FILED NEW YORK COUNTY CLERK 09/08/2016 1205 PM INDEX NO. 654752/2016 NYSCEF DOC. NO. 3 RECEIVED NYSCEF 09/08/2016 SUPREME COURT OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x MARGO STANKUS Individually and on Behalf of All Other Persons Similarly Situated, v. Plaintiff, QUIK PARK MANAGEMENT LLC, QUIK PARK MANAGEMENT HOLDINGS LLC, AND QUIK PARK TRUFFLES LLC, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x NYSECF CASE Index No. 654752/2016 ARTICLE 9 CLASS ACTION FIRST AMENDED COMPLAINT JURY TRIAL DEMANDED NATURE OF ACTION 1. Plaintiff Margo Stankus ( Stankus ) alleges and asserts on behalf of herself and other similarly situated individuals the following allegations and claims under N.Y. Gen. Bus. Law 518 and 349 against Defendants Quik Park Management LLC, Quik Park Management Holdings LLC and Quik Park Truffles LLC (collectively Quik Park ). THE PARTIES 2. Plaintiff Stankus is an individual adult who resides in Pearl River, New York, New York, Rockland County, and is Class Member (as defined below). 3. Defendant Quik Park Management LLC has its principal place of business at 247 W. 37th Street, 6th Floor, New York, New York 10018. 4. Defendant Quik Park Management Holdings has its principal place of business at 247 W. 37th Street, 6th Floor, New York, New York 10018. 5. Defendant Quik Park Truffles has its principal place of business at 247 W. 37th Street, 6th Floor, New York, New York 10018. -1-1 of 15
6. Quik Park is one of the largest operators of parking garages in the State of New York with 90 or more locations, predominantly in New York City. JURISDICTION AND VENUE 7. This Court has jurisdiction over this matter because Quik Park Management, Quik Park Management Holdings and Quik Park Truffles, upon information and belief, are corporations that are licensed to do and do do business in the State of New York, and a substantial part of the events or omissions giving rise to the claims occurred in New York County. 8. This Court has jurisdiction over Quik Park Management, Quik Park Management Holdings and Quik Park Truffles because they are physically present in the State of New York, have sufficient minimum contacts with New York, and otherwise intentionally avail themselves of the laws and markets of New York through operating their parking garages in New York. 9. Venue is proper in this Court because Quik Park Management, Quik Park Management Holdings and Quik Park Truffles alleged conduct occurred in, was directed from, and emanated from New York County. STATEMENT OF FACTS 10. While certain garages exist under different corporate entities, Quik Park owns and operates all of them and, to that end, has unified and centralized control over each location, including setting parking rates, collecting parking fees from customers, hiring procedures, advertising, centralized management, and listing all locations on their website (www.quckparkgarages.com). Quick Park s own website states it rapidly grew to become one of New York City s premier parking facility owner and operator. It s -2-2 of 15
website further states Quick Park s CEO, Rafael Llopiz oversees and administers over 140 parking facilities throughout the New York City area. (last visited August 21, 2016). 11. Many, if not all, of the different corporate entities list the same address with the New York State Department of State, Division of Corporations 247 West 37th Street, New York, New York 10018. 12. Quik Parks treats all of the separate entities as one conglomeration, has complete domination and control over the day-to-day operations of the other entities. 13. The separate entities and Quik Parks, upon information and belief, integrate their finances, commingle assets, and the principals treat the separate entities as one. 14. Quik Park Truffles is one of those entities. 15. Quik Park imposes a surcharge at approximately all of its 140 parking garages for customers who pay their parking garage hourly fees with a credit or debit card. The surcharge fee is presently $2.00 per transaction. 16. On August 8, 2016, Stankus parked her motor vehicle on an hourly basis at Quik Park s parking garage located at 312 West 34th Street, New York, New York, and she paid her hourly parking garage fees by a credit card. 17. Quik Park Truffles is the separate corporate entity Quik Park created for the garage located at 312 West 34th Street, New York, New York. 18. Quik Park charged Stankus an extra $2.00 fee as a direct consequence of paying the hourly fee with her credit card. She was not eligible for the super early bird or early bird rate. -3-3 of 15
19. At its 312 West 34th Street, New York, New York garage, Quik Park has posted a sign that states Fee Notice Process fee applicable to all hourly rates, special rates and coupon rates. This fee will be waived on all super early bird, early bird and cash transactions $2.00. (A picture of the sign is attached as Exhibit A). 20. Quick Park, upon information and belief, has the same or similar sign posted at all of its parking garages in the State of New York. 21. While Quik Park denominates the $2.00 fee as a processing fee, it is, in fact, a surcharge since the fee is applicable to credit and debit card payments for its hourly customers (with the minor exception of super early bird and early bird rates). 22. N.Y. Gen. Bus. Law 518 provides No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check or similar means. Any seller who violated the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars or a term of imprisonment up to one year, or both. 23. N.Y. Gen. Bus. Law 511(6) defines the term seller any person who honors credit cards or debit cards which may be used to purchase or lease property or a service. 24. N.Y. Gen. Bus. Law 511(4) defines the term holder as a person to whom such a credit card or debit card is issued or who has agreed with the issuer to pay obligations arising from the use of a credit card or debit card issued to another person. 25. N.Y. Gen. Bus. Law 511(2) defines person an individual, corporation, partnership or association, two or more persons having a joint or common interest or any other legal or commercial entity. -4-4 of 15
