Preview
FILED: NEW YORK COUNTY CLERK 11/08/2023 07:47 PM INDEX NO. 154860/2023
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JOSE ISRAEL HERNANDEZ, individually and on
behalf of all other persons similarly situated, Index No.: 154860/2023
Plaintiffs,
-against-
THE ORIGINAL PIZZA OF AVENUE L, INC. d/b/a
ORIGINAL PIZZA, INC., MY LITTLE PIZZERIA,
INC. and related or affiliated entities, and FRANK
FONTANA, VINCENT FONTANA, and
BENEDETTO FONTANA, individually
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO
THE MOTION TO DISMISS
VIRGINIA & AMBINDER, LLP
Leonor Coyle, Esq.
Jenny S. Brejt, Esq.
40 Broad Street, 7th Floor
New York, New York 10004
Attorneys for Named Plaintiffs and the Putative Class
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ill
PRELIMINARY STATEMENT
ARGUMENT
I DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED
a. Standard For a Motion to Dismiss ............cceesssseseseseesseseesesesseseseeseseseasseeneseseneeee 1
b Legal Standard for Pleading the Existence of an Employment Relationship
Defendants are Joint Employers and the Allegations Are Sufficiently Pled Against
Them
d Defendants’ Argument that Class Certification Should be Denied is Premature ..10
IL. PLAINTIFFS’ CROSS-MOTION TO AMEND THE COMPLAINT SHOULD BE
GRANTED 12
Legal Standard 12
Plaintiffs’ Request to Add Proposed Named Plaintiff Should Be Granted 13
The Statute of Limitations Should Relate Back to the Filing of Original Complaint
15
d Plaintiffs Request to Add Factual Allegations Should Be Granted . 15
CONCLUSION 17
i
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TABLE OF AUTHORITIES
CASES PAGE
Addison v. Reitman Blacktop, Inc.,
283 F.R.D. 74 (E.D.N.Y. 2011)
Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc.,
120 A.D.3d 431 (1 Dept. 2014)
Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680 (1946) 10, 11
A.N. Frieda Diamonds, Inc. v. Kaminski,
122 A.D.3d 517 (1st Dep’t 2014) .. 12
Baldwin y. Abraham,
57 A.D. 67 (2d Dept. 1901) aff'd, 171 N.Y. 677 (1902) . .
Barfield v NY City Health & Hos Corp.
537 F.3d 132 (2d Cir. 2008)
Bernstein v. Kelso & Co.,
231 A.D.2d 314 (Ist Dept. 1997) 10
Bonito v. Avalon Partners, Inc.,
106 A.D.3d 625 (1st Dept. 2013) 4,5
Brennan v. City of New York,
99 A.D.2d 445 (1st Dep’t 1984) 13
Brummer v. Wey,
187 A.D.3d 566 (1st Dep’t 2020) 12
Buran v. Coupal,
87 N.Y.2d 173 (1995) 15
Capsolas v. Pasta Resources, Inc.,
2011 US.Dist.LEXIS 49926, (S.D.N.Y. 2011)
Cardona v. Maramont Corp.,
2014 N.Y. Misc. LEXIS 2458 (Sup. Ct. N.Y. Cnty. June 6, 2014) 11
Cedeno v. Able Health Care Serv., Inc.,
2019 NY Slip Op 3362 (U) (Sup Ct, NY County 2019)
iii
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Cohen y. Finz & Finz, P.C.,
131 A.D.3d 666 (1st Dept. 2015)
Connaughton v. Chipotle Mexican Grill, Inc.
29 N.Y.3d 137 (2017) ...
Connor v. Pier Sixty, LLC,
23 Mise.3d 435 (Sup Ct, NY County 2009)
EBC
TI Inc. v. Goldman Sachs & Co.,
5.N.Y.3d 11 (2005) 16
Fonville v. Legends Hospitality, LLC,
2020 NY Slip Op 50711(U), *1 (Sup Ct, Bronx County 2020) aff'd 195 A.D.3d 485 (Ist Dept.
2021) 4,5
Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc.,
290 A.D.2d 383 (Ist Dept. 2002)
Fowler v. Scores Holding Co.,
677 F. Supp. 2d 673 (S.D.N.Y. 2009). sccccsssssssssssssssssessssesussssesussssenunsssenusessenunsesesnssesee 3,4,6
Garcia v. Polsky, Shouldice & Rosen, P.C.
161 A.D.3d 828 (2d Dept. 2018)
Goldstein v. Brogan Cadillac Oldsmobile Corp.,
90 A.D.2d 512 (2d Dep’t 1982) 13
Goshen vy. Mut. Life Ins. Co.,
98 N.Y.2d 314 (2002)
Harris v. Structuretech NY, Inc.,
191 A.D.3d 470 (1st Dept 2021)
Hernandez v. G & P Constr. Co.,
43 A.D.2d 228 (3d Dept. 1974)
Horkan v. Command Sec. Corp.,
179 Misc.2d 108 (Sup Ct, Kings County 1998) aff’d 262 A.D.2d 532 (2d Dept. 1999)
Howard Stores Corp. v. Pope,
1 N.Y.2d 110 (1956)
Inter Connection EL, Inc. v. Helix Partners LLC,
2014 N.Y. Misc. LEXIS 2975 (N.Y. Sup. Ct. 2014) 10
iv
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Irizarry v. Catsimatidis,
722 F.3.d 99 (2d Cir. 2013)
Jimenez v. Concepts of Independence,
2018 NY Slip Op 30257(U) (Sup Ct, NY County 2018) 4,6
Johnson vy. Asberry,
190 A.D.3d 491 (1st Dept. 2021)
Kai Chui Chan y. Lipiner,
2017 NY Slip Op 30991(U), 4 (N.Y. Sup. Ct. 2017) 13
Karic v. Major Auto. Cos.,
799 F.Supp.2d 219 (E.D.N.Y. 2011)
Kimso Apartments, LLC v. Gandhi,
24 N.Y.3d 403 (2014) 12
Kolchins v. Evolution Mkts., Inc.
31 N.Y.3d 100 (2018)...
Leon v. Martinez,
84 N.Y.2d 83 (1994) 1,2,3
Lentini v. William Capital Assoc., Inc.,
2020 N.Y. Misc. LEXIS 223, *4 (Sup. Ct. N.Y. Cnty. Jan. 17, 2020) 15
Ling Chen v. Asian Terrace Rest., Inc.,
2020 US.Dist.LEXIS 126417 (E.D.N.Y. 2020)
Lucido v Mancuso,
49 A.D.3d 220 (2008) ... 12
Maldonado v. Olympia Mechanical Piping & Heating Corp.,
8 A.D.3d 348 (2d Dep’t 2004) 16
Mamoon vy. Dot Net Inc.,
135 A.D.3d 656 (1st Dept. 2016)
Markasevic v. 241 E. 76 Tenants Corp.,
2017 N.Y. Misc. LEXIS 895, (Sup. Ct., N.Y. Cnty., Mar. 13, 2017) 11
Marshall v Roselli Moving & Stor. Corp.,
2012 N.Y. Misc. LEXIS 307 (N.Y. Sup. Ct. N.Y. Cty. 2012) 11
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Matter of Zurita v. NY State Dept. of Labor,
175 A.D.3d 1182 (1st Dept. 2019)
MBIA Ins. Corp. v Greystone & Co., Inc.,
74 A.D.3d 499, 499, 901 N.Y.S.2d 522, 522 (1st Dep't 2010) 12
Meo v. Bloomgarden,
237 A.D. 325 (2d Dept. 1932)
Murray v. City of New York,
51 A.D.3d 502 (Ist Dep’t 2008) 13
P.T. Bank Cent. Asia v. ABN AMRO Bank N.V.
301 A.D.2d 373 (Ist Dept 2003) 1-2
Pirozzi v. Garvin,
185 A.D.3d 848 (2d Dept. 2020) 2,3
Popescu v. Forexware, LLC,
158 A.D.3d 543 (1st Dept. 2018) 2,3
Pludeman vy. Northern Leasing Sys., Inc.
40 A.D.3d 366 (Ist Dept. 2007).. 10
Pruitt v. Rockefeller Center Properties, Inc.,
167 A.D.2d 14 (Ist Dep't 1991) 14
Rizvi v. N. Shore Hematology-Oncology Assoc., P.C.,
2020 NY Slip Op 51281[U] (Sup. Ct. N.Y. Cnty. 2020) 2,3
Rovello v. Orofino Realty Co.
