs claims against Defendants NINTH A VENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK were dismissed without prejudice. SDNY 1:16-cv Plaintiffs claims against Defendants NINTH AVENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK were not dismissed for any of the following reasons: voluntary discontinuance pursuant to CPLR 3217, failure to obtain personal jurisdiction over the defendants, neglect to prosecute the action, or final judgment upon the merits. 8. This New York complaint is timely filed under CPLR 205(a), because it is filed within six (6) months ofthe dismissal of the federal claims against Defendants NINTH AVENUE WINGS INC. d/b/a Atomic Wings; PARK WINGS INC. d/b/a Atomic Wings; ADAM LIPPIN, and YOUNG Q PARK. PARTIES PLAINTIFF SANDRO MAYORAL-CLIMICO 9. PlaintiffSANDRO MA YORAL-CLIMICO is a resident of Bronx County, New York and resides at 945 E 163rd Street, Apt 5E, Bronx, NY At all times relevant to this action, Plaintiff was an employee within the meaning of the New York Labor Law ("NYLL") and New York Codes, Rules, and Regulations ("NYCRR"). CORPORATE DEFENDANTS IT roy 3 Complaint 4 of 27

5 11. Defendant NINTH A VENUE WINGS INC d/b/a Atomic Wings is a domestic business corporation organized under the laws of the State ofnew York with a principal address at 528 9TH AVENUE, NEW YORK, NY Defendant PARK WINGS INC d/b/a Atomic Wings is a domestic business corporation organized under the laws of the State of New York with a principal address at 528 9TH AVENUE, NEW YORK, NY FRANCHISOR DEFENDANTS 13. Defendant ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings is a foreign business corporation organized under the State ofnew Jersey with a principal address at 311 Broadway, New York, NY ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings is the franchisor of, among other Atomic Wings locations, KNS WING TIME, INC. d/b/a Atomic Wings. 15. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings is a business engaged in interstate commerce that has gross sales in excess of Five Hundred Thousand Dollars ($500,000) per year. 16. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings purchased and handled goods moved in interstate commerce. OWNER/OPERATOR DEFENDANTS 17. The Individual Defendant is an officer, director, manager, majority shareholder and/or owner of the Defendant NINTH A VENUE WINGS INC d/b/a Atomic Wings; and PARK WINGS INC d/b/a Atomic Wings. 18. As one of the ten largest shareholders, the officer, director, manager, majority shareholder and/or owner, each of the Owner/ Operator Defendant is individually responsible for unpaid wages under the New York Business Corporation Law. Tiroy 4 Complaint 5 of 27

6 19. Owner/ Operator Defendant ADAM LIP PIN (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employee records. 20. Owner/ Operator Defendant ADAM LIPPIN acted intentionally and maliciously and is an employer pursuant to FLSA, 29 U.S.C. 203d, and regulations promulgated thereunder, 29 C.P.R , NYLL 2 and the regulations thereunder, and is jointly and severally liable with NINTH A VENUE WINGS INC d/b/a Atomic Wings. 21. Owner/ Operator Defendant YOUNG Q PARK (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employee records. 22. Owner/ Operator Defendant YOUNG Q PARK acted intentionally and maliciously and is an employer pursuant to FLSA, 29 U.S.C. 203d, and regulations promulgated thereunder, 29 C.F.R , NYLL 2 and the regulations thereunder, and is jointly and severally liable with PARK WINGS INC d/b/a Atomic Wings. FACTS Franchise Agreement Between Defendant ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings and Defendant KNS WING TIME, INC. d/b/a Atomic Wings 23. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings holds its franchisees to a strict "System" of requirements. 24. Among these requirements are menu items, recipes and food preparation and service techniques; special decor elements, layout, furniture, color schemes and designs; standards and specifications for equipment, equipment layouts and interior and exterior accessories; and, IT roy 5 Complaint 6 of 27