26. N.Y. Gen. Bus. Law 349 provides (a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful. (h)... any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds that the defendant willfully or knowingly violated this section. The court may award reasonable attorney s fees to a prevailing plaintiff. 27. The Attorney General of the State of New York issued a Formal Opinion (No. 2006-F2) on January 25, 2006 interpreting the application of the prohibition of credit card surcharges pursuant to N.Y. Gen. Bus. Law 518. The Attorney General noted that the legislative history and legislative intent of 518 was that it was to have a broad application. 28. The U.S. Court of Appeals for the Second Circuit applied and interpreted N.Y. Gen. Bus. Law 518 Section 518 s use of the word surcharge assumes that a seller to which the statute applies will have a usual or normal price that serves as a baseline for determining whether credit-card customers are charged an additional amount that cash customers are not... [Section 518] forbids charging credit-card customers an additional amount above the regular price that is not also charged to cash customers... A seller imposing a surcharge (an additional amount above its sticker price) on credit-card customers could chose to characterize that additional charge as whatever it wants, but that would not change the fact that it would be violating Section 518. Expressions Hair Design v. Schneiderman, 803 F.3d 94, 103-04, 108 (2d Cir. 2015). 29. Quik Park is a seller under N.Y. Gen. Bus. Law 511(6). 30. Stankus is a holder under N.Y. Gen. Bus. Law 511(4). -5-5 of 15
CLASS ACTION ALLEGATIONS 31. Plaintiff Stankus sues on her own and on behalf of a class of persons under C.P.L.R. Article 9 All persons whom Quik Park charged a processing fee for using their credit card or debit card to pay for hourly parking at Quik Park s parking garages in the State of New York during the applicable statute of limitations period ( Class Members ). 32. Subject to additional information obtained through further investigation and discovery, the foregoing Class definition may be expanded or narrowed by amendment. 33. Excluded from the Class are Quik Park, their officers, directors, and employees, and the Court, the Court s immediate family and Court staff. 34. Numerosity. The Class Members identified above are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, and the facts upon which to calculate that number are presently within the sole control of Quik Park, upon information and belief, more than 5,000 Class Members exist. 35. Adequacy of Representation. Stankus will fairly and adequately represent and protect the Class Members interests. She has retained counsel highly experienced in complex consumer class action litigation and intends to prosecute this action vigorously. She is a Class Member, as defined above, and has no interests antagonistic to, or in conflict with, the other Class Members. 36. Typicality. Stankus claims are typical of the Class Members. Stankus and all Class Members parked their motor vehicles on an hourly basis (except utilizing the super early bird and early bird rates) at Quik Park s parking garages in the State of -6-6 of 15
New York and paid Quik Park a surcharge for using their credit card or debit card to pay the hourly fee. 37. Quik Park has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 38. Commonality. Common questions of law and fact exist as to the Class that predominate over any questions solely affecting the individual Class Members, including but not limited to a. Whether Quik Park required customers to pay a surcharge to use their credit cards or debit cards to pay for hourly parking at its parking garages in the State of New York; b. Whether the surcharge Quik Park imposed violates N.Y. Gen. Bus. Law 518; c. Whether the surcharge Quik Park imposed constitutes a deceptive act or practice, violating N.Y. Gen. Bus. Law 349; d. Whether the surcharge Quik Park imposed constitutes unjust enrichment; e. Whether Stankus and the Class Members are entitled to their actual damages under N.Y. Gen. Bus. Law 349; f. Whether Stankus and the Class Members are entitled to injunctive relief under N.Y Gen. Bus. Law 349(h) to enjoin Quik Park from such unlawful act or practice; -7-7 of 15
g. Whether Stankus and the Class Members are entitled under N.Y. Gen. Bus. Law 349(h) to reasonable attorneys fees and court costs; and h. Whether Stankus and the Class Members are entitled to declaratory and/or other equitable relief, including restitution for unjust enrichment. 39. Quik Park has acted on grounds generally applicable to the entire Class, thereby warranting final relief under N.Y. Gen. Bus. Law 349 enjoining the use of the surcharge; and awarding Stankus and the Class Members their actual damages. 40. Prosecuting separate actions by individual Class Members would create the risk of inconsistent or varying adjudications with respect to individual Class Members that would establish incompatible standards of conduct for Quik Park. 41. Relief under N.Y. Gen. Bus. Law 349, whereby the above-referenced surcharge would be enjoined, is necessary to prevent further predatory and illegal business practices by Quik Park. Money damages alone will not afford adequate and complete relief, and the relief sought is necessary to restrain Quik Park from continuing to commit its predatory and illegal policies. 