40 N.Y.2d 633 (1976)
Rutella v. Natl. Sec. Corp.,
2019 NY Slip Op 33908(U) (Sup Ct, Nassau County 2019)
Simmons vy. Edelstein,
32 A.D.3d 464 (2d Dep’t 2006)
Soriano v. Embarque Tenares Corp.,
2019 N.Y. Misc. LEXIS 8241 (Sup Ct, Bronx County 2019)
Soriano v. Embarque Tenares Corp.,
2019 N.Y. Misc. LEXIS 8241 (Sup Ct, Bronx County 2019)
vl
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Wedgewood Care Ctr. v. Kravitz,
198 A.D.3d 124 (2d Dept. 2021) 2,3
Zuccarini v. PVH Corp.,
2016 NY Slip Op 30350(U), 5 (Sup Ct, NY County 2016)
STATUTES
CPLR § 203(f) 15
CPLR § 901(a).... 10
CPLR
§ 3013 2,3, 11, 15
CPLR § 3025(b) 12
CPLR § 3026 1,2
CPLR § 3211
CPLR § 3211 (a)(1)
CPLR § 3211(a)(7)
New York Civil Practice Law and Rules Article 9 12
New York Labor Law 3, 6, 11, 16
NYLL § 190(3)
NYLL §§ 651(5)
NYLL §§ 651(6)
NYLL§ 195 11
12 NYCRR § 146-3.2
Siegel, Prac. Commentaries, CPLR C3025:11 13
vii
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PRELIMINARY STATEMENT
Named Plaintiff Jose Israel Hernandez (“Named Plaintiff’), individually and on behalf of
a putative class (the “Putative Class”) (collectively “Plaintiffs”), respectfully submits this
Memorandum of Law in opposition to Defendants My Little Pizzeria Inc.’s (“Pizzeria”) and
Benedetto Fontana’s (“Fontana”) (collectively “Defendants”) motion to dismiss the Complaint,
and dismissing Plaintiffs class claims.
Plaintiffs further submit this memorandum of law to cross move in support of their
application seeking leave to amend their First Amended Complaint to add Lorenzo Perez (“Perez”
or “Proposed Named Plaintiff’) as a Named Plaintiff, as well as additional factual allegations
supporting Fontana and My Little Pizzeria, Inc. as Plaintiffs’ employers. Plaintiffs’ motion to
amend the complaint should be granted in its entirety, as it is not at all prejudicial to Defendants.
ARGUMENT
I DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED
A. Standard For a Motion to Dismiss
It is well established that, “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading
is to be afforded a liberal construction (see CPLR 3026).” Leon v. Martinez, 84 N.Y.2d 83, 87
(1994). New York Courts, both trial and appellate, must “accept the facts as alleged in the
complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine
only whether the facts as alleged fit within any cognizable legal theory.” Jd.; see also Howard
Stores Corp. v. Pope, 1 N.Y.2d 110, 114 (1956) (“It is not our present concern, of course, whether
plaintiffs will be able to prove [their] allegations. We must assume on such a dismissal motion that
they are all true.”). In other words, the “court must accept as true not only the complaint’s material
allegations but also whatever can be reasonably inferred therefrom in favor of the pleader.” P.T.
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Bank Cent. Asia v. ABN AMRO Bank N.V., 301 A.D.2d 373, 376 (1st Dept 2003) (internal citations
and quotations omitted).
New York State courts apply a “relaxed notice pleading standard” pursuant to CPLR 3013.
See Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U], *4 (Sup.
Ct. N.Y. Cnty. 2020). Accordingly, a complaint need only “put the defendant on notice of the
‘occurrences . . intended to be proved’ (CPLR 3013).” Wedgewood Care Ctr. v. Kravitz, 198
A.D.3d 124, 134 (2d Dept. 2021) (citing Popescu v. Forexware, LLC, 158 A.D.3d 543, 543 (Ist
Dept. 2018)); Pirozzi v. Garvin, 185 A.D.3d 848, 852 (2d Dept. 2020) (pleading sufficient when
gives “notice of the occurrence.”).
A motion to dismiss pursuant to CPLR 3211(a)(1) “may be appropriately granted only
where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively
establishing a defense as a matter of law (see Leon, 84 NY.2d at 88).” Goshen v. Mut. Life Ins.
Co., 98 N.Y.2d 314, 326 (2002). “On a motion to dismiss pursuant to CPLR 3211(a)(1), the
defendant has the burden of demonstrating that the relied-upon evidence resolves all factual issues
as a matter of law, and conclusively disposes of plaintiff's claims” Fortis Fin. Servs., LLC v. Fimat
Futures USA, Inc., 290 A.D.2d 383, 383 (1st Dept. 2002) (internal quotations and citations
omitted).
Critically, pleadings subject to motions to dismiss pursuant to CPLR 3211(a)(1) must still
“be afforded a liberal construction” pursuant to CPLR 3026. Leon, 84 N.Y.2d at 87-88. Likewise,
courts must still “‘accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit
of every possible favorable inference, and determine only whether the facts as alleged fit within
any cognizable legal theory.’” Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 105-06 (2018)
(quoting Leon, 84 N.Y.2d at 87-88).
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“On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action,
the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of
every possible favorable inference, and determine only whether the facts as alleged fit within any
cognizable legal theory.” Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 829 (2d
Dept. 2018). Furthermore, “[iJn assessing a motion under CPLR 3211(a)(7), ... the criterion is
whether the proponent of the pleading has a cause of action, not whether he has stated one.”
Simmons v. Edelstein, 32 A.D.3d 464, 465 (2d Dep’t 2006) (quoting Leon v. Martinez, 84 N.Y.2d
83, 88 (1994)) (internal quotation and citation omitted); see also Rovello v. Orofino Realty Co., 40
N.Y.2d 633 (1976).
New York State courts apply a “relaxed notice pleading standard” pursuant to CPLR 3013.
See Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U], *4 (Sup.
Ct. N.Y. Cnty. 2020). Accordingly, a complaint need only “put the defendant on notice of the
“occurrences . . intended to be proved’ (CPLR 3013).” Wedgewood Care Ctr. v. Kravitz, 198
A.D.3d 124, 134 (2d Dept. 2021) (citing Popescu v. Forexware, LLC, 158 A.D.3d 543, 543 (Ist
Dept. 2018)); Pirozzi v. Garvin, 185 A.D.3d 848, 852 (2d Dept. 2020) (pleading sufficient when
gives “notice of the occurrence.”).
B. Legal Standard for Pleading the Existence of an Employment Relationship
New York Labor Law broadly defines “employer” to include both individuals and
companies. See New York Labor Law (“NYLL”) § 190(3). A determination of whether an
individual is considered an “employer” is a fact-based inquiry and is thus premature at the pleading
stage. The determination of employer status “is a question of fact that cannot be decided on a
motion to dismiss.” Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 681 (S.D.N.Y. 2009).
“Thus, on a motion to dismiss . . . the relevant inquiry is whether a defendant has been put ‘on
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notice of the theory of employer liability.’” (Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 84
(E.D.N.Y. 2011) (citing Fowler v. Scores Holding Co., Inc., 677 F.Supp.2d 673, 681 (S.D.N.Y.
2009). New York courts have consistently denied defendants’ motions to dismiss when plaintiffs
sufficiently plead that corporate officers and owners qualify as an “employer” under the law. (See
Cohen vy. Finz & Finz, P.C., 131 A.D.3d 666, 666-67 (1st Dept. 2015) (“plaintiff alleged adequate
facts to state a cause of action against each of the individual defendants in his or her distinct
capacity as the plaintiff's employer within the meaning of the Labor Law.”).
The standard for pleading the existence of an employment relationship in New York State
court is very lenient. “A complaint will survive a motion to dismiss . . . as long as the facts set
forth in the Complaint plausibly suggest a degree of control and involvement by [the defendant]
in Plaintiff's employment.” See Jimenez, 2018 NY Slip Op 30257[U] at 11 (quoting Zuccarini v.
PVH Corp., 2016 NY Slip Op 30350(U), 5 (Sup Ct, NY County 2016)). “[A] plaintiff is not
required to plead specific facts establishing single or joint employment in order to survive a motion
to dismiss.” Zuccarini, 2016 NY Slip Op 30350(U) at 8. A court need only determine whether the
facts as alleged fit within “any cognizable legal theory.” Rutella v. Natl. Sec. Corp., 2019 NY Slip
Op 33908[U], *5 (Sup Ct, Nassau County 2019) (quoting Connaughton v. Chipotle Mexican Grill,
Inc., 29 N.Y.3d 137, 141 (2017)).
