FILED: NEW YORK COUNTY CLERK 07/14/2014 INDEX NO. 153996/2014 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 07/14/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK REZWANUL CHOWDHURY, ALBERTO MORENO, ABDIAS PEREZ, YOBANI TARAX, GUILLERMO CHAVEZ, CARLOS LAZARO RAMOS, NELSON CRISANTOS, BARAQUEL CRUZ, ROSALIO RUIZ, JESSE SANCHEZ, IVAN GARCIA, and MARCOS FLORES on behalf of themselves and others similarly situated, Plaintiffs, SECOND AMENDED COMPLAINT Index No. 153996/2014 GK GRILL LLC d/b/a LE MARAIS RESTAURANT, and JOSE MEIRELLES, Defendants. v. Plaintiffs, by and through their undersigned attorney, respectfully allege as follows: PRELIMINARY STATEMENT 1. Plaintiffs, Rezwanul Chowdhury ( Chowdhury ), Alberto Moreno ( Moreno ), Abdias Perez ( Perez ), Yobani Tarax ( Tarax ), Guillermo Chavez ( Chavez ), Carlos Lazaro Ramos ( Ramos ), Nelson Crisantos ( Crisantos ), Baraquel Cruz ( Cruz ), Rosalio Ruiz ( Ruiz ), Jesse Sanchez ( Sanchez ), Ivan Garcia, ( Garcia ), Marcos Flores ( Flores ) bring this action, on behalf of themselves and others similarly situated, against Defendants to recover unpaid minimum and overtime wages, spread-of-hours premiums, and unlawfully retained tips under New York Labor Law ( NYLL ). JURISDICTION 1
2. This Court has jurisdiction over this matter because the conduct complained of herein occurred in New York County. THE PARTIES 3. Plaintiff, Chowdhury is a resident of New York City and was employed by Defendants at Le Marais, a French restaurant in New York County. 4. Plaintiff, Moreno is a resident of New York City and was employed by Defendants at Le Marais, a French restaurant in New York County. 5. Plaintiff, Perez is a resident of New York City and was employed by Defendants at Le Marais, a French restaurant in New York County. 6. Plaintiff, Tarax is a resident of New York City and was employed by Defendants at Le Marais, a French restaurant in New York County. 7. Plaintiff, Chavez is a resident of New York City and is employed by Defendants at Le Marais, a French restaurant in New York County. 8. Plaintiff, Ramos is a resident of New York City and is employed by Defendants at Le Marais, a French restaurant in New York County. 9. Plaintiff, Crisantos is a resident of Massachusetts and was employed by Defendants at Le Marais, a French restaurant in New York County. 10. Plaintiff, Cruz is a resident of New York City and is employed by Defendants at Le Marais, a French restaurant in New York County. 11. Plaintiff, Ruiz is a resident of New York City and is employed by Defendants at Le Marais, a French restaurant in New York County. 12. Plaintiff, Sanchez is a resident of New York City and is employed by Defendants at Le Marais, a French restaurant in New York County. 2
13. Plaintiff, Garcia is a resident of New York City and was employed by Defendants at Le Marais, a French restaurant in New York County. 14. Plaintiff, Flores is a resident of New York City and is employed by Defendants at Le Marais, a French restaurant in New York County 15. Defendant, GK Grill LLC d/b/a Le Marais ( Le Marais ) is a New York corporation located at 150 West 46th Street, New York, NY 10036. 16. Defendant, Jose Meirelles ( Meirelles ), is an individual with a business address at 404 Park Avenue South, Suite 900, New York, NY 10016. 17. Defendant, Meirelles owns and operates Le Marais. 18. Defendant, Meirelles exercises control over Le Marais s day-to-day operations. 19. Defendant, Meirelles has the power to hire and fire employees at Le Marais. 20. Defendant, Meirelles exercises sufficient control over the Corporate Defendant s daily operations to be considered an "employer" within the meaning of the FLSA and the NYLL. 21. Plaintiff, Chowdhury was employed by Defendants as a bus boy from 2012 to 2013. 22. Plaintiff, Moreno was employed by Defendants as a bus boy from 2008 to 2009. 23. Plaintiff, Perez was employed by Defendants as a bus boy from 2008 to 2009. 24. Plaintiff, Tarax was employed by Defendants as a bus boy and food runner from 2007 to 2014. 25. Plaintiff, Chavez is employed by Defendants as a bus boy and food runner from 2002 to present. 26. Plaintiff, Ramos is employed by Defendants as a bus boy and a food runner from 2003 to present. 3
