NYSCEF document numbers 1-31 were read and considered in deciding these motions. DECISION & ORDER Relief Requested The plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Ryan Carroll (motion seq. 001). The defendants Elite Hospitality Group LLC (hereinafter Elite”), Harleys American Grille & Bar LLC (hereinafter Harleys), Vespa Italian Chop House LLC (hereinafter Vespa), Kick’n Chicken of Farmingdale LLC (hereinafter KCF); Kick’n Chicken of Smithtown LLC (hereinafter KCS), Paul Schweid, Christian Dubato, and Michael LoManto (hereinafter collectively the moving defendants) move pursuant to CPLR 3211 (a)(7) to dismiss the complaint insofar as asserted against Harleys, Vespa, and KCS, and the first, second, fifth, sixth, seventh, and eighth causes of action insofar as asserted against all of the moving defendants, and awarding the moving defendants attorneys’ fees, costs, and disbursements pursuant to Labor Law §740(6) (motion seq. 002). The plaintiff cross-moves pursuant to CPLR 3025(b) for leave to amend the complaint (motion seq. 003). Background The facts recited herein, taken from the complaint, are presumed to be true for the purposes of these motions (see Joseph v. Fensterman, 204 AD3d 766 [2d Dept 2022]). In November 2021, Plaintiff was hired by Carroll to be the general manager of KCF, as a W-2 salaried employee. However, after a few weeks, KCF began to pay him as a 1099 contractor, rather than a W-2 employee, and despite being told that he would be provided with a 401(k) and health care benefits, such benefits were never provided. Shortly after taking the job, the plaintiff noticed numerous improprieties. For instance, Carroll demanded that the plaintiff approve payroll for employees who did not have proper documentation to work in the United States. When the plaintiff expressed his concerns, they were dismissed “out of hand,” and he was demeaned, chastised, and denigrated for making complaints. The plaintiff also witnessed and complained to his manager about the abusive treatment of employees, especially female employees. On or about February 7, 2022, the plaintiff escalated his concerns and made a formal complaint to Schweid. In response, Schweid made the plaintiff the Comptroller of Elite. Despite the plaintiff’s new position, Carroll continued to harass and retaliate against the plaintiff. On June 23, 2022, the plaintiff made additional formal complaints. Around that time, the plaintiff realized LoManto was embezzling from Vespa, and informed Schweid and Dubato. LoManto was suspended, but was allowed to return in September 2022. The plaintiff expressed concerns that LoManto would be allowed to return notwithstanding his prior abusive behavior, but was assured by Schweid that LoManto would be watched. However, upon his return, LoManto continued to harass and retaliate against the plaintiff, and defamed him by spreading false rumors about his health and his work ethic. The “retaliatory” and “hostile” work environment was condoned by the other defendants. On November 4, 2022, Carroll doctored a photograph and transposed the plaintiff’s face upon that of an accused pedophile. On November 25, 2022, Carroll responded to the plaintiff in a work group chat that included Schweid, that he “highly recommend [the plaintiff] suck a bag of dicks.” When the plaintiff responded that he would see him in court, Carroll responded, “let me amend my statement…I highly recommend you suck a giant bag of dicks.” Carroll was not disciplined, and neither Schweid nor any other defendant took any steps to stop the harassment. On December 27, 2022, the plaintiff gave notice of his “constructive discharge.” On July 25, 2023, the plaintiff commenced this action alleging eight causes of action: misclassification as a 1099 contractor in violation of the Fair Labor Standards Act (“FLSA”) and the Labor Law (first and second); failure to provide payroll notices and wage statements as required by Labor Law §195 (third and fourth); retaliation for complaining about Labor Law violations (fifth) and pursuant to Labor Law §740 (sixth); failure to adopt a sexual harassment policy pursuant to Labor Law §201-G (seventh); and hostile work environment based on sexual harassment in violation of the New York State Human Rights Law (“NYSHRL”). The moving defendants interposed an answer (NYSCEF Doc. No. 12). Carroll failed to appear or answer the complaint. Motion Sequences 001, 002, 003 The plaintiff moves for leave to enter a default judgment against Carroll (motion seq. 001). The moving defendants move pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted Harleys, Vespa, and KCS, and the first, second, fifth, sixth, seventh, and eighth causes of action insofar as asserted against all of the moving defendants, and for an award of attorneys’ fees, costs, and disbursements pursuant to Labor Law §740(6) (motion seq. 002). The moving defendants contend, inter alia, that the complaint does not contain any allegations reflecting that the plaintiff was ever employed by Harleys, Vespa, and KCS; that those entities were involved in the plaintiff’s hiring; that they paid the plaintiff; or that they had the power to terminate him or to control his conduct. As such, the moving defendants argue, the complaint should be dismissed in its entirety as to Harleys, Vespa, and KCS. Plaintiff opposes the moving defendants’ motion and cross-moves pursuant to CPLR 3025(b) for leave to amend the complaint to include additional facts and information to remedy the alleged deficiencies raised by the moving defendants, to supplement the complaint with a new claim for retaliation under the FLSA as part of the fifth cause of action, and to purportedly withdraw the seventh cause of action (motion seq. 003). The additional facts include, inter alia, adding information regarding Harleys’, Vespa’s, and KCS’s employment of the plaintiff; providing more details about their payments to the plaintiff, the defendant entities’ involvement in interstate commerce, and the alleged sexual harassment of the plaintiff. The moving defendants oppose the plaintiff’s cross-motion, contending that it should be denied since it improperly attempts to assert substantive and substantial new facts, all of which were within the plaintiff’s knowledge when he filed the original complaint, and, in any event, those facts are devoid of merit and/or legally insufficient to overcome the pleading deficiencies identified by the moving defendants. Discussion of Motion Sequence 003 The Court will address the plaintiff’s cross-motion for leave to amend the complaint first. “A party may amend his or her pleading, or supplement it…at any time by leave of court or by stipulation of all parties” (CPLR 3025[b]). “Whether to grant leave to amend is within the trial court’s discretion” (Johnson v. Ortiz Transp., LLC, 205 AD3d 696, 697 [2d Dept 2022]). “[L]eave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party” (DLJ Mtge. Capital, Inc. v. David, 147 AD3d 1024, 1025 [2d Dept 2017]). “The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion” (Shields v. Darpoh, 207 AD3d 586, 587 [2d Dept 2022] [internal quotation marks omitted]). “No evidentiary showing of merit is required under CPLR 3025(b)” (Lucido v. Mancuso, 49 AD3d 220, 229 [2d Dept 2008]). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” (Derago v. Ko, 189 AD3d 1352, 1354 [2d Dept 2020] [internal quotation marks omitted]). Here, the plaintiff has demonstrated that the amendment includes additional facts and information in support of the causes of action which may have merit. Moreover, the moving defendants will not suffer undue prejudice or surprise as discovery has not yet begun, and they have not asserted otherwise. Contrary to the moving defendants’ contention, the plaintiff is not merely attempting to amend his complaint in opposition to their motion to dismiss, but rather, has moved for leave to amend his complaint (cf. Finch v. New York, 2012 WL 2866253, *8 [SD NY May 30, 2012, No. 10 CV 9691 (VB)]). Discussion of Motion Sequence 002 “In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading 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” (Langley v. Melville Fire Dist., 213 AD3d 748, 750 [2d Dept 2023]). “However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Izmirligil v. Steven J. Baum, P.C., 180 AD3d 767, 770 [2d Dept 2020] [internal quotation marks omitted]). “The allegations of the pleading cannot be vague and conclusory, but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found” (Monaghan v. R.C. Diocese of Rockville Ctr., 165 AD3d 650, 652 [2d Dept 2018]). “Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action” (Houtenbos v. Fordune Assn., Inc., 200 AD3d 662, 664 [2d Dept 2021]). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Redwood Prop. Holdings, LLC v. Christopher, 211 AD3d 758, 759 [2d Dept 2022] [internal quotation marks omitted]). Although not explicitly stated by the moving defendants, considering the arguments made in their papers regarding the plaintiff’s cross-motion, this Court will consider their motion to dismiss as directed against the amended complaint (see e.g., Langley v. Melville Fire Dist., 213 AD3d at 749-750 ["Under the circumstances of this case, once the Supreme Court granted the plaintiff's cross-motion for leave to amend the complaint, it was not erroneous for the court to consider the defendants' motion as being directed against the amended complaint"]). Misclassification as an independent contractor (first and second causes of action) The plaintiff alleges he was misclassified as an independent contractor in violation of the FLSA (first) and in violation of the Labor Law (second). The moving defendants contend that the first cause of action is subject to dismissal since the plaintiff is not a covered employee under the FLSA as there are no allegations that he was engaged in interstate commerce. In addition, the moving defendants argue that both causes of action are subject to dismissal since there is no independent cause of action for “misclassification,” and the plaintiff has failed to allege any actual damages as a result of the misclassification. As the moving defendants correctly contend, misclassification claims under the FLSA and Labor Law require more than merely alleging that an employee has been misclassified as an independent contractor; he or she must also allege that there has been a failure to pay the correct amount of wages. “To state a claim for unpaid wages under the FLSA, a plaintiff must allege that: (1) he [or she] was the defendant’s employee, (2) his [or her] work involved interstate activity, and (3) he [or she] worked for hours for which he [or she] did not receive minimum or overtime wages” (Zak v. Five Tier, Inc., 2023 WL 11918324, *6 [SD NY Dec. 14, 2023, 20 Civ 9375 (GBD)], report and recommendation adopted, 2024 WL 3666371 [SDNY Aug. 6, 2024, 20 Civ 9375 (GBD)]). “A wage-and-hour claim under the [Labor Law] involves a similar analysis, except that the [Labor Law] does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales” (id. at *6 [internal quotation marks omitted]). Here, the plaintiff merely alleges that he was improperly misclassified as an independent contractor, but makes no claim that he was not properly paid the correct amount of wages. As such, he has failed to state a cause of action for misclassification under either the FLSA or the Labor Law, and therefore, those branches of the moving defendants’ motion which are to dismiss the first and second causes of action are granted. Violations of Labor Law §195(1), (3) (third and fourth causes of action) In the third cause of action, the plaintiff alleges that the defendants failed to provide him with wage notices under Labor Law §195(1), and in the fourth cause of action, that they failed to provide him with wage statements under Labor Law §195(3). The moving defendants moved to dismiss these two causes of action insofar as asserted against Harleys, Vespa, and KCS because there were no allegations in the original complaint that these entities were the plaintiff’s employers. However, the plaintiff alleges in the amended complaint that during the relevant time period he did work for each of these entities, and between March 2022 and December 2022, each of these entities served as the plaintiff’s employers, and paid a portion of his salary each week. As such, the amended complaint sets forth a cognizable cause of action against Harleys, Vespa, and KCS alleging that the plaintiff was not provided wage and notice statements under Labor Law §195(1) and (3) (see Cabrera v. Deadwood Constr., Inc., 226 AD3d 743, 744 [2d Dept 2024]). Accordingly, those branches of the moving defendants’ motion which are to dismiss the third and fourth causes of action are denied. Retaliation under the FLSA and the Labor Law (fifth cause of action) In the fifth cause of action, the plaintiff alleges that after he complained about his misclassification as an independent contractor to Carroll and Schweid, and about the improprieties undertaken by the defendants in onboarding personnel and as to licensure and insufficient documentation to Schweid, he was verbally chastised by Carroll, and subjected to additional work assignments by Carroll, without additional or commensurate compensation, and was more intensely and critically supervised. The plaintiff contends that any of these acts would dissuade a reasonable employee from making similar complaints. Affording the amended complaint a liberal construction, accepting the facts alleged as true, and according the plaintiff the benefit of every possible favorable