throbber
Case 1:22-cv-00318-LDH-RML Document 1 Filed 01/19/22 Page 1 of 17 PageID #: 1
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`
`Lina Stillman, Esq.
`Stillman Legal, P.C.
`42 Broadway, 12t Floor
`New York, New York 10004
`Tel (212) 203-2417
`www.STILLMANLEGALPC.COM
`
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------------X
`FELIX MORALES INDIVIDUALLY AND ON
`BEHALF OF OTHERS SIMILARLY SITUATED
`
`
`PLAINTIFF,
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`
`FPL FOODS, INC. and ANTONICO FOODS CORP.
`(DBA LA BELLA MARKETPLACE) AND
`LEONARD PESCE.
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`
`
`
`
`Defendants.
`----------------------------------------------------------------X
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`
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`
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`COMPLAINT
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`COLLECTIVE ACTION
`UNDER 29 U.S.C. § 216(b)
`
`ECF Case
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`
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`
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`Plaintiff FELIX MORALES, bring this Class and Collective Action Complaint on behalf of
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`himself and similarly situated co-workers against FPL FOODS, INC. and ANTONICO FOODS
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`CORP. (DBA LA BELLA MARKETPLACE) AND LEONARD PESCE, (collectively,
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`“Defendants”) pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., the
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`New York Labor Law (“NYLL”), N.Y. Lab. Law § 650 et seq., as recently amended by the
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`Wage Theft Prevention Act (“WTPA”), N.Y. Lab Law § 195(3), N.Y. Lab Law § 191, and
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`related provisions from Title 12 of New York Codes, Rules and Regulations (“NYCRR”).
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`1
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`NATURE OF ACTION
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`1.
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`This Collective Action Complaint seeks to recover overtime compensation,
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`unlawful deductions s for Plaintiffs and similarly situated co-workers who have been employed
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`by Defendants to work at La Bella Marketplace for some or all the time period relevant to this
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`action (the relevant time period being set by the federal and state claims’ respective statutes of
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`limitations).
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`2.
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`Plaintiffs are former employees of Defendants who were ostensibly employed as
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`Grocery Clerks at La Bella Marketplace located in Brooklyn.
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`3.
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`As described herein, Individuals Defendants Leonard Pesce (“Individual
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`Defendants”) employ Plaintiffs’ for the purposes of the instant claims.
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`4.
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`FPL FOODS, INC. and ANTONICO FOODS CORP. (DBA LA BELLA
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`MARKETPLACE) are New York Corporations with headquarters at 7907 13th Ave, Brooklyn,
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`NY 11228.
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`5.
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`Individual Defendants Leonard Pesce operate and control Defendant Corporations
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`and, by extension, Defendant Corporations’ employees, for part or all of the time period relevant
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`to this action.
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`6.
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`At all relevant times, Plaintiffs regularly work for Defendants in excess of 40
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`hours per week, without receiving appropriate overtime compensation for any of the hours that
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`they worked
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`7.
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`Defendants’ conduct extended beyond Plaintiffs to all other similarly situated
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`employees.
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`

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`8.
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`Plaintiff now brings this Class and Collective Action on behalf of himself and
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`other similarly situated individuals, for federal and state claims relating to unpaid overtime
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`wages and failure to maintain records, Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.,
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`the New York Labor Law (“NYLL”), N.Y. Lab. Law § 650 et seq., as recently amended by the
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`Wage Theft Prevention Act (“WTPA”), N.Y. Lab Law § 195(3), and related provisions from
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`Title 12 of New York Codes, Rules and Regulations (“NYCRR”).
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`9.
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`In connection with the above-mentioned allegations and claims, Plaintiffs seeks
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`compensatory damages as well as applicable liquidated damages, interest, attorney’s fees and
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`costs.
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`10.
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`Plaintiffs seek certification of this action as a collective action under 29 U.S.C. §
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`216(b) on behalf of himself, individually, and all other similarly situated employees and former
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`employees of Defendants
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`JURISDICTION AND VENUE
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`11.
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`This Court has subject matter jurisdiction pursuant to 28 USC §§1331, and 1337
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`and jurisdiction over Plaintiffs’ state-law claims pursuant to 28 USC § 1367.
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`12.
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`This Court also has jurisdiction over Plaintiffs’ claims under the FLSA pursuant
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`to 29 U.S.C. § 216(b).
