Dylo v. R. King Windows Corp.

2021 NY Slip Op 32759(U)

MARCIN DYLO, STANISLAW BAJ, ADRIAN KOSIOR, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY R. KING WINDOWS CORP., ALUMINUM FABRICATORS CORP., AND MARK KLICH, INDIVIDUALLY, AND/OR ANY OTHER RELATED OR AFFILIATED ENTITIES Plaintiff, v. R. KING WINDOWS CORP., ALUMINUM FABRICATORS CORP., MARK KLICH, INDIVIDUALLY AND/OR ANY OTHER RELATED OR AFFILIATED ENTITIES, Defendant.

Index No. 157253/2019

Supreme Court, New York County

December 21, 2021

Unpublished Opinion

DECISION + ORDER ON MOTION

HON NANCY M. BANNON

The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107 MISCELLANEOUS were read on this motion to/for.

I. INTRODUCTION

In this action pursuant to the New York Labor Law (NYLL) to recover unpaid overtime wages, the plaintiffs move pursuant to CPLR 901 and 902 to certify a class comprising all individuals employed by the defendants R. King Windows Corp. (RK Windows), Aluminum Fabricators Corp. (Aluminum), and/or Mark Klich (Klich), who performed window fabrication, delivery, and installation work throughout New York from July 22, 2013, through the present, excepting any manager, corporate officer, director, clerical, or office workers. The defendants oppose the motion and cross-move pursuant to CPLR 3211(a)(7) to dismiss the complaint as against Klich, individually, and to dismiss the plaintiffs' class claims. The defendants also seek summary judgment pursuant to CPLR 3212 dismissing the complaint as against Klich. The plaintiffs oppose the cross-motion.

For the reasons that follow, the plaintiffs' motion is granted and the defendants' cross-motion is denied.

II. BACKGROUND

The named plaintiffs, Marcin Dylo, Stanislaw Baj, and Adrian Kosior (the plaintiffs) allege that beginning on or about February 2011, the defendants employed them to perform window installation work on properties in the New York metropolitan area. Specifically, the plaintiffs state they were employed by RK Windows and/or Aluminum (together, the employer defendants), two jointly owned and operated companies that operate out of the same location in New York, have employed up to 100 employees during the relevant time period, and subject their employees to the same policies and procedures regarding hiring, scheduling, and payroll practices. Klich is the president and sole owner of both RK Windows and Aluminum.

The plaintiffs claim that when they were first hired, they were advised they would be paid a set amount of money for each week of work. However, over the course of their employment, when they worked in excess of 40 hours in one week, they were not paid the statutory overtime rate of one and one-half times their regular rate of pay, as required pursuant to 12 NYCRR 142-2.2. Beginning in 2015, the plaintiffs were required to sign payroll sheets to receive their weekly paychecks. Each payroll sheet stated that by signing the document, the signer certified that he was "paid in full for the whole period [he] was employed at R. King Windows and/or Aluminum Fabricators Corp. All overtime hours were paid at 1.5 rate of [signer's] regular hourly wage."

The payroll sheets were written in English, a language which the plaintiffs, native Polish speakers, aver they do not understand. The plaintiffs were prohibited from keeping the payroll sheets.

The plaintiffs further claim that the defendants never provided them with wage notification documents at hiring and when their wage rates changed, as required by NYLL § 195.1. As such, the plaintiffs state that their paystubs were inaccurate. The plaintiffs were paid for the first 40 hours they worked per week by check and in cash for all additional work hours over 40. However, the rates of pay on the plaintiffs' paystubs were routinely lower than on the signed payroll sheet. Moreover, any cash payments made to the plaintiffs for the hours they worked over 40 in one week did not compensate the plaintiffs at the statutory rate.

The plaintiffs, individually and on behalf of similarly situated co-workers, commenced this action to recover the overtime wags they claim they are entitled to. Pre-class-certification discovery was completed as of the status conference held before this court on June 24, 2021. The instant motions ensued.

