BACKGROUND The plaintiffs were hired by defendant Loving Hands Dog Care Foundation, Inc. (“Loving Hands”) to work as concession stand servers at games held at Yankee Stadium in the Bronx, New York, in or about May 2019. Allegedly, the plaintiffs were to be compensated $100 for each game they worked. The instant case was commenced by the plaintiffs against the defendants asserting that the defendants failed to (i) pay overtime and “spread of hours” pay; (ii) provide wage notices; and (iii) provide accurate wage statements in violation of the New York Labor Law (“NYLL”). Additionally, plaintiffs argue that because defendant Legends Hospitality, LLC (“Legends”) and defendant Loving Hands were joint employers of the plaintiffs, Legends is also liable for the unpaid wage and violations of NYLL. Legends is a food, beverage, and merchandise concessionaire serving entertaining venues throughout the United States including Yankee Stadium in the Bronx, New York. Defendant Legends now moves for an order dismissing the Plaintiffs’ complaint against Legends for the failure to state a cause of action pursuant to CPLR 3212(a)(7). Legends argues that the plaintiffs failed to establish the joint employment doctrine with a sufficient factual basis, and therefore, the complaint against Legends must be dismissed. The plaintiffs opposed the motion and Legends submitted a reply. DISCUSSION The Plaintiffs argue that the defendant’s motion must be denied on the ground that a determination of the applicability of a joint employer relationship is a question of fact and cannot be decided on a motion to dismiss. The Plaintiffs allege that, under the well-established joint employer doctrine, the facts set forth in the complaint plausibly suggest that the defendants jointly employed the plaintiffs for their business. Legends argues that the complaint offers no further factual specificity to advance the plaintiffs’ theory that Legends exercised control over their employment relationship with Loving Hands or that a joint employment relationship existed between the defendants. Further, Legends argues that the plaintiffs’ opposition merely parrots the complaint’s allegations without any additional facts and/or information to establish the joint employment relationship. In a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is to be afforded a liberal construction. N.Y.C.P.L.R. 3026 (McKinney, Westlaw Current through L.2019, chapter 758 & L.2020, chapters 1 to 56, 58 to 88). The court must accept the facts as alleged in the complaint as true, accord the plaintiff every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Chanko v. American Broad. Co. Inc., 27 NY3d 46, 49 N.E.3d 1171, 29 N.Y.S.3d 879 (2016); Leno v. Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 (1994). The criterion is whether the proponent of the pleading has a cause of action, not whether they have properly labeled or artfully stated one. Chanko, 27 NY3d at 52; Leno 84 NY2d at 88; Guggenheimer v. Ginzburg, 43 NY2d 268, 372 N.E.2d 17, 401 N.Y.S.2d 182 (1977); Rovello v. Orofino Realty Co., 40 NY2d 633, 357 N.E.2d 970, 389 N.Y.S.2d 314 (1976). Unless it has been shown that a claimed material fact as pleaded is not a fact at all by a moving party, and there exists no significant dispute regarding it, a dismissal is not warranted. Leno 84 NY2d at 88; Guggenheimer v. Ginzburg, 43 NY2d at 274-75; Rovello v. Orofino Realty Co., 40 NY2d at 635-36. Therefore, to determine whether a dismissal is warranted pursuant to CPLR 3211 (a)(7), this Court will consider all facts alleged in the complaint as true and construe them for every possible favorable inference for the Plaintiffs, and determine only whether the facts as alleged fit within any cognizable legal theory. In this case, the Plaintiffs’ complaint alleges the following facts: a. Legends had the authority to fire the Plaintiffs; b. Legends had the authority to assign tasks to the Plaintiffs; c. Legends supervised and provided instruction to the Plaintiffs; d. Legends provided food preparation supplies to the Plaintiffs; e. Legends provided uniforms to the Plaintiffs; f. Legends issued security badges to the Plaintiffs; g. Legends determined when the Plaintiffs’ work shifts began and ended; and h. the Plaintiffs only utilized Legends’ equipment and supplies. A plaintiff may maintain an action against an entity related to, but legally distinct from, the direct employer if the two entities operated as an integrated employer or joint employers. See Strauss v. NY State Dep’t of Educ., 26 AD3d 67, 805 N.Y.S.2d 704 (3rd Dept. 2005); Gulino v. NY State Educ. Dep’t, 469 F.3d 361 (2nd Cir. 2006); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2nd Cir. 1995). 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. See Bonito v. Avalon Partners, Inc., 106 AD3d 625, 967 N.Y.S.2d 19 (1st Dept. 2013); see also Jimenez v. Concepts of Indep., Inc., 2018 WL 919983 (NY Sup. Ct. 2018). The 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.” Herman v. RSR Sec. Serv. Ltd., 172 F.3d 132 (2nd Cir. 1999); Yang v. ACBL Corp., 427 F.Supp.2d 327 (S.D.NY 2005). Here, the plaintiffs allege that Legends had the authority to fire and assign tasks to the Plaintiffs and that Legends supervised and provided instructions to the plaintiffs. Furthermore, since the plaintiffs allege that Legends determined when the plaintiffs’ work shifts began and ended, it is therefore reasonable for this Court to infer that Legends could also have the authority to determine the rate and method of payments to the plaintiffs. Finally, since it is alleged that Legends determined when the plaintiffs’ work shifts began and ended, it is also reasonable for this Court to infer that Legends maintained or should have maintained employment records of the plaintiffs. As such, this Court finds that, by the facts alleged in the complaint, the plaintiffs have adequately pled a cause of action. Accordingly, it is hereby ORDERED, that Defendant’s motion is denied; and it is further ORDERED, that the parties shall appear for a pretrial conference, a date to be determined, contingent upon Governor Cuomo’s order regarding the pandemic being lifted and the Chief Judge resuming all matters. This constitutes the decision and order of the court. Dated: June 16, 2020