“In determining whether an entity is an employer for purposes of the Labor Law, New
York courts have adopted the economic reality test set forth by the federal courts.” Fonville v.
Legends Hospitality, LLC, 2020 NY Slip Op 5071 1[U}, *1 (Sup Ct, Bronx County 2020) aff’d 195
A.D.3d 485 (1st Dept. 2021) (citing Bonito v. Avalon Partners, Inc., 106 A.D.3d 625 (1st Dept.
2013) and Jimenez v. Concepts of Independence, 2018 NY Slip Op 30257[U] (Sup Ct, NY County
2018)); Matter of Zurita v. NY State Dept. of Labor, 175 A.D.3d 1182, 1183 (Ist Dept. 2019).
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The economic reality test has four factors: “whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and (4) maintained
employment records.”” Jrizarry v. Catsimatidis, 722 F.3.d 99, 105 (2d Cir. 2013) (quoting Barfield
v NY City Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008).
There is no requirement that a plaintiff assert facts that support each factor from the
economic reality test in order to adequately plead the existence of an employment relationship. See
e.g., Fonville, 2020 NY Slip Op 50711[U] at 1. In Fonville, the court inferred from the alleged
fact that the defendant determined when the plaintiffs’ shifts began and ended that the defendant
also had the authority to determine the rate and method of payment and maintained employment
records of the plaintiffs. Jd. The holding by the lower court in Fonville was affirmed on appeal.
Fonville y. Legends Hospitality, 195 A.D.3d 485, 486 (Ist Dept. 2021) (finding the plaintiffs’
allegations “sufficient at the pleading stage to support the Labor Law wage claims against [the
defendant] as an employer.”).
Likewise, general allegations as to a defendant’s status as employer are also acceptable at
the pleading stage. In Bonito, the First Department found plaintiff sufficiently asserted employer
liability based on allegations that individual defendant “exercised control of Avalon’s ‘day-to-day
operations’ and that he was their employer under New York law” along with an affidavit that the
individual defendant “hired and fired employees, supervised and controlled employees’ work
schedules, determined the method and rate of payment, kept employment records, and approved
any vacations” sufficient at the pre-answer juncture. Bonito v. Avalon Partners, Inc., 106 A.D.3d
625 (1st Dept. 2013); see also Harris v. Structuretech NY, Inc., 191 A.D.3d 470, 471 (1st Dept
2021).
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Critically, whether an employment relationship exists is a fact intensive question that is not
susceptible to adjudication via dispositive motion. Meo v. Bloomgarden, 237 A.D. 325, 327 (2d
Dept. 1932) (quoting Baldwin v. Abraham, 57 A.D. 67, 79 (2d Dept. 1901) aff'd, 171 N.Y. 677
(1902)) (“And where the question as to the existence of the relation of master and servant is a
mixed one of law and fact, it must be left to the jury.”). A “mixed question of fact and law not
susceptible to determination on a motion to dismiss.” Horkan v. Command Sec. Corp., 179 Mise.2d
108, 110 (Sup Ct, Kings County 1998) aff'd 262 A.D.2d 532 (2d Dept. 1999).
“Whether defendant is plaintiff's employer, and what that means for plaintiff, are fact
intensive questions that the court cannot readily decide on a motion to dismiss.” Jimenez, 2018
NY Slip Op 30257[U], at 12; Hernandez v. G & P Constr. Co., 43 A.D.2d 228, 230 (3d Dept.
1974) (“[T]he question of employment relationship is a mixed question of law and fact[.]’”); see
also Cedeno v. Able Health Care Serv., Inc., 2019 NY Slip Op 33624[U], *5 (Sup Ct, NY County
2019) (“the issue of whether an entity is a joint employer is a mixed question of law and fact” that
“is especially well-suited for jury determination....”) (internal citations and quotations omitted);
Soriano v. Embarque Tenares Corp., 2019 N.Y. Misc. LEXIS 8241, 4 (Sup Ct, Bronx County
2019) (“On its face plaintiffs pleadings appear to sufficiently identify the defendants as employers
as defined under the FLSA and NYLL. Further, as no discovery has taken place, this court cannot
yet determine as a matter of fact whether the defendants meet the FLSA or NYLL's definition of
employer. Therefore, defendant’s motion to dismiss is premature....”); Connor v. Pier Sixty, LLC,
23 Misc.3d 435, 437 (Sup Ct, NY County 2009) (“[t]he extent of [employer] control is a matter
which should be explored in discovery and is not an issue which is amenable to” dismissal on the
pleadings); Fowler v. Scores Holding Co., 677 F.Supp.2d 673, 681 (S.D.N.Y. 2009) (The
determination of employer status “is a question of fact that cannot be decided on a motion to
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dismiss.”).
C. Defendants are Joint Employers and the Allegations Are Sufficiently Pled
Against Them
Here, Plaintiffs’ Complaint more than sufficiently pled allegations against Defendants as
employers. The Complaint defined “Defendants” as “The Original Pizza of Avenue L, Inc. d/b/a
Original Pizza, Inc., My Little Pizzeria, Inc. and related or affiliated entities and Frank Fontana,
Vincent Fontana, and Benedetto Fontana.” [Coyle Aff., Ex. A, Amended Complaint, §]1.] The
Amended Complaint specifically states that “Defendants employed Plaintiff as defined by NYLL
§§ 651(5) and (6) and applicable regulations, 12 NYCRR § 146-3.2” and “Defendants are
employers within the meaning of the NYLL and the supporting New York State Department of
Labor regulations.” [Coyle Aff., Ex. A, Amended Complaint, {f§14, 52.] Plaintiffs further allege
in their Complaint that “Defendants have common ownership and management, a common
business purpose, and share the same principal place of business.” [/d. at §12.] Plaintiffs have also
alleged that “Defendants own and operate three Original Pizza locations in the State of New York,
including the Original Pizza located at 95-14 Avenue L, Brooklyn, New York 11236 where the
Named Plaintiff worked, My Little Pizzeria at 114 Court St., Brooklyn NY and a third location of
The Original Pizza located at 6843 4th Ave., Brooklyn NY 11220.” [/d. at §13.] Defendants would
regularly send employees from one location to a different location to fill in for missing staff. [/d.
at §27.] Plaintiffs also alleged that “Defendants had substantial control of the working conditions
of Plaintiff and putative class members and over the unlawful policies and practices alleged
herein.” [/d. at §46.] Additionally, throughout the Complaint, Plaintiffs states that My Little
Pizzeria, Inc. and Benedetto Fontana, along with The Original Pizza of Avenue L, Inc. d/b/a
Original Pizza, Inc., Frank Fontana, and Vincent Fontana violated the law and would be liable for
failure to compensate overtime, failure to pay wages, spread of hour compensation, and uniform
7
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maintenance pay. [/d. at § 1-78.] Plaintiffs have clearly alleged the Defendants were all interrelated
and had substantial control over Plaintiffs work.
Defendants’ documentary evidence fails to refute the allegations in the Complaint. First,
Defendants improperly rely on the self-serving affidavit of Benedetto Fontana, the owner of My
Little Pizzeria Inc. It is black letter law that “[a]ffidavits are not documentary evidence and are not
appropriate proof on a CPLR 3211(a)(1) motion to dismiss.” Johnson v. Asberry, 190 A.D.3d 491,
492 (1st Dept. 2021) (citations omitted); Mamoon v. Dot Net Inc., 135 A.D.3d 656, 657 (Ist Dept.
2016); Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 432-
433 (1* Dept. 2014). Here, Mr. Fontana makes numerous substantive assertions that are not
supported by documentary evidence relating to matters, such as My Little Pizzeria Inc.’s relation
to the other Defendant Restaurants, Fontana’s relation to the other. Defendant Restaurants, and
whether Defendants employed the Named Plaintiff. [See generally Affirmation of Benedetto
Fontana.]
Second, Defendant’s documentary evidence consists of two Federal Tax Documents. [Def.
Memo. of Law, p. 3; Paul Liggieri’s Affirmation, Ex. B.] The documents do not disprove any of
the Plaintiffs’ allegations. Indeed, it merely shows that Fontana owns 100% of My Little Pizzeria
Inc.’s shares. That in no way disproves that Plaintiffs were not employees of the Defendants, that
there is no relation between Fontana and My Little Pizzeria Inc. and the non-moving Defendants.