7 crucially, a manager and employee training program, operating procedures and standards and specifications. 25. Initial franchisees must complete a three-day orientation program, known as the Initial Franchise Orientation Program ("IFOP") prior to opening their first franchised restaurant. The IFOP is conducted at an established Atomic Wings location in New York, NY, or at a designated training facility. 26. Franchisees must become certified in the IFOP if they wish to open their first Atomic Wings restaurant, and must have an!fop-certified trainer on staff to train managers and employees of any further Atomic Wings restaurants opened by a franchisee. 27. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings bears all expenses for the IFOP that it provides at its designated training facilities; franchisors are responsible for the salaries, benefits, travel, living, and other expenses incurred while attending training. 28. Franchisors are required to conduct initial and continuing training programs for their employees as ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings may require, including training programs required for employees to become certified for the positions for which they were hired. 29. The training of any managerial personnel trained by a franchisee must be reviewed by a field staffer of ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings. 30. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings employees are entitled to periodically visit the franchisee to ensure that its trainers continue to meet ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings standards. 31. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings is entitled to decertify any franchisee employees, from restaurant manager to hourly employee, who consistently fails to Tiroy 6 Complaint 7 of 27

8 maintain System standards. 32. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings is entitled to direct newlyopening franchisees with regard to employee hiring and training. 33. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings periodically directs franchisees regarding the ongoing operation of the franchised restaurants. This direction is provided via visits of ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings representatives to the franchised restaurant, the distribution of printed or filmed material, electronically, telephonically, and otherwise. 34. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings designates certain menu items as mandatory, in the interest of maintaining brand and service uniformity across franchise locations. Employees are thus compelled to prepare and serve or deliver these menu items. 35. Franchisees are obligated to enforce employee dress and appearance standards set by ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings inspects compliance with these standards along with compliance with employee training and performance standards. 36. Inspections carried out by ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings include the following: physical inspection of the premises, interviews of employees, and review of business records. Franchisees are required to give inspectors unrestricted access and to render any such assistance as the inspector reasonably requests. 37. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings requires that franchisees comply with the employment laws. 38. ATOMIC WINGS FRANCHISOR, INC. d/b/a Atomic Wings furnishes its franchisees with a detailed manual containing the System standards franchisees are expected to follow. IT roy 7 Complaint 8 of 27

9 39. Defendants committed the following alleged acts knowingly, intentionally and willfully against the Plaintiff, the FLSA Collective Plaintiffs, and the Class. PlaintiffSANDRO MAYORAL-CLIMICO 40. From on or about February 15,2009 to on or about December 31,2010, Plaintiff SANDRO MA YORAL-CLIMICO was employed to work as a de liveryman at NINTH A VENUE WINGS INC d/b/a Atomic Wings located at 528 9TH A VENUE, NEW YORK, NY From on or about February 15,2009 to on or about December 31,2010, Plaintiff SANDRO MA YORAL-CLIMICO regularly worked from: a. 11:00 to 23:30 for twelve and a half (12.5) hours for six (6) days, with one day Off, not fixed, for seventy five (75) hours per week. 42. From on or about February 15, 2009 to on or about December 31, 2010, Plaintiff SANDRO MA YORAL-CLIMICO did not have a fixed break for lunch or for dinner. 43. From on or about February 15,2009 to on or about December 31,2010, Plaintiffwas paid a flat rate of Two Hundred and Seventy Dollars ($270) per week. 44. While the flat rate sometimes varied, Plaintiff was always paid around Two Hundred and Seventy Dollars ($270) per week. 45. From on or about February 15, 2009 to on or about December 31,2010, Plaintiff was not informed of his hourly pay rate or any tip deductions toward the minimum wage, and he was not paid overtime pay for overtime work. 46. From on or about February 15, 2009 to on or about December 31, 2010, Defendants never informed Plaintiff that they were taking tip credit towards the minimum wage. Tiroy 8 Complaint 9 of 27