27. Plaintiff, Crisantos was employed by Defendants as a bus boy and a food runner from 2003 to 2014. 28. Plaintiff, Cruz is employed by Defendants as a bus boy and food runner from 2010 to present. 29. Plaintiff, Ruiz is employed by Defendants as a food runner from 2009 to present. 30. Plaintiff, Sanchez was employed by Defendants as a bus boy from 2008 to October 2013. 31. Plaintiff, Garcia was employed by Defendants as a bus boy from July 2011 to October 2012. 32. Plaintiff, Flores was employed by Defendants as a bus boy and food runner from November 2010 to March 2014. CLASS ALLEGATIONS 33. Plaintiffs bring the causes of action contained herein pursuant to CPLR Art. 9 on behalf of all persons employed as non-exempt tipped employees by Defendants at Le Marais on or after the date that is six years before the filing of the Complaint in this case (the Class Period ). 34. The Class is so numerous that joinder of all members is impracticable. The number and identity of the class members are determinable from the records of Defendants. The hours assigned and worked, the positions held, and the rates of pay for each Class member are 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. 35. There are questions of law or fact common to the Class which predominate over any questions affecting only individual members of the Class, including 4
(a) whether Defendants failed to pay Plaintiffs and members of the class at the New York minimum wage rate for each hour worked; (b) whether Defendants failed to pay Plaintiffs and members of the class at the New York overtime rate of one-and-one-half times the regular rate of pay for hours worked in excess of forty (40) hours per week; (c) whether Defendants failed to pay Plaintiffs and members of the class the required spread-of-hours premium; (d) whether Defendants maintained an unlawful tip pool; (e) whether Defendants required Class members to share tips with tip-ineligible employees; (f) whether Defendants unlawfully utilized the tip credit when paying Class members; (g) whether Plaintiffs and the members of the Class are entitled to damages, and if so, the method by which such damages should be calculated; (h) whether Defendants are liable for the attorney s fees and costs of the members of the Class. 36. Plaintiffs claims are typical of the claims of the Class. All members of the Class are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subject to Defendants decision, plan and common policies, programs, practices, procedures, protocols, routines, and rules of failing to pay minimum wage, overtime wages, and spread-of-hours premiums, and illegal retention of tips. Plaintiffs and other Class members sustained similar losses, injuries, and damages arising from the same unlawful policies, practices, and procedures. 5
37. Plaintiffs will fairly and adequately protect the interest of the Class. They have no interests antagonistic to the members of the Class, and they will vigorously pursue this action via attorneys who are competent, skilled, and experienced in litigating wage and hour class actions. 38. A class action is superior to other available methods for the fair and efficient adjudication of the controversy for the following reasons: (a) This case involves a large corporate Defendant and an individual Defendant, both of whom have vast resources, and many individual proposed Class members who have limited resources and who have relatively small claims with common questions of law and fact (b) If each individual was required to file a separate lawsuit, Defendants, with their vast resources, would be able to exploit and overwhelm the limited resources of the proposed Class members. (c) Requiring each individual to file a separate lawsuit will discourage members of the potential Class still employed by Defendants from asserting lawful claims because of an appreciable fear that Defendants will retaliate against them. (d) Prosecuting separate lawsuits by each member of the proposed Class will create a substantial risk of inconsistent or varying verdicts, will establish potentially incompatible standards of conduct for Defendants; will result in legal determinations as to each individual that are dispositive of the interest of the other proposed Class members who are not parties to the adjudications; 6