Indeed, by definition, the doctrine of joint employer apply in situations when there is more than
one corporate entity. Fonville, 2020 N.Y.Misc.LEXIS 4762, at *5 (“A plaintiff may maintain an
action against an entity related to, but legally distinct from, the direct employer... .”). As a result,
the mere fact that My Little Pizzeria Inc. is solely owned by Fontana and has different names from
the other Defendants does not refute the allegations in Plaintiffs’ Complaint. In fact, Defendants
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tax forms only bolster Plaintiffs’ argument that Defendants are related. Indeed, it shows that
Fontana owns and is the sole shareholder who controls My Little Pizzeria, Inc. [Paul Liggieri’s
Affirmation, Ex. B.] Plaintiffs’ have alleged that workers from one location would work at My
Little Pizzeria, Inc.’s location, which would clearly link Fontana and My Little Pizzeria, Inc. to
the other Defendants. [Coyle Aff., Ex. A, Amended Complaint, 27.]
Even if Fontana’s affirmation is considered on this motion — which it may not be — nothing
stated definitively disposes of Plaintiffs’ claims. It merely shows a dispute between Fontana’s
statements and the Amended Complaint. However, since the Amended Complaint is to be accepted
as true, Fontana’s affirmation proves nothing.
Defendants argue that it is somehow relevant that Plaintiff did not work at Defendants’
location at 114 Court Street, Brooklyn, NY 11201. [Def. Memo of Law, p. 3, 5.] However,
individuals employed at different locations or by multiple entities may be joined together in a
single class where there is common ownership or management and a common unlawful scheme.
see Karic v. Major Auto. Cos., 799 F.Supp.2d 219, 226-227 (E.D.N.Y. 2011)(citing Capsolas v.
Pasta Resources, Inc., 2011 US.Dist.LEXIS 49926, *5 (S.D.N.Y. 2011)); Ling Chen v. Asian
Terrace Rest., Inc., 2020 US.Dist.LEXIS 126417, *8-9 (E.D.N.Y. 2020)(citing Karic and
Capsolas); Nawrocki v. Proto Constr. & Dev. Corporate, 2010 NY SlipOp 50676[U], *4-5 (Sup
Ct, NY County 2010) (aggregating employees ofa single and/or joint employer for purposes of
establishing numerosity on a motion for class certification). This is true even if the named plaintiff
did not work for all employer-entities. Karic, 799 F.Supp.2d at 227.!
Therefore, Defendants’ motion to dismiss themselves from the Amended Complaint must
be denied.
| Infra, Plaintiffs’ cross move to add a Lorenzo Perez as a Named Plaintiff. Perez did work at the 114 Court Street,
Brooklyn, NY 11201 location. [Coyle Aff. Ex. D, Lorenzo Perez’s Affidavit.]
9
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D. Defendants’ Argument that Class Certification Should be Denied is Premature
Defendants bizarrely argue that Plaintiffs’ request for class certification should be denied.
[Def. Memo. of Law, p. 7-8.] The problem is that Plaintiffs have not yet made such a request.
Plaintiffs did not file a motion, nor is there such a request in their Complaint. [NYSCEF Doc. 1.]
It is premature to address the sufficiency of class claims on a motion to dismiss prior to conducting
pre-class certification discovery. [Def. Memo of Law, p. 7-8.] Pludeman v. Northern Leasing Sys.,
Inc., 40 A.D.3d 366, 369 (1st Dept. 2007); Bernstein v. Kelso & Co., 231 A.D.2d 314, 324 (Ist
Dept. 1997). In fact, “[a]lthough plaintiff, as a members ofa class, may sue as a representative
party on behalf of all class members only if plaintiff meets the prerequisites specified in C.P.L.R.
§ 901(a), nothing in Article 9 requires these prerequisites to be pleaded.” Inter Connection El., Inc.
v. Helix Partners LLC, 2014 N.Y. Misc. LEXIS 2975, *9 (N.Y. Sup. Ct. 2014). Once the parties
have conducted pre-class certification discovery, then Plaintiffs would move to certify the class.
Defendants argue that the Complaint lacks information “regarding who the particular co-
workers are, or any specifics regarding how other co-workers are paid; or what they’re paid in
proportion to the Plaintiff.” [Def. Memo. of Law, p. 8.]
However, this information is specifically information Plaintiffs are not required to be in
possession of at the pleadings stage. The United States Supreme Court held in Anderson v. Mt.
Clemens Pottery Co.,
Due regard must be given to the fact that it is the employer who has
the duty under § 11 (c) of the [Fair Labor Standards] Act to keep
proper records of wages, hours and other conditions and practices of
employment and who is in position to know and to produce the most
probative facts concerning the nature and amount of work
performed. Employees seldom keep such records themselves; even
if they do, the records may be and frequently are untrustworthy.
10
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328 U.S. 680, 687 (1946).
“The rule of Anderson applies in New York State.” Cardona v. Maramont Corp., 993
N.Y.S.2d 643, 643 (Sup. Ct.). Record-keeping requirements are imposed on employers, such as
the Defendants here. See generally, N.Y.L.L. § 195 (“Every employer shall ... establish, maintain
and preserve for not less than six years contemporaneous, true, and accurate payroll records....”).
In wage-and-hour actions, information regarding wages, hours, dates of work, and extent
of underpayment is ordinarily obtained from Defendants’ records because Plaintiff workers
“seldom keep such records themselves; [and] even if they do, the records may be and frequently
are untrustworthy[.]” Anderson, 328 U.S. at 687. It would strain any conceivable interpretation of
CPLR § 3013 to require more at the pleading stage than would be required at trial. Markasevic v.
241 E. 76 Tenants Corp., 2017 N.Y. Misc. LEXIS 895, *17-19 (Sup. Ct., N.Y. Cnty., Mar. 13,
2017) (“Defendant argues that the complaint should be dismissed because plaintiff did not allege
with specificity the length and frequency of his unpaid work. However, the court finds that plaintiff
has satisfied the FLSA and NYLL pleading standards... Viewed in the light most favorable to
plaintiff, his allegations that he worked compensable time for which he was not properly paid are
adequate.”).
Assuming Defendants intended to argue that Plaintiffs’ class allegations should be
dismissed as insufficient, it should be noted that Plaintiff alleged facts sufficient to put Defendants
on notice that this action was brought as a class action. Indeed, throughout the Amended
Complaint, including in the caption, Plaintiff states that he brought this case “individually and on
behalf of all other persons similarly situated . . . .” Exhibit A. Plaintiff alleges that this action is
brought under the class action statute, “Article 9 of the New York Civil Practice Law and Rules.”
Amended Complaint § 15. Plaintiff has an entire section of his Amended Complaint titled “CLASS
11
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ALLEGATIONS.” /d. (emphasis in original). Among other allegations asserted within this
section, Plaintiff states the putative class definition (416), claims there are more than 40 members
in the class (17), identifies the alleged common issues of law and fact (18) that are typical to
Plaintiff (4 18). Even if these allegations were required to be pled, which they are not, Defendants
cannot plausibly claim that they are not on notice that Plaintiff is bringing this action on behalf of
a class of similarly situated construction workers. Therefore, the motion to dismiss must be denied.
IL. PLAINTIFFS’ CROSS-MOTION TO AMEND THE COMPLAINT SHOULD BE
GRANTED
A. Legal Standard
It is well settled that leave to supplement and amend pleadings shall be freely given,
provided there is no prejudice to the nonmoving party. See e.g. CPLR 3025(b); Brummer v. Wey,
187 A.D.3d 566, 566 (1st Dep’t 2020); MBIA Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499,
499, 901 N.Y.S.2d 522, 522 (1st Dep't 2010). See A.N. Frieda Diamonds, Inc. v. Kaminski, 122
A.D.3d 517, 517 (1st Dep’t 2014) (“The court improvidently exercised its discretion in denying
plaintiff's motion for leave to amend the complaint where there is no evidence that defendant
would be prejudiced or surprised by the proposed amendment”) (citations omitted). “Prejudice is
more than the mere exposure of the [party] to greater liability. Rather, there must be some
indication that the party has been hindered in the preparation of the party’s case or has been
prevented from taking some measure in support of its position.” Kimso Apartments, LLC v.