10 47. Further, from on or about February 15, 2009 to on or about December 31, 2010, Plaintiff had to wash dishes and containers, sweep and mop the floor, clean the street, clear the table, throw out garbage each day from the store to outside to be picked up by the garbage truck, and fill the refrigerators with drinks; keep the food in the refrigerator, put new vegetables in the refrigerator, stock sauces, close the store, and move three (3) boxes of fifty (50) pound raw chicken from the basemen to the store. 48. From on or about February 15, 2009 to on or about December 31, 2010, Plaintiffs nontipped work exceeds five (5) hours of each Plaintiffs workday. 49. From on or about January 2011 to July 2013, PlaintiffSANDRO MA YORAL-CLIMICO was employed to work as a deliveryman at PARK WINGS INC d/b/a Atomic Wings located at 528 9TH AVENUE, NEW YORK, NY From on or about January 2011 to May 2011, Plaintiff SANDRO MA YORAL-CLIMICO regularly worked from: 10:00 to 23:00 for thirteen (13) hours for six (6) days, with one day Off, not fixed, for seventy eight (78) hours per week. 51. From on or about January 2011 to May 2011, PlaintiffSANDRO MAYORAL-CLIMICO did not have a fixed break for lunch or for dinner. 52. From on or about January 2011 to May 2011, Plaintiff was paid Five Dollars and Sixty Five Cents ($5.65) per hour. 53. From on or about January 2011 to May 2011, Plaintiffwas not informed of his hourly pay rate or any tip deductions toward the minimum wage, and he was not paid overtime pay for overtime work. 54. From on or about January 2011 to May 2011, Defendants never informed Plaintiff that they were taking tip credit towards the minimum wage. IT roy 9 Complaint 10 of 27

11 11 of Further, from on or about January 2011 to May 2011, P1aintiffhad to wash dishes and containers, sweep and mop the floor, clear the table, throw out garbage, unload the soft drinks that YOUNG Q PARK has bought in bulk from his car to the store; stocking all the soft drinks in the refrigerators; keep the food in the refrigerator, put new vegetables in the refrigerator, stock sauces, close the store, and move three (3) boxes of fifty (50) pound raw chicken from the basemen to the store. 56. From on or about January 2011 to May 2011, Plaintiffs non-tipped work exceeds five (5) hours of each Plaintiffs workday. 57. From on or about June 2011 to June 2013, PlaintiffSANDRO MAYORAL-CLIMICO regularly worked from: a. 10:00 to 17:00 for seven (7) hours from Mondays through Fridays for five (5) days, for thirty five (35) hours per week; and b. 11 :00 to 18:00 for seven (7) hours on Saturdays and Sundays for two (2) days for fourteen (14) hours per week. 58. From on or about June 2011 to June 2013, PlaintiffSANDRO MAYORAL-CLIMICO regularly worked forty nine ( 49) hours per week. 59. From on or about June 2011 to June 2013, PlaintiffSANDRO MA YORAL-CLIMICO did not have a fixed break for lunch or for dinner. 60. From on or about June 2011 to July 2013, Plaintiff was paid Five Dollars and Sixty Five Cents ($5.65) per hour. 61. From on or about January 2011 to July 2013, Plaintiff was not informed of his hourly pay rate or any tip deductions toward the minimum wage, and he was not paid overtime pay for overtime work. Tiroy 10 Complaint