and will impair or impede the ability of the proposed Class members to protect their own interests. (e) The individual claims are not large enough to warrant the costs and expenses that will be incurred in individual prosecution, making it difficult, if not impossible, for the individuals to redress the wrongs done to them. (f) The cost to the legal system for individual adjudication will be substantial, making the class action superior. 39. The Class expressly waives all penalties, (statutory or otherwise), liquidated damages, or punitive damages of any kind under New York Law. STATEMENT OF FACTS 40. Defendants committed the following acts knowingly, intentionally, and willfully. 41. Defendants knew that the nonpayment of minimum, overtime, and spread-of-hours wages, and unlawful retention of gratuities would economically injure Plaintiffs and members of the Class and violated state laws. 42. Plaintiffs and members of the Class often worked more than forty (40) hours per week. Plaintiffs, Chavez, Tarax, Perez, Moreno, and Ramos regularly worked between fifty (50) to sixty (60) hours per week. 43. Defendants often paid Plaintiffs and members of the Class for fewer hours than they actually worked. Plaintiffs, Chavez, Tarax, and Ramos consistently worked between fifty (50) to sixty (60) hours per week but were only paid for forty (40) hours per week. Plaintiff, Garcia, Sanchez, and Chowdhury were often required to work after they clocked out. Plaintiff, Flores was forced to work off the clock when he had to close or when he would go over forty (40) hours in a week. 7
44. Plaintiffs, Chavez, Tarax, and Crisantos stated that in 2012, Mr. Cruz, a busser who is not part of this action, was suspended for clocking more than forty (40) hours in a week. Plaintiffs, Chavez and Tarax stated that other tipped employees were suspended for clocking more than forty (40) hours in a week. 45. Plaintiffs and the Class members workdays often lasted longer than ten (10) hours. 46. Defendants often failed to pay Plaintiffs and members of the Class the required spread-of-hours premium under NYLL for each day in which they worked over ten (10) hours. Plaintiffs, Chavez, Tarax, Perez, Moreno, Ramos, Ruiz, and Cruz regularly worked more than ten (10) hours in a day, but were often not paid an extra hour of minimum wage for spread of hours. 47. Defendants failed to pay Plaintiffs and members of the Class the New York State minimum wage for all hours worked. 48. Defendants failed to pay Plaintiffs and members of the Class one-and-one-half times the New York State minimum wage for hours worked in excess of forty (40) hours per week. 49. For the hours that Defendants did pay Plaintiffs and members of the Class, Defendants paid Plaintiffs and members of the Class at the tip credit minimum wage rate, which is less than the New York State minimum wage. 50. However, Defendants were not entitled to any tip credit under NYLL because they illegally retained portions of the Plaintiffs and Class members tips and/or misappropriated them to managers. 51. Specifically, Defendants required tipped employees to share their tips with certain managers, including but not limited to maître d's and managers (collectively, the "Managers"). Upon information and belief, twenty per cent of the tips in the tip pool were skimmed off the top and given to the Managers until around 2012. Later in 2012, the Managers received ten percent 8
of the tips. These Managers at Le Marias included, but were not limited to Daniel Viddi ( Viddi ), Dorian, and Manuel. 52. The Managers were management and agents of Defendants. 53. The Managers had authority to hire and fire employees. In 2008 Plaintiffs, Perez and Moreno witnessed Manager Viddi fire a busser. Plaintiffs, Cruz and Ruiz witness Manager Viddi fire a different busser. Plaintiff, Flores was fired by Viddi in 2010 for calling in sick, and was later reinstated by the general manager. 54. The Managers had the authority to discipline tipped employees. Plaintiffs, Chavez and Tarax witnessed Manager Viddi suspended busser Marco. Plaintiff, Flores saw Viddi suspend a server. Plaintiffs, Chavez, Tarax, and Moreno were verbally disciplined by Viddi on numerous occasions and he threatened to fire them on multiple occasions. Plaintiff, Perez was sent home early by Viddi for working too slowly. 55. The Managers supervised tipped employees. For example, the Managers assigned tipped employees to particular tables and sections. The Managers also instructed tipped employees to perform specific tasks, such as assisting other employees, cleaning tables, picking up plates, and opening wine and assigned tipped employees side work, such as folding napkins, cleaning the bathroom, or stocking the bathroom with paper towels. 56. The Managers assigned side tasks like folding napkins, cleaning the bathroom, or stocking the bathroom with paper towel, getting ice for the bar, acting as temporary barback, and other duties. 57. The Managers trained employees on procedures and how to properly perform their work. Plaintiffs, Chavez and Tarax were critiqued and trained by Manager Viddi. 58. The Managers dressed differently than servers and bussers, and wore a suit and tie. 9