Gandhi, 24 N.Y.3d 403, 411 (2014) (internal quotations and citations omitted). “The burden of
establishing prejudice is on the party opposing the amendment.” /d. at 411.
Further, “[oJn a motion for leave to amend, plaintiff need not establish the merit of its
proposed new allegations (Lucido v Mancuso, 49 A.D.3d 220, 227, (2008)), but simply show that
the proffered amendment is not palpably insufficient or clearly devoid of merit...” MBIA Ins.
12
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Corp., 74 A.D.3d at 500 (internal citations omitted). The party opposing the motion must overcome
a presumption of validity in favor of the moving party, by demonstrating that the facts alleged and
relied upon in the moving papers are facially unreliable or insufficient. Brennan v. City of New
York, 99 A.D.2d 445 (1st Dep’t 1984); Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d
512, 514 (2d Dep’t 1982) (while the validity ofa proposed pleading should be examined upon a
motion, its legal sufficiency and merit must be sustained
Preview
FILED: NEW YORK COUNTY CLERK 11/08/2023 07:47 PM INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JOSE ISRAEL HERNANDEZ, individually and on behalf of all other persons similarly situated, Index No.: 154860/2023 Plaintiffs, -against- THE ORIGINAL PIZZA OF AVENUE L, INC. d/b/a ORIGINAL PIZZA, INC., MY LITTLE PIZZERIA, INC. and related or affiliated entities, and FRANK FONTANA, VINCENT FONTANA, and BENEDETTO FONTANA, individually Defendants. MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION TO DISMISS VIRGINIA & AMBINDER, LLP Leonor Coyle, Esq. Jenny S. Brejt, Esq. 40 Broad Street, 7th Floor New York, New York 10004 Attorneys for Named Plaintiffs and the Putative Class 1 of 25 FILED: NEW YORK COUNTY CLERK 11/08/2023 07:47 PM INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ill PRELIMINARY STATEMENT ARGUMENT I DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED a. Standard For a Motion to Dismiss ............cceesssseseseseesseseesesesseseseeseseseasseeneseseneeee 1 b Legal Standard for Pleading the Existence of an Employment Relationship Defendants are Joint Employers and the Allegations Are Sufficiently Pled Against Them d Defendants’ Argument that Class Certification Should be Denied is Premature ..10 IL. PLAINTIFFS’ CROSS-MOTION TO AMEND THE COMPLAINT SHOULD BE GRANTED 12 Legal Standard 12 Plaintiffs’ Request to Add Proposed Named Plaintiff Should Be Granted 13 The Statute of Limitations Should Relate Back to the Filing of Original Complaint 15 d Plaintiffs Request to Add Factual Allegations Should Be Granted . 15 CONCLUSION 17 i 2 of 25 INDEX NO. 154860/2023 FILED: NEW YORK COUNTY CLERK 11/08/2023 07:47 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 TABLE OF AUTHORITIES CASES PAGE Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74 (E.D.N.Y. 2011) Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc., 120 A.D.3d 431 (1 Dept. 2014) Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) 10, 11 A.N. Frieda Diamonds, Inc. v. Kaminski, 122 A.D.3d 517 (1st Dep’t 2014) .. 12 Baldwin y. Abraham, 57 A.D. 67 (2d Dept. 1901) aff'd, 171 N.Y. 677 (1902) . . Barfield v NY City Health & Hos Corp. 537 F.3d 132 (2d Cir. 2008) Bernstein v. Kelso & Co., 231 A.D.2d 314 (Ist Dept. 1997) 10 Bonito v. Avalon Partners, Inc., 106 A.D.3d 625 (1st Dept. 2013) 4,5 Brennan v. City of New York, 99 A.D.2d 445 (1st Dep’t 1984) 13 Brummer v. Wey, 187 A.D.3d 566 (1st Dep’t 2020) 12 Buran v. Coupal, 87 N.Y.2d 173 (1995) 15 Capsolas v. Pasta Resources, Inc., 2011 US.Dist.LEXIS 49926, (S.D.N.Y. 2011) Cardona v. Maramont Corp., 2014 N.Y. Misc. LEXIS 2458 (Sup. Ct. N.Y. Cnty. June 6, 2014) 11 Cedeno v. Able Health Care Serv., Inc., 2019 NY Slip Op 3362 (U) (Sup Ct, NY County 2019) iii 3 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Cohen y. Finz & Finz, P.C., 131 A.D.3d 666 (1st Dept. 2015) Connaughton v. Chipotle Mexican Grill, Inc. 29 N.Y.3d 137 (2017) ... Connor v. Pier Sixty, LLC, 23 Mise.3d 435 (Sup Ct, NY County 2009) EBC TI Inc. v. Goldman Sachs & Co., 5.N.Y.3d 11 (2005) 16 Fonville v. Legends Hospitality, LLC, 2020 NY Slip Op 50711(U), *1 (Sup Ct, Bronx County 2020) aff'd 195 A.D.3d 485 (Ist Dept. 2021) 4,5 Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 A.D.2d 383 (Ist Dept. 2002) Fowler v. Scores Holding Co., 677 F. Supp. 2d 673 (S.D.N.Y. 2009). sccccsssssssssssssssssessssesussssesussssenunsssenusessenunsesesnssesee 3,4,6 Garcia v. Polsky, Shouldice & Rosen, P.C. 161 A.D.3d 828 (2d Dept. 2018) Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512 (2d Dep’t 1982) 13 Goshen vy. Mut. Life Ins. Co., 98 N.Y.2d 314 (2002) Harris v. Structuretech NY, Inc., 191 A.D.3d 470 (1st Dept 2021) Hernandez v. G & P Constr. Co., 43 A.D.2d 228 (3d Dept. 1974) Horkan v. Command Sec. Corp., 179 Misc.2d 108 (Sup Ct, Kings County 1998) aff’d 262 A.D.2d 532 (2d Dept. 1999) Howard Stores Corp. v. Pope, 1 N.Y.2d 110 (1956) Inter Connection EL, Inc. v. Helix Partners LLC, 2014 N.Y. Misc. LEXIS 2975 (N.Y. Sup. Ct. 2014) 10 iv 4 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Irizarry v. Catsimatidis, 722 F.3.d 99 (2d Cir. 2013) Jimenez v. Concepts of Independence, 2018 NY Slip Op 30257(U) (Sup Ct, NY County 2018) 4,6 Johnson vy. Asberry, 190 A.D.3d 491 (1st Dept. 2021) Kai Chui Chan y. Lipiner, 2017 NY Slip Op 30991(U), 4 (N.Y. Sup. Ct. 2017) 13 Karic v. Major Auto. Cos., 799 F.Supp.2d 219 (E.D.N.Y. 2011) Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403 (2014) 12 Kolchins v. Evolution Mkts., Inc. 31 N.Y.3d 100 (2018)... Leon v. Martinez, 84 N.Y.2d 83 (1994) 1,2,3 Lentini v. William Capital Assoc., Inc., 2020 N.Y. Misc. LEXIS 223, *4 (Sup. Ct. N.Y. Cnty. Jan. 17, 2020) 15 Ling Chen v. Asian Terrace Rest., Inc., 2020 US.Dist.LEXIS 126417 (E.D.N.Y. 2020) Lucido v Mancuso, 49 A.D.3d 220 (2008) ... 12 Maldonado v. Olympia Mechanical Piping & Heating Corp., 8 A.D.3d 348 (2d Dep’t 2004) 16 Mamoon vy. Dot Net Inc., 135 A.D.3d 656 (1st Dept. 2016) Markasevic v. 241 E. 76 Tenants Corp., 2017 N.Y. Misc. LEXIS 895, (Sup. Ct., N.Y. Cnty., Mar. 13, 2017) 11 Marshall v Roselli Moving & Stor. Corp., 2012 N.Y. Misc. LEXIS 307 (N.Y. Sup. Ct. N.Y. Cty. 2012) 11 5 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Matter of Zurita v. NY State Dept. of Labor, 175 A.D.3d 1182 (1st Dept. 2019) MBIA Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499, 499, 901 N.Y.S.2d 522, 522 (1st Dep't 2010) 12 Meo v. Bloomgarden, 237 A.D. 325 (2d Dept. 1932) Murray v. City of New York, 51 A.D.3d 502 (Ist Dep’t 2008) 13 P.T. Bank Cent. Asia v. ABN AMRO Bank N.V. 301 A.D.2d 373 (Ist Dept 2003) 1-2 Pirozzi v. Garvin, 185 A.D.3d 848 (2d Dept. 2020) 2,3 Popescu v. Forexware, LLC, 158 A.D.3d 543 (1st Dept. 2018) 2,3 Pludeman vy. Northern Leasing Sys., Inc. 40 A.D.3d 366 (Ist Dept. 2007).. 10 Pruitt v. Rockefeller Center Properties, Inc., 167 A.D.2d 14 (Ist Dep't 1991) 14 Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U] (Sup. Ct. N.Y. Cnty. 2020) 2,3 Rovello v. Orofino Realty Co. 40 N.Y.2d 633 (1976) Rutella v. Natl. Sec. Corp., 2019 NY Slip Op 33908(U) (Sup Ct, Nassau County 2019) Simmons vy. Edelstein, 32 A.D.3d 464 (2d Dep’t 2006) Soriano v. Embarque Tenares Corp., 2019 N.Y. Misc. LEXIS 8241 (Sup Ct, Bronx County 2019) Soriano v. Embarque Tenares Corp., 2019 N.Y. Misc. LEXIS 8241 (Sup Ct, Bronx County 2019) vl 6 of 25 INDEX NO. 154860/2023 FILED: NEW YORK COUNTY CLERK 11/08/2023 07:47 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Wedgewood Care Ctr. v. Kravitz, 198 A.D.3d 124 (2d Dept. 2021) 2,3 Zuccarini v. PVH Corp., 2016 NY Slip Op 30350(U), 5 (Sup Ct, NY County 2016) STATUTES CPLR § 203(f) 15 CPLR § 901(a).... 