12 12 of From on or about January 20II to July 2013, Defendants never informed Plaintiffthat they were taking tip credit towards the minimum wage. 63. Further, Plaintiff had to wash dishes and containers, sweep and mop the floor, clear the table, throw out garbage, unload the soft drinks that YOUNG Q PARK has bought in bulk from his car to the store; stocking all the soft drinks in the refrigerators; keep the food in the refrigerator, put new vegetables in the refrigerator, stock sauces, close the store, and move three (3) boxes of fifty (50) pound raw chicken from the basemen to the store. 64. Plaintiff's non-tipped work exceeds two and one half (2.5) hours of each Plaintiff's workday. 65. Plaintiff was not compensated at least at one-and-one-half of the minimum wage or his calculated hourly wage, whichever is greater, for all hours worked above forty ( 40) in each workweek. 66. Plaintiffwas not compensated for New York's "spread of hours" premium for shifts that lasted longer than ten (I 0) hours. 67. From on or about January 20II to July 2013, YOUNG Q PARK paid PlaintiffSANDRO MA YORAL-CLIMICO. 68. In July 2013, YOUNG Q PARK fired PlaintiffSANDRO MAYORAL-CLIMICO because YOUNG Q PARK painted the basement with oil paint and opened business in the morning. And one day the floor was covered with water and when Plaintiff SANDRO MA YORAL-CLIMICO carried the goods that the store needs upstairs, Plaintiff SANDRO MA YORAL-CLIMICO slipped and hit his back on a piece of concrete. And when Plaintiff SANDRO MA YORAL-CLIMICO advised the cashier that he was hit, and that he needed to take IT roy II Complaint

13 two to three days off. When Plaintiff SANDRO MA YORAL-CLIMICO returned to work, YOUNG Q PARK advised SANDRO MA YORAL-CLIMICO that he was fired. 69. Plaintiffwas not assigned a fixed meal break for lunch. Plaintiff had no meal break. 70. Plaintiff was paid Five Dollars and Sixty Five Cents ($5.65) per hour. 71. At all relevant times, Plaintiff was not informed of his hourly pay rate or any tip deductions toward the minimum wage, and he was not paid overtime pay for overtime work. 72. Defendants never informed Plaintiff that they were taking tip credit towards the minimum wage. 73. Further, Plaintiff has to wash dishes and containers, sweep and mop the floor, clear the table, throw out garbage, keep the food in the refrigerator, put new vegetables in the refrigerator, stock sauces, close the store, and move three (3) boxes of fifty (50) pound raw chicken from the basemen to the store. 74. Plaintiffs non-tipped work exceeds two and one half (2.5) hours of each Plaintiffs workday. 75. Plaintiff was not compensated at least at one-and-one-half of the minimum wage or his calculated hourly wage, whichever is greater, for all hours worked above forty ( 40) in each workweek. 76. Plaintiff was not compensated for New York's "spread of hours" premium for shifts that lasted longer than ten (10) hours. 77. As part ofplaintiffs employment with NINTH AVENUE WINGS INC d/b/a Atomic Wings and PARK WINGS INC d/b/a Atomic Wings, Plaintiff was required to bear the cost of the purchase of an electric bicycle (26A Arrow E Bike with Frame M and Battery 9108 Tiroy 12 Complaint 13 of 27

14 from MNC E-BIKE at 287 Broome Street, New York, NY 10002) for a total of One Thousand Four Hundred Twenty Dollars and Eighty One Cents ($ ). CLASS ALLEGATIONS 78. Pursuant to Article 9 of the CPLR, Plaintiff brings this section as a class action, on behalf of all individuals who were employed by Defendants and owed minimum wage and/or overtime within six years before the filing of this complaint or such prior date as set by the Court due to the tolling of claims as a result of a previously filed action. ASCERT AINABILITY 79. The number and identity of the Class member as determinable from the records of Defendants. The hours assigned and worked, the positions held, and the rate of pay for each Class member is also determinable from Defendants' records. For purposes of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under CPLR 904. NUMEROSITY 80. The proposed class is so numerous that joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. Thought the precise number of such persons is unknown, and the facts on which the calculation of the number can be based are presently within the sole control of the Defendants, upon information and belief, there are more than forty (40) members ofthe class. COMMONALITY 81. Common questions of law and fact exist as to members ofthe Class which predominate over questions affecting only individual members of the Class, including, but not limited to, the following: a. Whether Defendants employed the Class members within the meaning of New Tiroy 13 Complaint 14 of 27