59. The Managers maintained employment records. For example, the Managers kept track of tip out sheet to determine how much tips each employee would receive. Also, the Managers were allowed to adjust the time sheets for employee s. Plaintiffs, Chavez and Ramos observed Manager Viddi adjust their time sheet to resolve an error clocking in. Plaintiff, Chowdhury observed Manager Viddi approve a change to his time sheet when he made an error. 60. The Managers closed the books at the end of the night and would distribute tip outs at the end of the night. All Plaintiffs received their cash tips from Manager Viddi at the end of the night. 61. The Managers had keys to the safe and would deposit cash in and take out money to pay tipped employees. 62. The Managers also had the authority to comp food and beverages for VIPs and in response to customer complaints. Plaintiff, Chavez, Tarax, Perez, Moreno, and Ramos observed Manager Viddi frequently comp food and beverages for customers worth around $25. Plaintiff, Sanchez observed Manager Viddi comp wine worth over $100 to everyone at a large table. Plaintiff, Flores observed on several occasions Manager Viddi give a table a bottle of wine worth at least $50. 63. Plaintiff, Sanchez, Crisantos, and Flores observed that Manager Viddi would direct the hostess to leave certain tables open so that he could extract tips from customers in exchange for seating at the tables. Manager Viddi would then give those tables free wine and deserts which would result in a lower bill and less tips that were given to the tip pool. Manager Viddi would not share the direct tips the customers gave him with the tip pool. In this way Manager Viddi would interfere with the tip out for servers. 10
64. The Managers exercised control over tipped employees' schedules. For example, tipped employees had to get permission from a Manager to take a break or leave work early. The Managers also had discretion to send employees home if business was slow. Manager Viddi influenced the compensation of the following tipped employees by sending them home early. Plaintiffs, Chavez, Perez, Moreno, Sanchez, Perez, and Tarax were sent home early by Manager Viddi. Plaintiff, Flores was not allowed to go home early or a few occasions. 65. Manager Viddi influenced servers compensation because they could not leave until they turned in their tip outs and they were approved by Manager Viddi. Manger Viddi influenced the earnings of tipped employees by determining when they could go home. Plaintiffs, Chavez, Perez, Moreno, and Tarax were forced to stay late to finish side work and set up for parties. Plaintiffs, Chavez and Tarax had to finish their side work and often set up for parties before they could go home. Plaintiffs, Chavez and Tarax observed that servers were not allowed to go home until they turned in the tip out sheets. 66. When the restaurant's general manager was not present, the Managers assumed the general manager's responsibilities and were in charge. The General Manager often went home around 8 pm and did not work on Saturday nights. Plaintiffs, Chavez, Tarax, Perez, Ramos, and Moreno observed that on Saturday nights Manager Viddi supervised 18 to 25 front of the house employees and oversaw between 50 to 200 patrons. Plaintiff, Crisantos and Sanchez observed that there were usually around 200 reservations on Saturday nights. 67. The Managers often ran the pre-shift meeting. At the pre-shift meeting, tipped staff were given directions and instructions regarding the shift. There were discussions about any outstanding issues along with menu changes and other necessary information. 11