10 CPLR § 3013 2,3, 11, 15 CPLR § 3025(b) 12 CPLR § 3026 1,2 CPLR § 3211 CPLR § 3211 (a)(1) CPLR § 3211(a)(7) New York Civil Practice Law and Rules Article 9 12 New York Labor Law 3, 6, 11, 16 NYLL § 190(3) NYLL §§ 651(5) NYLL §§ 651(6) NYLL§ 195 11 12 NYCRR § 146-3.2 Siegel, Prac. Commentaries, CPLR C3025:11 13 vii 7 of 25 FILED: NEW YORK COUNTY CLERK 11/08/2023 07:47 PM INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 PRELIMINARY STATEMENT Named Plaintiff Jose Israel Hernandez (“Named Plaintiff’), individually and on behalf of a putative class (the “Putative Class”) (collectively “Plaintiffs”), respectfully submits this Memorandum of Law in opposition to Defendants My Little Pizzeria Inc.’s (“Pizzeria”) and Benedetto Fontana’s (“Fontana”) (collectively “Defendants”) motion to dismiss the Complaint, and dismissing Plaintiffs class claims. Plaintiffs further submit this memorandum of law to cross move in support of their application seeking leave to amend their First Amended Complaint to add Lorenzo Perez (“Perez” or “Proposed Named Plaintiff’) as a Named Plaintiff, as well as additional factual allegations supporting Fontana and My Little Pizzeria, Inc. as Plaintiffs’ employers. Plaintiffs’ motion to amend the complaint should be granted in its entirety, as it is not at all prejudicial to Defendants. ARGUMENT I DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED A. Standard For a Motion to Dismiss It is well established that, “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026).” Leon v. Martinez, 84 N.Y.2d 83, 87 (1994). New York Courts, both trial and appellate, must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Jd.; see also Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 114 (1956) (“It is not our present concern, of course, whether plaintiffs will be able to prove [their] allegations. We must assume on such a dismissal motion that they are all true.”). In other words, the “court must accept as true not only the complaint’s material allegations but also whatever can be reasonably inferred therefrom in favor of the pleader.” P.T. 8 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Bank Cent. Asia v. ABN AMRO Bank N.V., 301 A.D.2d 373, 376 (1st Dept 2003) (internal citations and quotations omitted). New York State courts apply a “relaxed notice pleading standard” pursuant to CPLR 3013. See Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U], *4 (Sup. Ct. N.Y. Cnty. 2020). Accordingly, a complaint need only “put the defendant on notice of the ‘occurrences . . intended to be proved’ (CPLR 3013).” Wedgewood Care Ctr. v. Kravitz, 198 A.D.3d 124, 134 (2d Dept. 2021) (citing Popescu v. Forexware, LLC, 158 A.D.3d 543, 543 (Ist Dept. 2018)); Pirozzi v. Garvin, 185 A.D.3d 848, 852 (2d Dept. 2020) (pleading sufficient when gives “notice of the occurrence.”). A motion to dismiss pursuant to CPLR 3211(a)(1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law (see Leon, 84 NY.2d at 88).” Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314, 326 (2002). “On a motion to dismiss pursuant to CPLR 3211(a)(1), the defendant has the burden of demonstrating that the relied-upon evidence resolves all factual issues as a matter of law, and conclusively disposes of plaintiff's claims” Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 A.D.2d 383, 383 (1st Dept. 2002) (internal quotations and citations omitted). Critically, pleadings subject to motions to dismiss pursuant to CPLR 3211(a)(1) must still “be afforded a liberal construction” pursuant to CPLR 3026. Leon, 84 N.Y.2d at 87-88. Likewise, courts must still “‘accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.’” Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 105-06 (2018) (quoting Leon, 84 N.Y.2d at 87-88). 9 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 “On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 829 (2d Dept. 2018). Furthermore, “[iJn assessing a motion under CPLR 3211(a)(7), ... the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” Simmons v. Edelstein, 32 A.D.3d 464, 465 (2d Dep’t 2006) (quoting Leon v. Martinez, 84 N.Y.2d 83, 88 (1994)) (internal quotation and citation omitted); see also Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976). New York State courts apply a “relaxed notice pleading standard” pursuant to CPLR 3013. See Rizvi v. N. Shore Hematology-Oncology Assoc., P.C., 2020 NY Slip Op 51281[U], *4 (Sup. Ct. N.Y. Cnty. 2020). Accordingly, a complaint need only “put the defendant on notice of the “occurrences . . intended to be proved’ (CPLR 3013).” Wedgewood Care Ctr. v. Kravitz, 198 A.D.3d 124, 134 (2d Dept. 2021) (citing Popescu v. Forexware, LLC, 158 A.D.3d 543, 543 (Ist Dept. 2018)); Pirozzi v. Garvin, 185 A.D.3d 848, 852 (2d Dept. 2020) (pleading sufficient when gives “notice of the occurrence.”). B. Legal Standard for Pleading the Existence of an Employment Relationship New York Labor Law broadly defines “employer” to include both individuals and companies. See New York Labor Law (“NYLL”) § 190(3). A determination of whether an individual is considered an “employer” is a fact-based inquiry and is thus premature at the pleading stage. The determination of employer status “is a question of fact that cannot be decided on a motion to dismiss.” Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 681 (S.D.N.Y. 2009). “Thus, on a motion to dismiss . . . the relevant inquiry is whether a defendant has been put ‘on 10 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 notice of the theory of employer liability.’” (Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 84 (E.D.N.Y. 2011) (citing Fowler v. Scores Holding Co., Inc., 677 F.Supp.2d 673, 681 (S.D.N.Y. 2009). New York courts have consistently denied defendants’ motions to dismiss when plaintiffs sufficiently plead that corporate officers and owners qualify as an “employer” under the law. (See Cohen vy. Finz & Finz, P.C., 131 A.D.3d 666, 666-67 (1st Dept. 2015) (“plaintiff alleged adequate facts to state a cause of action against each of the individual defendants in his or her distinct capacity as the plaintiff's employer within the meaning of the Labor Law.”). The standard for pleading the existence of an employment relationship in New York State court is very lenient. “A complaint will survive a motion to dismiss . . . as long as the facts set forth in the Complaint plausibly suggest a degree of control and involvement by [the defendant] in Plaintiff's employment.” See Jimenez, 2018 NY Slip Op 30257[U] at 11 (quoting Zuccarini v. PVH Corp., 2016 NY Slip Op 30350(U), 5 (Sup Ct, NY County 2016)). “[A] plaintiff is not required to plead specific facts establishing single or joint employment in order to survive a motion to dismiss.” Zuccarini, 2016 NY Slip Op 30350(U) at 8. A court need only determine whether the facts as alleged fit within “any cognizable legal theory.” Rutella v. Natl. Sec. Corp., 2019 NY Slip Op 33908[U], *5 (Sup Ct, Nassau County 2019) (quoting Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017)). “In determining whether an entity is an employer for purposes of the Labor Law, New York courts have adopted the economic reality test set forth by the federal courts.” Fonville v. Legends Hospitality, LLC, 2020 NY Slip Op 5071 1[U}, *1 (Sup Ct, Bronx County 2020) aff’d 195 A.D.3d 485 (1st Dept. 2021) (citing Bonito v. Avalon Partners, Inc., 106 A.D.3d 625 (1st Dept. 2013) and Jimenez v. Concepts of Independence, 2018 NY Slip Op 30257[U] (Sup Ct, NY County 2018)); Matter of Zurita v. NY State Dept. of Labor, 175 A.D.3d 1182, 1183 (Ist Dept. 2019). 11 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 The economic reality test has four factors: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.”” Jrizarry v. Catsimatidis, 722 F.3.d 99, 105 (2d Cir. 2013) (quoting Barfield v NY City Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008). There is no requirement that a plaintiff assert facts that support each factor from the economic reality test in order to adequately plead the existence of an employment relationship. See e.g., Fonville, 2020 NY Slip Op 50711[U] at 1. In Fonville, the court inferred from the alleged fact that the defendant determined when the plaintiffs’ shifts began and ended that the defendant also had the authority to determine the rate and method of payment and maintained employment records of the plaintiffs. Jd. The holding by the lower court in Fonville was affirmed on appeal. Fonville y. Legends Hospitality, 195 A.D.3d 485, 486 (Ist Dept. 2021) (finding the plaintiffs’ allegations “sufficient at the pleading stage to support the Labor Law wage claims against [the defendant] as an employer.”). Likewise, general allegations as to a defendant’s status as employer are also acceptable at the pleading stage. In Bonito, the First Department found plaintiff sufficiently asserted employer liability based on allegations that individual defendant “exercised control of Avalon’s ‘day-to-day operations’ and that he was their employer under New York law” along with an affidavit that the individual defendant “hired and fired employees, supervised and controlled employees’ work schedules, determined the method and rate of payment, kept employment records, and approved any vacations” sufficient at the pre-answer juncture. Bonito v. Avalon Partners, Inc., 106 A.D.3d 625 (1st Dept. 2013); see also Harris v. Structuretech NY, Inc., 191 A.D.3d 470, 471 (1st Dept 2021). 