15 15 of 27 York law; b. What are and were the policies, practices, programs, procedures, protocols, and plans ofdefendants regarding the compensation of Class members; c. Whether Defendants failed to pay the Class members minimum wage; d. Whether Defendants failed to pay the Class members their earned wages; e. Whether Defendants failed to pay the Class members overtime; f. Whether Defendants failed to pay the Class members spread of hours; g. Whether Defendants failed to provide the Class members with time of hire notice; h. Whether Defendants failed to provide the Class members with paystubs; 1. Whether Defendants failed to provide the Class members with adequate meal breaks; and J. Whether Defendants failed to provide the Class members with uniform maintenance or uniform maintenance pay TYPICALITY 82. Plaintiffs claims are typical of those claims which could be alleged by any member of the Class, and the relief sought is typical of the relief which would be sought by each member of the Class in separate actions. All the Class members were subject to the same corporate practices of Defendants, as alleged herein. Defendants' corporate-wide policies and practices affected all Class members similarly, and Defendants benefitted from the same type of unfair and/or wrongful acts as to each Class member. Plaintiff and other Class members sustained similar losses, injuries and damages arising from the same unlawful policies, practices, and procedures. ADEQUACY 83. Plaintiff is an adequate representative of the Class, will fairly protect the interest of other members of the Class, has no interests antagonistic to the members of the Class, and will Tiroy 14 Complaint

16 16 of 27 vigorously pursue this suit via attorneys who are competent, skilled, and experienced in litigating matters of this type. Class counsel are competent and experienced in litigating large employment law class actions. SUPERIORITY 84. The nature of this action makes the use of the class action vehicle a particularly efficient and appropriate procedure to afford relief to Plaintiff and the other members of the Class for the wrongs alleged herein, as follows: a. This case involves a large corporate Defendant and a large number of individual Class members with many relatively small claims and common issues of law and fact; b. If each individual Class member were required to file an individual lawsuit, Defendants would necessarily gain an unconscionable advantage because, with their vastly superior financial and legal resources, they would be able to exploit and overwhelm the limited resources of each individual member of the Class; c. Requiring each individual member of the Class to pursue an individual remedy would also discourage the assertion of lawful claims by members of the Class who would be disinclined to pursue an action against Defendants who are Class members' current or former employers, because of an appreciable and justifiable fear of retaliation; d. The prosecution of separate actions by the individual members of the Class, even if possible, would create a substantial risk of inconsistent or varying verdicts or adjudications with respect to the individual members of the class against Defendants, would establish potentially incompatible standards of conduct for Defendants, would result in legal determinations with respect to individual members of the Class, which would, as a practical matter, be dispositive of the interest of other member members of the Class who are not parties to the adjudications, and/or would substantially impair or IT roy 15 Complaint

17 impede the ability of the members of the Class to protect their own interests; e. Furthermore, as the damages suffered by each individual members of the Class are relatively small, the expense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them, while an important public interest will be served by addressing the matter as a class action; and f. The costs to the court system of adjudication of such individualized litigation would be substantial. 85. Plaintiff intends to send notice to all members of the Class as required by Article 9 of the CPLR. STATEMENT OF CLAIMS COUNT I. [Violations of the New York Labor Law-Nonpayment of Minimum Wage Brought on behalf of the Plaintiff and the Class] 86. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 87. At all relevant times, Plaintiff was employed by Defendants within the meaning ofnyll NYLL 2 and At all relevant times, Defendants had a policy and practice of refusing to pay the statutory minimum wage to Plaintiff and the Class for some or all of the hours they worked. 89. Defendants knowingly and willfully violated Plaintiffs and similarly-situated Class Members' rights by failing to pay them minimum wages in the lawful amount for hours worked. 90. After April9, 2011, under the New York Wage Theft Prevention Act 2009 N.Y. S.N. 8380, an employer who fails to pay the minimum wage shall be liable, in addition to the amount of any underpayments, for liquidated damages equal to one hundred percent ( 100%) of the Tiroy 16 Complaint 17 of 27