inference, the Court finds that the plaintiff has sufficiently stated a cause of action alleging retaliation under the FLSA and the Labor Law (see Benzinger v. Lukoil Pan Americas, LLC, 447 F Supp 3d 99, 131 [SDNY 2020]). A plaintiff alleging retaliation under FLSA must show: (1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action (see Mullins v. City of New York, 626 F3d 47, 53 [2d Cir 2010]). To establish a prima facie case of retaliation under Labor Law §215, a plaintiff “must adequately plead that while employed by the defendant, [he or] she made a complaint about the employer’s violation of the law and, as a result, was terminated or otherwise penalized, discriminated against, or subjected to an adverse employment action” (Copantitla v. Fiskardo Estiatorio, Inc., 788 F Supp 2d 253, 302 [SD NY 2011] [internal quotation marks omitted]). An employment action disadvantages an employee if “it well might have ‘dissuaded a reasonable worker from making or supporting [similar] charge[s]‘” (Mullins v. City of New York, 626 F3d at 53, quoting Burlington N. and Santa Fe Ry. Co. v. White, 548 US 53, 63 [2006]). “A causal connection between an adverse action and a plaintiff’s protected activity may be established through evidence of retaliatory animus directed against a plaintiff by the defendant, or by showing that the protected activity was closely followed in time by the adverse action” (Benzinger v. Lukoil Pan Americas, LLC, 447 F Supp 3d at 130 [citations and internal quotation marks omitted]). Although the moving defendants contend that these claims fail because the plaintiff was mistreated prior to making the complaints, the amended complaint sufficiently alleges that the plaintiff was subjected to an adverse employment action after making the complaints (see Benzinger v. Lukoil Pan Americas, LLC, 447 F Supp 3d at 131). Accordingly, that branch of the moving defendants’ motion which is to dismiss the fifth cause of action is denied. Retaliation under Labor Law §740 (sixth cause of action) In the sixth cause of action, the plaintiff alleges that although the defendants initially suspended LoManto after the plaintiff made them aware of LoManto’s embezzling, LoManto was soon reinstated and continued to harass and retaliate against the plaintiff, and took steps to create a hostile work environment, by, inter alia, defaming and threatening the plaintiff, spreading false and malicious rumors about the plaintiff’s health, and questioning his sexuality. The plaintiff alleges that LoManto’s actions were taken in retaliation against the plaintiff in violation of Labor Law §740, with the direct knowledge of the other defendants. According to the plaintiff, LoManto’s and Carroll’s abuse escalated and no corrective action was taken by the remaining defendants. Labor Law §740 “prohibits an employer from ‘tak[ing] any retaliatory action against an employee…because such employee…discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation’” (Callahan v. HSBC Sec. [USA] Inc., 723 F Supp 3d 315, 326 [SD NY 2024], quoting Labor Law §740[2]). To state a claim under this section, “a plaintiff must plead: (1) activity protected by the statute; (2) retaliatory action; and (3) ‘some causal connection’ between the protected activity and the adverse action” (id. at 326). Here, the plaintiff has failed to allege an activity, policy or practice of the moving defendants that the plaintiff reasonably believes is in violation of any law, rule or regulation. The alleged violation of law, i.e., the embezzlement, was committed against the plaintiff’s employer by a co-employee, it was not a violation committed by the employer. Accordingly, that branch of the moving defendants’ motion which is to dismiss the sixth cause of action is granted. Although pursuant to Labor Law §740(6), a court, in its discretion, may order that reasonable attorneys’ fees and court costs and disbursements may be awarded to an employer if the court determines that an action brought by an employee was without basis in law or in fact, the Court declines to do so under the circumstances of this case (see Garner v. China Nat. Gas, Inc., 71 AD3d 825, 827 [2d Dept 2010]). Sexual harassment in violation of NYSHRL (seventh cause of action) In the seventh cause of action, the plaintiff alleges that: he witnessed and complained about the treatment of women by Carroll and LoManto who routinely dehumanized female employees; throughout his employment, and on an escalating basis after LoManto returned from his suspension, the plaintiff was