12 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Critically, whether an employment relationship exists is a fact intensive question that is not susceptible to adjudication via dispositive motion. Meo v. Bloomgarden, 237 A.D. 325, 327 (2d Dept. 1932) (quoting Baldwin v. Abraham, 57 A.D. 67, 79 (2d Dept. 1901) aff'd, 171 N.Y. 677 (1902)) (“And where the question as to the existence of the relation of master and servant is a mixed one of law and fact, it must be left to the jury.”). A “mixed question of fact and law not susceptible to determination on a motion to dismiss.” Horkan v. Command Sec. Corp., 179 Mise.2d 108, 110 (Sup Ct, Kings County 1998) aff'd 262 A.D.2d 532 (2d Dept. 1999). “Whether defendant is plaintiff's employer, and what that means for plaintiff, are fact intensive questions that the court cannot readily decide on a motion to dismiss.” Jimenez, 2018 NY Slip Op 30257[U], at 12; Hernandez v. G & P Constr. Co., 43 A.D.2d 228, 230 (3d Dept. 1974) (“[T]he question of employment relationship is a mixed question of law and fact[.]’”); see also Cedeno v. Able Health Care Serv., Inc., 2019 NY Slip Op 33624[U], *5 (Sup Ct, NY County 2019) (“the issue of whether an entity is a joint employer is a mixed question of law and fact” that “is especially well-suited for jury determination....”) (internal citations and quotations omitted); Soriano v. Embarque Tenares Corp., 2019 N.Y. Misc. LEXIS 8241, 4 (Sup Ct, Bronx County 2019) (“On its face plaintiffs pleadings appear to sufficiently identify the defendants as employers as defined under the FLSA and NYLL. Further, as no discovery has taken place, this court cannot yet determine as a matter of fact whether the defendants meet the FLSA or NYLL's definition of employer. Therefore, defendant’s motion to dismiss is premature....”); Connor v. Pier Sixty, LLC, 23 Misc.3d 435, 437 (Sup Ct, NY County 2009) (“[t]he extent of [employer] control is a matter which should be explored in discovery and is not an issue which is amenable to” dismissal on the pleadings); Fowler v. Scores Holding Co., 677 F.Supp.2d 673, 681 (S.D.N.Y. 2009) (The determination of employer status “is a question of fact that cannot be decided on a motion to 13 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 dismiss.”). C. Defendants are Joint Employers and the Allegations Are Sufficiently Pled Against Them Here, Plaintiffs’ Complaint more than sufficiently pled allegations against Defendants as employers. The Complaint defined “Defendants” as “The Original Pizza of Avenue L, Inc. d/b/a Original Pizza, Inc., My Little Pizzeria, Inc. and related or affiliated entities and Frank Fontana, Vincent Fontana, and Benedetto Fontana.” [Coyle Aff., Ex. A, Amended Complaint, §]1.] The Amended Complaint specifically states that “Defendants employed Plaintiff as defined by NYLL §§ 651(5) and (6) and applicable regulations, 12 NYCRR § 146-3.2” and “Defendants are employers within the meaning of the NYLL and the supporting New York State Department of Labor regulations.” [Coyle Aff., Ex. A, Amended Complaint, {f§14, 52.] Plaintiffs further allege in their Complaint that “Defendants have common ownership and management, a common business purpose, and share the same principal place of business.” [/d. at §12.] Plaintiffs have also alleged that “Defendants own and operate three Original Pizza locations in the State of New York, including the Original Pizza located at 95-14 Avenue L, Brooklyn, New York 11236 where the Named Plaintiff worked, My Little Pizzeria at 114 Court St., Brooklyn NY and a third location of The Original Pizza located at 6843 4th Ave., Brooklyn NY 11220.” [/d. at §13.] Defendants would regularly send employees from one location to a different location to fill in for missing staff. [/d. at §27.] Plaintiffs also alleged that “Defendants had substantial control of the working conditions of Plaintiff and putative class members and over the unlawful policies and practices alleged herein.” [/d. at §46.] Additionally, throughout the Complaint, Plaintiffs states that My Little Pizzeria, Inc. and Benedetto Fontana, along with The Original Pizza of Avenue L, Inc. d/b/a Original Pizza, Inc., Frank Fontana, and Vincent Fontana violated the law and would be liable for failure to compensate overtime, failure to pay wages, spread of hour compensation, and uniform 7 14 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 maintenance pay. [/d. at § 1-78.] Plaintiffs have clearly alleged the Defendants were all interrelated and had substantial control over Plaintiffs work. Defendants’ documentary evidence fails to refute the allegations in the Complaint. First, Defendants improperly rely on the self-serving affidavit of Benedetto Fontana, the owner of My Little Pizzeria Inc. It is black letter law that “[a]ffidavits are not documentary evidence and are not appropriate proof on a CPLR 3211(a)(1) motion to dismiss.” Johnson v. Asberry, 190 A.D.3d 491, 492 (1st Dept. 2021) (citations omitted); Mamoon v. Dot Net Inc., 135 A.D.3d 656, 657 (Ist Dept. 2016); Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 432- 433 (1* Dept. 2014). Here, Mr. Fontana makes numerous substantive assertions that are not supported by documentary evidence relating to matters, such as My Little Pizzeria Inc.’s relation to the other Defendant Restaurants, Fontana’s relation to the other. Defendant Restaurants, and whether Defendants employed the Named Plaintiff. [See generally Affirmation of Benedetto Fontana.] Second, Defendant’s documentary evidence consists of two Federal Tax Documents. [Def. Memo. of Law, p. 3; Paul Liggieri’s Affirmation, Ex. B.] The documents do not disprove any of the Plaintiffs’ allegations. Indeed, it merely shows that Fontana owns 100% of My Little Pizzeria Inc.’s shares. That in no way disproves that Plaintiffs were not employees of the Defendants, that there is no relation between Fontana and My Little Pizzeria Inc. and the non-moving Defendants. Indeed, by definition, the doctrine of joint employer apply in situations when there is more than one corporate entity. Fonville, 2020 N.Y.Misc.LEXIS 4762, at *5 (“A plaintiff may maintain an action against an entity related to, but legally distinct from, the direct employer... .”). As a result, the mere fact that My Little Pizzeria Inc. is solely owned by Fontana and has different names from the other Defendants does not refute the allegations in Plaintiffs’ Complaint. In fact, Defendants 15 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 tax forms only bolster Plaintiffs’ argument that Defendants are related. Indeed, it shows that Fontana owns and is the sole shareholder who controls My Little Pizzeria, Inc. [Paul Liggieri’s Affirmation, Ex. B.] Plaintiffs’ have alleged that workers from one location would work at My Little Pizzeria, Inc.’s location, which would clearly link Fontana and My Little Pizzeria, Inc. to the other Defendants. [Coyle Aff., Ex. A, Amended Complaint, 27.] Even if Fontana’s affirmation is considered on this motion — which it may not be — nothing stated definitively disposes of Plaintiffs’ claims. It merely shows a dispute between Fontana’s statements and the