18 shortfall plus interest. COUNT II. [Violations of the New York Labor Law-Nonpayment of Overtime Brought on behalf of the Plaintiff and the Class] 91. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 92. After April9, 2011, under the New York Wage Theft Prevention Act 2009 N.Y. S.N. 8380, an employer who fails to pay overtime shall be liable, in addition to the amount of any underpayments, for liquidated damages equal to one hundred percent (100%) ofthe shortfall plus interest. 93. At all relevant times, Defendants had a policy and practice of refusing to pay overtime at one and one-halftimes (1.5x) Plaintiff's and the Class Members' regular hourly rate or the minimum wage, whichever is greater. 94. Defendants' failure to pay overtime violated the NYLL. 95. Defendants' failure to pay overtime was not in good faith. COUNT III. [Violation of New York Labor Law-Failure to Pay Spread of Hours Brought on behalf of the Plaintiff and the Class] 96. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 97. The NYLL requires employers to pay an extra hour's pay for every day that an employee works an interval in excess often hours pursuant to NYLL 190, et seq., and 650, et seq., and 12 NYCRR Defendants' failure to pay Plaintiff his spread-of-hours pay was not in good faith. TTroy 17 Complaint 18 of 27

19 COUNT IV. [Breach of Implied Contract for Reimbursement of all Costs and Expenses of Electric Delivery Vehicle, including Depreciation, Insurance, Maintenance and Repairs] 99. Plaintiffre-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein Throughout the relevant period, Defendants required their deliverymen to bear all of the "out-of-pocket" costs associated with their vehicles, including the purchase, maintenance, repair, maintenance of the delivery vehicles, including bicycles and electric bicycles Based on his personal experience and available information, Plaintiff can document actual "out-of-pocket" vehicle related expenses of his electricity delivery bicycle The conduct of Defendants, and the course of Defendant's conduct between the parties, evidenced an intent for Plaintiff to maintain the delivery vehicle in working condition Plaintiff purchased, maintained and repaired the electric bicycle at his own expense Plaintiff performed these deliveries for the sole benefit of the Defendants Defendants neither explicitly nor implicitly requested Plaintiff to cease the purchase of gasoline and/or the maintenance of the vehicle As a result of the afore-alleged conduct of the parties, an implied contract arose between them the terms of which are that Plaintiff would incur the expenses for bicycle purchase and vehicle maintenance, in exchange for compensation from Defendants for such expenses Defendants never compensated Plaintiff for any expenses incurred from the purchase and maintenance of the electric bicycles, and the purchase ofbatteries. As a result, Defendants breached the implied contract by failing and refusing to pay Plaintiff a reasonable sum under the afore-alleged facts Defendants owe Plaintiff his overdue costs of delivery vehicles, cost of batter change, if applicable, and maintenance of the bicycle. Tiroy 18 Complaint 19 of 27

20 COUNTV. [Violation of New York Labor Law-Failure to Provide Meal Periods Brought on behalf of the Plaintiff and the Class] I 09. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. II 0. The NYLL requires that employees provide: a noon day meal period of at least thirty (30) minutes for employees who work a shift of more than six hours extending over the noon day meal period from II a.m. to 2 p.m.; an additional meal period between 5 p.m. and 7 p.m. of at least twenty (20) minutes for employees whose shift started before II a.m. and continues later than 7 p.m.; and/or a forty-five (45) minute meal period at a time midway between the beginning and end of the shift for employees whose shift lasts more than six hours and starts between 1 p m. and 6 a.m. NYLL Defendants failed to provide meal periods required by NYLL 162 for every day that Plaintiff and the Rule 23 class work or worked Though the Department of Labor commissioner may permit a shorter time to be fixed for meal periods than hereinbefore provided, such permit must be in writing and be kept conspicuously posted in the main entrance of the establishment. No such permit is posted Defendants' failure to provide the meal periods required by NYLL 162 was not in good faith. COUNT VI. [Violation of New York Labor Law-Failure to Keep Records Brought on behalf of the Plaintiff and the Class] 114. Plaintiffre-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein Defendants did not maintain, establish and preserve Plaintiffs weekly payroll records for a period of not less than six years, as required by 12 NYCRR I IT roy 19 Complaint 20 of 27