42. Predominance. Common issues of fact and law predominate because Stankus and the Class Members N.Y. Gen. Bus. Law 349 claims are based on a common course of conduct, which Stankus can prove on a class-wide basis using the same evidence as would be used to prove those elements in individual actions alleging the same claims whether the surcharge Quik Park imposed constitutes an illegal charge on persons under N.Y. Gen. Bus. Law 349 and 518. 43. Superiority. A class action is superior to other available methods for the fair and efficient adjudication of this controversy for at least the following reasons -8-8 of 15
a. Given each Class Members individual claim size and Quik Park s resources, few, if any, could afford to seek legal redress individually for the wrongs alleged herein; b. This action will permit an orderly and expeditious administration of the Class Members claims, will foster economies of time, effort and expense, and will ensure uniformity of decisions; c. Any Class Member s interest in individually controlling the prosecution of separate actions is not practical, creates the potential for inconsistent or contradictory judgments, and would create a burden on the court system; d. Without a class action, Class Members will continue to suffer as a consequence of Quik Park s illegal and predatory conduct, Quik Park s legal violations will proceed without remedy, and Quik Park will continue to reap and retain the substantial proceeds derived from its wrongful and unlawful conduct. This action presents no difficulties that will impede its management by the Court as a class action. FIRST CAUSE OF ACTION - VIOLATIONS OF N.Y. GEN. BUS. LAW 349 44. Plaintiff Stankus repeats and realleges each and every allegation of the preceding paragraphs as if fully set forth herein. 45. Quik Park s uniform practice of imposing the surcharge is consumer oriented and affects the public interest, which has, in-turn, injured Stankus and the Class Members. 46. Quik Park s practice of collecting the illegal surcharge constitutes deceptive conduct under N.Y. Gen. Bus. Law 349. -9-9 of 15
47. Quik Park willfully and knowingly violated N.Y. Gen. Bus. Law 518 and 349. 48. The award for Quik Park s willful and knowing violation of N.Y. Gen. Bus. Law 349 is an amount to be determined at trial. 49. Stankus and the Class Members waive their right to statutory damages under N.Y. Gen. Bus. Law 349 and seek only actual damages thereunder as well as equitable relief and reasonable attorneys fees and costs. COUNT II UNJUST ENRICHMENT UNDER NEW YORK COMMON LAW 50. Plaintiff Stankus repeats and realleges each and every allegation of the preceding paragraphs as if fully set forth herein. 51. The surcharge Quik Park charged Stankus and the Class Members is illegal under N.Y. Gen. Bus. Law 518 and constitutes an improper windfall for Quik Park, which equity requires that it disgorges. 52. As a result of Quik Park s illegal surcharge, which violates N.Y. Gen. Bus. Law 518, it was enriched at Plaintiff Stankus and the Class Members expenses, through paying the surcharge. 53. Plaintiff Stankus and the Class Members conferred a benefit on Quik Park through paying the surcharge and Quik Park knowingly and voluntarily accepted and retained the benefits conferred on it. 54. Quik Park will be unjustly enriched if it is allowed to retain the surcharges, and each Class Member is entitled to an amount equal to the amount they enriched Quik Park and for which it has been unjustly enriched. -10-10 of 15
55. Under the circumstances, it is against equity and good conscience to permit Quik Park to retain the ill-gotten benefits it received from Plaintiff Stankus and the Class Members. PRAYER FOR RELIEF WHEREFORE, Plaintiff Stankus, on behalf of herself and the Class Members, respectfully requests this Court grant the following relief a. Certification of this action as a class action under C.P.L.R. Article 9 on behalf of the Class Members and appointing Plaintiff Stankus and her counsel to represent the Class Members; b. A declaratory judgment that the practices complained of herein are unlawful under N.Y. Gen. Bus. Law 349 and 518; c. Judgment awarding to Stankus and Class Members their actual damages for Quik Park s violations of N.Y. Gen. Bus. Law 349; d. Judgment requiring Quik Park to disgorge its ill-gotten gains and pay that as restitution to Stankus and the Class Members; e. An Order permanently enjoining Quik Park from violating N.Y. Gen. Bus. Law 518 for the illegal and improper imposition of surcharges for customers paying Quik Park for the use of credit cards or debit cards; f. An award of prejudgment and post-judgment interest; g. An award of costs and expenses of this action together with reasonable attorneys and expert fees; and h. Such other and further relief as this Court deems just and proper. -11-11 of 15
DEMAND FOR TRIAL BY JURY Plaintiff Stankus demands a trial by jury on all questions of fact the First Amended Complaint raises. Dated New York, New York September 8, 2016 BRONSON LIPSKY LLP Douglas Lipsky 630 Third Avenue, Fifth Floor New York, New York 10017-6705 212.392.4772 dl@bronsonlipsky.com Jeffrey M. Gottlieb nyjg@aol.com Dana L. Gottlieb danalgottlieb@aol.com GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, New York 10003 212.228.9795 Attorneys for Plaintiff Stankus -1212 of 15
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