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`13.
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`This Court is empowered to issue a declaratory judgment pursuant to 28 USC §§
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`2201 and 2202.
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`14.
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`The venue is proper in the Eastern District of New York pursuant to 28 U.S.C. §
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`1391(b)(1) because Corporate Defendants reside in this District, certain Plaintiffs reside in this
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`3
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`District and because a substantial part of the events that are the subject of the litigation transpired
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`in this District.
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`COLLECTIVE-WIDE FACTUAL ALLEGATIONS
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`15.
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`Plaintiffs bring their FLSA claims on behalf of themselves, and all similarly
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`situated persons who work or have worked for Defendants on or after January 19, 2016, who
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`elect to opt-in to this action (the “FLSA Collective”).
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`16.
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`All of the work that Plaintiffs and the FLSA Collective have performed has been
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`assigned by Defendants and/or Defendants have been aware of all of the work that Plaintiff and
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`the FLSA Collective have performed.
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`17.
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`As part of their regular business practice, Defendants have intentionally, willfully,
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`and repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to
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`Plaintiff and the FLSA Collective. This policy and pattern or practice include, but is not limited
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`to:
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`a. Willfully failing to pay overtime wages for hours worked in excess of 40
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`hours per week;
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`b. Willfully failing to keep records that satisfy statutory requirements.
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`18.
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`At all relevant times, Plaintiff and other members of the FLSA Class who are
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`and/or have been similarly situated, have had substantially similar job requirements and pay
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`provisions, and have been subject to Defendants’ common practices, policies, programs,
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`procedures, protocols and plans of willfully failing and refusing to pay them the require overtime
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`pay at a one and one-half his regular rates for work in excess of forty (40) hours per workweek
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`

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`under the FLSA, Plaintiffs’ wages for which Defendants did not qualify under the FLSA, and
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`willfully failing to keep records required by the FLSA.
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`19.
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`The claims of Plaintiff stated herein are similar to those of the other employees
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`and Plaintiff and the FLSA Collective all perform or performed the same primary duties.
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`20.
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`Defendants are aware that FLSA required them to pay employees performing
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`non-exempt duties, including Plaintiffs and the FLSA Collective overtime premium for hours
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`worked in excess of 40 hours per workweek.
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`21.
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`22.
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`Defendants’ unlawful conduct has been widespread, repeated, and consistent.
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`Plaintiff will fairly and adequately represent and protect the interests of the
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`Class’s members. Plaintiff understands that as class representatives they assume a fiduciary
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`responsibility to the class to represent its interests fairly and adequately. Plaintiff recognizes that
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`as class representatives, they must represent and consider the interests of the class just as they
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`would represent and consider their own interests. Plaintiff understands that in decisions
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`regarding the conduct of the litigation and its possible settlement, they must not favor their own
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`interests over the Class’s interests. Plaintiff recognizes that any resolution of a class action must
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`be in the best interest of the Class. Plaintiff understands that in order to provide adequate
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`representation, they must be informed of developments in litigation, cooperate with class
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`counsel, and testify at deposition/trial. Plaintiff has retained counsel competent and experienced
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`in complex class actions and employment litigation. There is no conflict between Plaintiff and
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`the Class.
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`23.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of this litigation. The members of the Class have been damaged and are entitled to
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`5
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`recovery as a result of Defendants’ violation of the NYLL as well as its common and uniform
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`policies, practices, and procedures. Although the relative damages suffered by individual
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`members of the Class are not de minimis, such damages are small compared to the expense and
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`burden of individual prosecution of this litigation. For example, Class members lack the financial
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`resources to conduct a thorough examination of Defendants’ timekeeping and compensation
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`practices and to prosecute vigorously a lawsuit against Defendants to recover such damages. In
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`addition, class litigation is superior because it will obviate the need for unduly duplicative
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`litigation that might result in inconsistent judgments about Defendants’ practices.
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`PARTIES
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`Plaintiff
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`24.
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`Plaintiffs Felix Morales, (“Plaintiff Morales”) is an adult individual residing in
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`Brooklyn, NY. Plaintiff Morales was employed by Defendants. Plaintiff was employed by
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`Defendants from October 6, 2020, until January 8, 2022.
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`25.