III. DISCUSSION

A. Defendants' Cross-Motion

Since the defendants seek relief in their cross-motion that may be wholly or partially dispositive of the plaintiffs' motion for class certification, the court addresses the cross-motion first.

i. CPLR 3211(a)(7)

On a motion to dismiss for failing to state a cause of action under CPLR 3211(a)(7), the pleading is to be afforded a liberal construction and the court should accept as true the facts alleged in the complaint or counterclaim, accord the pleading the benefit of every reasonable inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory. See Hurrell-Harring v State of New York, 15 N.Y.3d 8 (2010); Leon v Martinez, 84 N.Y.2d 83 (1994). However, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration." Silverman v Nicholson, 110 A.D.3d 1054, 1055 (2d Dept 2013) (internal quotation marks and citation omitted). "In assessing a motion under 3211 (a) (7), . . . the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Leon v Martinez, supra at 88 (internal quotation marks and citations omitted). Moreover, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I, Inc. v Goldman Sachs & Co., 5 N.Y.3d 11, 19 (2005).

The plaintiffs' first cause of action seeks to hold each of the defendants liable for violations of article 19 of the NYLL (the Minimum Wage Act). The Minimum Wage Act and attendant New York Department of Labor regulations require, inter alia, that New York employers pay their employees time and a half for overtime, which is defined as work in excess of 40 hours per week for non-residential employees. See 12 NYCRR 142-2.2; NYLL § 655(5)(b). The Minimum Wage Act authorizes suit against parties that qualify as "employers." See Bonito v Avalon Partners, Inc., 106 A.D.3d 625, 626 (1^st Dept. 2013). NYLL § 651(6) defines "employer" as "any individual, partnership, association, corporation, limited liability company, business trust, legal representative, or any organized group of persons acting as employer." Additionally, corporate officers who are not "employers" may be held liable under the Minimum Wage Act where a plaintiff demonstrates that the corporate veil should be pierced. See Bonito v Avalon Partners, Inc., supra at 626.

The plaintiffs' second cause of action seeks to hold the defendants liable for violations of article 6 of the NYLL. Article 6 of the NYLL "regulates the payment of wages by employers." Pachter v Bernard Hodes Group, Inc., 10 N.Y.3d 609, 614 (2008). Like the Minimum Wage Act, article 6 authorizes suit against any party that constitutes an "employer" within the meaning of the statute. See Bonito v Avalon Partners, Inc., supra at 625-26. NYLL § 190(3) broadly defines "employer" as "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service." Governmental agencies are excluded from the definition of "employer." Id.

The defendants move pursuant to CPLR 3211(a)(7) to dismiss the complaint as against Klich on the grounds that Klich is not an "employer" within the meaning of the NYLL and that the plaintiffs assert no basis for piercing the corporate veil. In assessing whether a defendant qualifies as an "employer" within the meaning of the Minimum Wage Act and article 6 of the NYLL, courts have applied the "economic reality" test set forth by the federal courts. Accordingly, "[t]he central inquiry in determining whether one qualifies as an 'employer' under these generous definitions is 'whether the alleged employer possessed the power to control the workers in question, ... with an eye to the "economic reality" presented by the facts of each case.'" Doo Nam Yang v ACBL Corp., 427 F.Supp.2d 327, 342 (SD NY 2005) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 [2^nd Cir 1999] [internal quotations omitted]). Relevant factors in considering the "economic reality" of a situation include whether the "employer" had authority to hire and fire employees, supervised and controlled employee work schedules and/or conditions of employment, or determined the rate and method of payment to employees. See id.; Harris v Structuretech N.Y., Inc., 191 A.D.3d 470, 471-72 (1^st Dept. 2021); Tezoco v GE & LO Corp., 199 A.D.3d 541 (1^st Dept. 2021); Bonito v Avalon Partners, Inc., supra at 626.

The plaintiffs allege in their complaint that Klich, along with RK Windows and Aluminum, was their employer "within the meaning contemplated pursuant to [the NYLL.]" In opposition to the defendants' cross-motion, the plaintiffs also submit affidavits, wherein they state that Klich hired the plaintiffs to work for RK Windows and Aluminum, ran the company on a daily basis, set the plaintiffs' rate of pay, and received complaints from employees about not receiving overtime pay. These allegations, all of which may be considered on a motion pursuant to CPLR 3211(a)(7), (see Rovello...