21 21 of As a result of Defendants' unlawful conduct, Plaintiff has sustained damages including loss of earning, in an amount to be established at trial, liquidated damages, prejudgment interest, costs and attorneys' fee, pursuant to the state law Upon information and belief, Defendants failed to maintain adequate and accurate written records of actual hours worked and true wages earned by Plaintiff in order to facilitate their exploitation of Plaintiffs labor Defendants' failure to maintain adequate and accurate written records of actual hours worked and true wages earned by Plaintiff was not in good faith. COUNT VII. [Violation of New York Labor Law-Failure to Provide Time of Hire Wage Notice Brought on behalf of the Plaintiff and the Class] 119. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein The NYLL and supporting regulations require employers to provide written notice of the rate or rates of pay and the basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as a part of minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer; the name of the employer; any "doing business as" names used by the employer; the physical address of employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer. NYLL 195-1(a) Defendants intentionally failed to provide notice to employees in violation ofnyll 195, which requires all employers to provide written notice in the employee's primary language about the terms and conditions of employment related to rate of pay, regular pay cycle and rate of overtime on their or her first day of employment Defendants not only did not provide notice to each employee at Time of Hire, but failed to Tiroy 20 Complaint

22 provide notice to Plaintiff even after the fact Due to Defendants' violations ofnew York Labor Law, each Plaintiff is entitled to recover from Defendants, jointly and severally, $50 for each workday that the violation occurred or continued to occur, up to $5,000, together with costs and attorneys' fees pursuant to New York Labor Law. NYLL 198(1-b). COUNT VIII. [Violation of New York Labor Law-Failure to Provide Pay Stub Brought on behalf of the Plaintiff and the Class] 124. Plaintiffre-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein The NYLL and supporting regulations require employers to provide detailed paystub information to employees every payday. NYLL 195-1(d) Defendants have failed to make a good faith effort to comply with the New York Labor Law with respect to compensation of each Plaintiff, and did not provide the paystub on or after each Plaintiff's payday Due to Defendants' violations ofnew York Labor Law, each Plaintiff is entitled to recover from Defendants, jointly and severally, $250 for each workday of the violation, up to $5,000 for each Plaintiff together with costs and attorneys' fees pursuant to New York Labor Law. NYLL 198(1-d). COUNT IX. [Violation of New York Codes, Rules, and Regulations-Failure to Provide Uniform Maintenance Brought on behalf of the Plaintiff and the Class] 128. Plaintiffre-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein The wage provisions of Article 19 of the New York Labor Law and its supporting IT roy 21 Complaint 22 of 27