68. Because the Managers were management and agents of Defendants, they were not eligible to participate in the tip pool and receive tips. FIRST CAUSE OF ACTION (Failure to Pay Minimum Wage in Violation of NYLL 650, et seq. & N.Y. Comp. Codes R. & Regs. Tit. 12 146-1.1, et seq.) 69. All preceding paragraphs are incorporated herein. 70. Throughout the statute of limitations period covered by these claims, Defendants knowingly failed to pay Plaintiff and the members of the NYLL Class the full New York minimum wage for each hour worked. 71. As a result of Defendants willful and intentional unlawful conduct, Plaintiffs and the proposed class members are entitled to damages in an amount to be determined at trial, attorneys fees, costs, pre-judgment interest, post-judgment interest, all other damages available under New York law, and such other legal and equitable relief as this Court deems just and proper. SECOND CAUSE OF ACTION (Failure to Pay Overtime Wages in Violation of NYLL 650, et seq. & N.Y. Comp. Codes R. & Regs. Tit. 12 146-1.4) 72. All preceding paragraphs are incorporated herein. 73. Throughout the statute of limitations period, Defendants knowingly failed to pay Plaintiffs and members of the Class at the required overtime rate of one-and-one-half times the minimum wage for hours worked in excess of forty (40) hours per week. 74. Throughout the statute of limitations period, Defendants willfully failed to keep records required by New York law, even though Plaintiffs and members of the Class have been and are entitled to overtime. 75. As a result of Defendants willful and intentional unlawful conduct, Plaintiffs and the proposed class members are entitled to damages in an amount to be determined at trial, 12
attorneys fees, costs, pre-judgment interest, post-judgment interest, all other damages available under New York law, and such other legal and equitable relief as this Court deems just and proper. THIRD CAUSE OF ACTION (Failure to Pay Spread-of-Hours Premium in Violation of NYLL 650, et seq. & N.Y. Comp. Codes R. & Regs. Tit. 12 146-1.6) ten (10) hours. 76. All preceding paragraphs are incorporated herein. 77. Plaintiffs and members of the class regularly had workdays that lasted more than 78. Plaintiffs were routinely required to work off the clock which generated inaccurate employee time records. 79. Defendants willfully failed to pay Plaintiffs and members of the Class one hour s pay at the New York minimum wage rate when their workdays lasted more than ten (10) hours, as required by New York law. 80. As a result of Defendants willful and intentional unlawful conduct, Plaintiffs and the proposed class members are entitled to damages in an amount to be determined at trial, attorneys fees, costs, pre-judgment interest, post-judgment interest, all other damages available under New York law, and such other legal and equitable relief as this Court deems just and proper. FOURTH CAUSE OF ACTION (Unlawful Retention of Tips in Violation of NYLL 196-d) 81. All preceding paragraphs are incorporated herein. 82. Manager s participated in the tip pool even though they were Management and performed the duties of managers. 83. Throughout the statute of limitations period, Defendants collected and retained gratuities and then unlawfully compelled Plaintiffs and the proposed members of the Class to participate in an illegal mandatory tip pool. 13
84. Pursuant to NYLL 196-d, "[n]o employer or his agent or an officer or agent of any corporation, or any other person... shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. 85. Defendants willfully and intentionally violated 196-d of the NYLL. 86. As a result of Defendants' unlawful conduct, Plaintiffs and the proposed members of the Class were denied tips to which they were otherwise entitled. 87. As a result of Defendants willful and intentional unlawful conduct, Plaintiffs and the proposed class members are entitled to damages in an amount to be determined at trial, attorneys fees, costs, pre-judgment interest, post-judgment interest, all other damages available under New York law, and such other legal and equitable relief as this Court deems just and proper. DEMAND FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. Designation of this action as a class action pursuant to CPLR 902. B. Designation of Plaintiffs as Representatives of the Class. C. An award of damages, in an amount to be proven at trial, to be paid by Defendants; D. Repayment of tips taken by Defendant, payment of minimum wage, payment of spread of hours, and overtime pay; E. Pre- and post-judgment interest; F. Attorneys fees and costs; and G. Whatever other relief this Court deems just and proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial of all claims alleged herein. 14
Dated: New York, NY July 14, 2014 By: /s/ Jeffrey E. Goldman Jeffrey E. Goldman, Esq. The Law Offices of Jeffrey E. Goldman 501 Fifth Avenue, Suite 1900 New York, NY 10017 Telephone: (212) 983-8999 Fax: (212) 949-5085 Attorney for Plaintiffs 15