subjected to repeated sexually explicit commentary and verbal abuse specifically directed at him as a male and based on prior abuse he had suffered as a child sex abuse victim; LoManto questioned the plaintiff’s sexuality; the abuse was ongoing and pervasive and “exacerbated by the open, repetitive, and apparently condoned (by the other Defendants) on the job drinking of LoManto”; and rather than taking corrective action, the defendants allowed the retaliation and sexual harassment to continue and even escalate. The plaintiff seeks to recover damages as a direct result of the sexual harassment and the purposeful creation of a hostile work environment, as well as the defendants’ failure to implement a statutorily-mandated sexual harassment policy. Although the plaintiff indicates in his cross-motion that he withdrew the cause of action alleging the defendants violated Labor Law §201-G by failing to implement a sexual harassment policy (the seventh cause of action in the original complaint), in the amended complaint, the allegations are still contained within the seventh cause of action, and the plaintiff still seeks to recover damages for the violation. The plaintiff merely combined the seventh and eighth causes of action in the amended complaint. Since, as the plaintiff acknowledges, there is no private right of action available under Labor Law §201-G, to the extent he seeks to recover under this statute, his claims cannot be maintained (see generally Pavlou v. City of New York, 300 AD2d 120, 121 [1st Dept 2002]). With respect to his claims under the NYHRL, employers are prohibited from subjecting an individual to harassment because of, inter alia, his or her sexual orientation, gender identity or expression, or sex (Executive Law §296[1][h]). “Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories” (id.). “Where a plaintiff files a claim under section 296(1)(h) on or after October 11, 2019, the plaintiff need not establish that the alleged harassment ‘would be considered severe or pervasive under precedent applied to harassment claims’” (Elco v. Aguiar, 226 AD3d 649, 650 [2d Dept 2024], quoting Executive Law §296[1][h] [internal quotation marks omitted]). Sexual harassment is viewed as “one species of sex-or gender-based discrimination” (Crookendale v. New York City Health and Hosps. Corp., 175 AD3d 1132 [1st Dept 2019] [internal quotation marks omitted]). Here, the allegations of the amended complaint fail to establish that the plaintiff was subjected to a hostile work environment based on his sex or his gender (see Brown v. Henderson, 257 F3d 246, 256 [2d Cir 2001]). “[A]n environment which is equally harsh for both men and women…does not constitute a hostile working environment under the civil rights statutes” (Brennan v. Metro. Opera Ass’n, Inc., 192 F3d 310, 318 [2d Cir 1999]). Accordingly, that branch of the moving defendants’ motion which is to dismiss the seventh cause of action is granted. Discussion of Motion Sequence 001 The plaintiff’s motion for leave to enter a default judgment against Carroll is denied as academic. Based on this Court’s determination granting the plaintiff’s motion for leave to amend the complaint, the original complaint has been superseded by the amended complaint (see generally Stewart v. City of Mount Vernon, 230 AD3d 1179, 1180 [2d Dept 2024]). Since the amended complaint adds a new claim for retaliation under the FLSA as part of the fifth cause of action, pursuant to CPLR 3012(a), the plaintiff must serve Carroll, a nonappearing party, “in the manner provided for service of a summons” (CPLR 3012[a]). Conclusion It is hereby, ORDERED that the plaintiff’s motion pursuant to CPLR 3215 for leave to enter a default judgment against Carroll is DENIED AS ACADEMIC (motion seq. 001); and it is further, ORDERED that the moving defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint is GRANTED ONLY TO THE EXTENT THAT as to the amended complaint’s first, second, sixth, and seventh causes of action, and the remainder of their motion is DENIED (motion seq. 002); and it is further ORDERED that the plaintiff’s cross-motion for leave to serve an amended complaint is GRANTED (motion seq. 003), and the plaintiff is directed to serve the amended complaint on Carroll in the manner provided for service of a summons. The parties’ remaining contentions have been considered and do not warrant discussion. Any request for relief not specifically granted herein is DENIED. This shall constitute the decision and order of this Court. Dated: December 6, 2024