23 regulations, including the current New York Hospitality Industry Wage Order, 12 N. Y.C.R.R. Part 146 and former New York Minimum Wage Order for the Restaurant Industry, 12 N. Y.C.R.R. Part 137, apply to Defendants and establish payment floors to protect Plaintiff and all Class Members Defendants have and continue to furnish Plaintiff and Class Members with an insufficient number of uniforms while requiring Plaintiff and Class Members to maintain the uniforms at their own expense, in violation of the uniform maintenance pay provision of the current New York Hospitality Industry Wage Order, 12 N.Y.C.R.R and former New York Minimum Wage Order for the Restaurant Industry, 12 N.Y.C.R.R Defendant's failure to pay Plaintiff and Class Members uniform maintenance pay required pursuant to 12 N.Y.C.R.R and 12 N.Y.C.R.R , notwithstanding Defendants' clear failure to satisfy any exceptions to the requirement to provide such pay under the regulation, was and is not in good faith within the meaning of New York Labor Law Plaintiff and Class Members are therefore entitled to recover from Defendants their unpaid uniform maintenance pay, together with liquidated damages, interest, and reasonable attorneys' fees and costs of the action. COUNT X. [Violations of the New York General Business Law-Deceptive Acts and Practices Brought on behalf of the Plaintiff] 133. Plaintiff re-alleges and incorporate by reference all preceding paragraphs as though fully set forth herein NY General Business Law 349 provides that if any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such a return Due to Defendants' violations of NYGBS 349, Plaintiff is entitled to recover from Defendants, jointly and severally, his actual damages or fifty dollars ($50), whichever is greater, Tiroy 22 Complaint 23 of 27

24 or both such actions Plaintiff demands the right to examine, in person or by attorney, the minutes of the proceedings of the shareholders and records of shareholders of Defendant Corporations to recover wages owed as employees of the corporations. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and the Class, respectfully requests that this Court enter a judgment providing the following relief: a) Authorization of Plaintiff at the earliest possible time to give notice of this class action, or that the Court issue such notice, to all persons who are presently, or have been employed by Defendants as non-exempt employees. Such notice shall inform them that the civil suit has been filed, of the nature of the action, of their right to join this lawsuit if they believe they were the victims of Defendants failures to pay them their deserved hourly compensation and premium overtime wages; b) Certification ofthis case as a class action pursuant to Article 9 ofthe CPLR; c) Designation of Plaintiff as representative of the Rule 23 Class, and counsel of record as Class counsel; d) A declaratory judgment that the practices complained of herein are unlawful undernyll; e) A permanent injunction against Lucky's Famous Burgers, its officers, agents, successors, employees, representatives and any and all persons acting in concert with them as provided by law, from engaging in the violation of the NYLL and NYCRR; IT roy 23 Complaint 24 of 27

25 f) An award of illegal meal credit, plus compensatory and liquidated damages in the amount of twenty-five percent under NYLL 190 et seq., 650 et seq., and one hundred percent after April 9, 2011 under NY Wage Theft Prevention Act, and interest; g) An award of Uniform Maintenance Pay, plus compensatory and liquidated damages in the amount of twenty-five percent under NYLL 190 et seq., 650 et seq., and one hundred percent after April9, 2011 under NY Wage Theft Prevention Act, and interest; h) An award ofunpaid minimum wages, unpaid overtime, and unpaid spread of hours due under NYLL and the regulations promulgated hereunder; i) An award ofliquidated and/ or punitive damages as a result of Defendants' willful failure to pay minimum wage, overtime, and spread of hours pursuant to NYLL; j) An award of costs and expenses ofthis action together with reasonable attorneys' and expert fees pursuant to NYLL 198 and 663; k) An award to reimburse Plaintiff's document out-of-pocket delivery vehicle costs, pursuant to the implied contract which arose between Plaintiff and Defendants; 1) The cost and disbursements of this action; m) An award of prejudgment and post-judgment fees; n) Providing that if any amounts remain unpaid upon the expiration of ninety days following the issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent, as required by NYLL 198( 4 ); and Tiroy 24 Complaint 25 of 27

26 26 of 27

27 STATE OF NEW YORK, COUNTY OF QUEENS I, Sandro Mayoral-Climico, am the Plaintiff in this action. I have read the foregoing complaint and know the contents thereof. The material allegations are within my personal knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. Subscribed and sworn to ( before me this 5th. day of, }\A, ff::,20.11_ Plaintiffs Signature JOHN TROY "'Nota{Y Public, State of New Y.ork No. 02TR '. Qualified in O:ueens Go~n~o-z::' commission Exp rl)(ft y' - 27 of 27