Amended Complaint. However, since the Amended Complaint is to be accepted as true, Fontana’s affirmation proves nothing. Defendants argue that it is somehow relevant that Plaintiff did not work at Defendants’ location at 114 Court Street, Brooklyn, NY 11201. [Def. Memo of Law, p. 3, 5.] However, individuals employed at different locations or by multiple entities may be joined together in a single class where there is common ownership or management and a common unlawful scheme. see Karic v. Major Auto. Cos., 799 F.Supp.2d 219, 226-227 (E.D.N.Y. 2011)(citing Capsolas v. Pasta Resources, Inc., 2011 US.Dist.LEXIS 49926, *5 (S.D.N.Y. 2011)); Ling Chen v. Asian Terrace Rest., Inc., 2020 US.Dist.LEXIS 126417, *8-9 (E.D.N.Y. 2020)(citing Karic and Capsolas); Nawrocki v. Proto Constr. & Dev. Corporate, 2010 NY SlipOp 50676[U], *4-5 (Sup Ct, NY County 2010) (aggregating employees ofa single and/or joint employer for purposes of establishing numerosity on a motion for class certification). This is true even if the named plaintiff did not work for all employer-entities. Karic, 799 F.Supp.2d at 227.! Therefore, Defendants’ motion to dismiss themselves from the Amended Complaint must be denied. | Infra, Plaintiffs’ cross move to add a Lorenzo Perez as a Named Plaintiff. Perez did work at the 114 Court Street, Brooklyn, NY 11201 location. [Coyle Aff. Ex. D, Lorenzo Perez’s Affidavit.] 9 16 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 D. Defendants’ Argument that Class Certification Should be Denied is Premature Defendants bizarrely argue that Plaintiffs’ request for class certification should be denied. [Def. Memo. of Law, p. 7-8.] The problem is that Plaintiffs have not yet made such a request. Plaintiffs did not file a motion, nor is there such a request in their Complaint. [NYSCEF Doc. 1.] It is premature to address the sufficiency of class claims on a motion to dismiss prior to conducting pre-class certification discovery. [Def. Memo of Law, p. 7-8.] Pludeman v. Northern Leasing Sys., Inc., 40 A.D.3d 366, 369 (1st Dept. 2007); Bernstein v. Kelso & Co., 231 A.D.2d 314, 324 (Ist Dept. 1997). In fact, “[a]lthough plaintiff, as a members ofa class, may sue as a representative party on behalf of all class members only if plaintiff meets the prerequisites specified in C.P.L.R. § 901(a), nothing in Article 9 requires these prerequisites to be pleaded.” Inter Connection El., Inc. v. Helix Partners LLC, 2014 N.Y. Misc. LEXIS 2975, *9 (N.Y. Sup. Ct. 2014). Once the parties have conducted pre-class certification discovery, then Plaintiffs would move to certify the class. Defendants argue that the Complaint lacks information “regarding who the particular co- workers are, or any specifics regarding how other co-workers are paid; or what they’re paid in proportion to the Plaintiff.” [Def. Memo. of Law, p. 8.] However, this information is specifically information Plaintiffs are not required to be in possession of at the pleadings stage. The United States Supreme Court held in Anderson v. Mt. Clemens Pottery Co., Due regard must be given to the fact that it is the employer who has the duty under § 11 (c) of the [Fair Labor Standards] Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed. Employees seldom keep such records themselves; even if they do, the records may be and frequently are untrustworthy. 10 17 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 328 U.S. 680, 687 (1946). “The rule of Anderson applies in New York State.” Cardona v. Maramont Corp., 993 N.Y.S.2d 643, 643 (Sup. Ct.). Record-keeping requirements are imposed on employers, such as the Defendants here. See generally, N.Y.L.L. § 195 (“Every employer shall ... establish, maintain and preserve for not less than six years contemporaneous, true, and accurate payroll records....”). In wage-and-hour actions, information regarding wages, hours, dates of work, and extent of underpayment is ordinarily obtained from Defendants’ records because Plaintiff workers “seldom keep such records themselves; [and] even if they do, the records may be and frequently are untrustworthy[.]” Anderson, 328 U.S. at 687. It would strain any conceivable interpretation of CPLR § 3013 to require more at the pleading stage than would be required at trial. Markasevic v. 241 E. 76 Tenants Corp., 2017 N.Y. Misc. LEXIS 895, *17-19 (Sup. Ct., N.Y. Cnty., Mar. 13, 2017) (“Defendant argues that the complaint should be dismissed because plaintiff did not allege with specificity the length and frequency of his unpaid work. However, the court finds that plaintiff has satisfied the FLSA and NYLL pleading standards... Viewed in the light most favorable to plaintiff, his allegations that he worked compensable time for which he was not properly paid are adequate.”). Assuming Defendants intended to argue that Plaintiffs’ class allegations should be dismissed as insufficient, it should be noted that Plaintiff alleged facts sufficient to put Defendants on notice that this action was brought as a class action. Indeed, throughout the Amended Complaint, including in the caption, Plaintiff states that he brought this case “individually and on behalf of all other persons similarly situated . . . .” Exhibit A. Plaintiff alleges that this action is brought under the class action statute, “Article 9 of the New York Civil Practice Law and Rules.” Amended Complaint § 15. Plaintiff has an entire section of his Amended Complaint titled “CLASS 11 18 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 ALLEGATIONS.” /d. (emphasis in original). Among other allegations asserted within this section, Plaintiff states the putative class definition (416), claims there are more than 40 members in the class (17), identifies the alleged common issues of law and fact (18) that are typical to Plaintiff (4 18). Even if these allegations were required to be pled, which they are not, Defendants cannot plausibly claim that they are not on notice that Plaintiff is bringing this action on behalf of a class of similarly situated construction workers. Therefore, the motion to dismiss must be denied. IL. PLAINTIFFS’ CROSS-MOTION TO AMEND THE COMPLAINT SHOULD BE GRANTED A. Legal Standard It is well settled that leave to supplement and amend pleadings shall be freely given, provided there is no prejudice to the nonmoving party. See e.g. CPLR 3025(b); Brummer v. Wey, 187 A.D.3d 566, 566 (1st Dep’t 2020); MBIA Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499, 499, 901 N.Y.S.2d 522, 522 (1st Dep't 2010). See A.N. Frieda Diamonds, Inc. v. Kaminski, 122 A.D.3d 517, 517 (1st Dep’t 2014) (“The court improvidently exercised its discretion in denying plaintiff's motion for leave to amend the complaint where there is no evidence that defendant would be prejudiced or surprised by the proposed amendment”) (citations omitted). “Prejudice is more than the mere exposure of the [party] to greater liability. Rather, there must be some indication that the party has been hindered in the preparation of the party’s case or has been prevented from taking some measure in support of its position.” Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014) (internal quotations and citations omitted). “The burden of establishing prejudice is on the party opposing the amendment.” /d. at 411. Further, “[oJn a motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations (Lucido v Mancuso, 49 A.D.3d 220, 227, (2008)), but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit...” MBIA Ins. 12 19 of 25 INDEX NO. 154860/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/08/2023 Corp., 74 A.D.3d at 500 (internal citations omitted). The party opposing the motion must overcome a presumption of validity in favor of the moving party, by demonstrating that the facts alleged and relied upon in the moving papers are facially unreliable or insufficient. Brennan v. City of New York, 99 A.D.2d 445 (1st Dep’t 1984); Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512, 514 (2d Dep’t 1982) (while the validity ofa proposed pleading should be examined upon a motion, its legal sufficiency and merit must be sustained