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`At all relevant times to this complaint, Plaintiff Morales was employed by
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`Defendants to work as a Clerk at their specialty grocery store located at 7907 13th Ave,
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`Brooklyn, NY 11228.
`
`26.
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`Plaintiff consent to be a party pursuant to 29 U.S.C. § 216(b), and bring these
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`claims based upon the allegations herein as representative parties of a prospective class of
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`similarly situated individuals under 29 U.S.C. § 216(b) and as representatives of the Proposed
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`Class.
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`Defendants
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`

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`27.
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`Individual Defendants have owned, operated, and controlled La Bella
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`Marketplace, all times relevant to this complaint.
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`28.
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`On information and belief, FPL FOODS, INC. is a corporation organized and
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`existing under the laws of the State of New York.
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`29.
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`On information and belief, ANTONICO FOODS CORP. is a corporation
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`organized and existing under the laws of the State of New York.
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`30.
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`Upon information and belief both FPL FOODS, INC. and ANTONICO FOODS
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`CORP. individually and collectively have more than $500,000.00 in gross annual income for the
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`years relevant to the instant action (independent of excise taxes).
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`31.
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`On information and belief, the operations of FPL FOODS, INC. and ANTONICO
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`FOODS CORP. individually and collectively implicate interstate commerce insofar as these
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`Defendants rely heavily on products that has been transported across state lines.
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`32.
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`Defendant LEONARD PESCE is an individual who has been the de facto and de
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`jure owner, officer and/or agent of Defendant Corporation during the relevant time period, and
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`he issued individually. Defendant LEONARD PESCE has possessed and exercised operational
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`control over Defendant Corporations, for example, he has at times relevant to this litigation
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`determined the wages and compensation of Defendants’ employees, including Plaintiff, and
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`established the schedules of the employees, maintained employee records, and had the authority
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`to hire and fire employees. LEONARD PESCE has a prominent role in the setting of salaries for
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`Corporate Defendants’ employees and hires and fires Corporate Defendants’ employees.
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`COMMON FACTUAL ALLEGATIONS
`Defendants Constitute Joint Employers
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`7
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`33.
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`Defendants operate a specialty market where the Plaintiff worked. At all relevant
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`times, Individual Defendant LEONARD PESCE possess or possessed operational control over
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`Defendant Corporations; possess or possessed an ownership interest in Defendant Corporations,
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`and control or controlled significant functions of Defendant Corporations.
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`34.
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`Corporate Defendants and Individual Defendants are associated and joint
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`employers, act in the interest of each other with respect to employees, pay employees by the
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`same method, and share control over the employees.
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`35.
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`At relevant times, each Corporate Defendant possessed substantial
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`control over Plaintiffs’ and other similarly situated employees’ working conditions, and over the
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`policies and practices with respect to the employment and compensation of Plaintiff, and all
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`similarly situated individuals, referred to herein.
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`36.
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`Corporate Defendants jointly employed Plaintiffs, and all similarly
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`situated individuals, and are Plaintiffs’ and all similarly situated individuals’ employers within
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`the meaning of 29 U.S.C. 201 et seq. and the NYLL.
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`37.
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`In the alternative, Corporate Defendants constitute a single employer of
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`Plaintiffs and/or similarly situated individuals, as the corporate divisions between them are
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`fictional.
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`38.
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`At all relevant times, Individual Defendants were Plaintiffs’ employers
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`within the meaning of the FLSA, NYLL and other law.
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`39.
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`Individual Defendant had the power to hire and fire Plaintiffs, control the
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`terms and conditions of employment, and determine the rate and method of any compensation in
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`exchange for Plaintiffs’ services.
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`40.
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`Individual Defendants supervised Plaintiffs’ work schedules and
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`conditions of his employment.
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`41.
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`Individual Defendants also determined the rate and method of payment
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`for Plaintiffs and other similarly situated employees.
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`42.
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`Individual Defendants also controlled and guided what limited
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`recordkeeping that took place which Plaintiffs contends is deficient pursuant to FLSA and NYLL
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`requirements.
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`Individual Plaintiff Felix Morales
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`43.
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`Plaintiff Morales is a former employee of Defendants, primarily
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`employed in performing the duties of a Clerk in the seafood session.
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`44.
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`Plaintiff did not work at his own convenience, having to report to work
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`according to a schedule devised by Defendants. Furthermore, once scheduled for a shift, Plaintiff
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`did not come and go at his pleasure but rather was controlled by Defendants.
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`45.
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`Plaintiff is non-exempt under FLSA and the NYLL. Among other things,
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`Plaintiff did not occupy what law would characterize as “professional,” “executive” or even
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`“administrative” positions, as Plaintiffs’ employment for Defendants was physical labor.
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`Plaintiffs did not receive salary and these primary duties
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`46.
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`Plaintiff commences this action as a collective action under 29 U.S.C. §
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`216(b).
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`47.
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`Plaintiff Morales was employed by Defendants from approximately
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`October 6, 2020, until January 8, 2022.
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`9
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`48.
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`Plaintiff Morales regularly handled goods in interstate commerce, such as
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`produce that was produced outside of the State of New York.
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`49.
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` Plaintiffs Morales’s work duties required neither discretion nor
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`independent judgment.
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`50.
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`Throughout his employment with Defendants, Plaintiffs Morales
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`regularly worked in excess of 40 hours per week.
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`51.
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`From approximately October 2020 to beginning of December 2020,
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`Plaintiff worked approximately 50 hours per week with different shifts each lasting about (11)
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`hours.
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`52.
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`From December 2020 until his departure in 2022, Plaintiff Morales
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`regularly worked 51 hours per week or 11 hours per day, 5 days per week, from 9 A.M until 8
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`P.M.
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`53.
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`54.
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`Plaintiff was paid his wages in cash and was paid $15 per hour.
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`Plaintiff had to punch in and out, worked (5) days per week, and did
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`receive a half-hour break during his shifts.
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`55.
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`Plaintiff was not paid at the time and a half required by law for hours
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`beyond (40) per week.
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`56.
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`Defendants did not provide Plaintiffs Morales with each payment of
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`wages an accurate statement of wages, as required by NYLL 195(3).
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`57.
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`Defendants never provided Plaintiffs Morales with written notice of his
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`rate of pay, employer’s regular payday, and such other information as required by NYLL
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`§195(1).
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`Defendants’ General Employment Practices
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`58.
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`Defendants regularly require Plaintiff to work in excess of forty (40)
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`hours per week without paying him the proper overtime wages or spread of hours’ compensation.
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`59.
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`Defendants willfully disregarded and purposefully evaded record-keeping
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`requirements of the Fair Labor Standards Act and New York Labor Law by failing to maintain
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`accurate and complete timesheets and payroll records.
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`60.
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`By employing this practice, Defendants avoided paying Plaintiff at the
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`overtime rate of time and a half for most or all of their hours worked in excess of forty (40) hours
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`per week.
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`61.
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`Defendants failed to post required wage and hour posters and did not
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`provide Plaintiff with statutorily required wage and hour records or statements of their pay
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`received, in part so as to hide Defendants’ violations of the wage and hour laws, and to take
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`advantage of Plaintiffs’ relative lack of sophistication in wage and hour laws.
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`62.
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`Upon information and belief, these practices by Defendants were done
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`willfully to disguise the actual number of hours Plaintiff (and similarly situated individuals)
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`worked, and to avoid paying Plaintiff properly for
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`63.
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`Defendants did not provide Plaintiff, and similarly situated employees,
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`with the wage statements and annual pay notices require by NYLL §§195(1) and 195(3).
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`11
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`64.
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`Defendants failed to provide Plaintiff and other employees with accurate
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`wage statements at the time of payment of wages, containing: the dates of work covered by that
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`payment of wages; name of employee; name of employer; address and phone number of
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`employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week,
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`salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part
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`of the minimum wage; net wages; the regular hourly rate or rates of pay; the overtime rate or
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`rates of pay; the number of regular hours worked, and the number of overtime hours worked, as
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`require by NYLL §195(3).
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`65.
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`Defendants failed to provide Plaintiff and other employees, at the time of
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`hiring and on or before October 6, of each subsequent year, a statement in English and the
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`employee’s primary language, containing: the rate or rates of pay and basis thereof, whether paid
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`by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as
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`part of the minimum wage, including tip, meal, or lodging allowances; the regular pay day
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`designated by the employer; the name of the employer; any "doing business as" names used by
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`the employer; the physical address of the employer's main office or principal place of business,
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`and a mailing address if different; and the telephone number of the employer, as require by New
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`York Labor Law §195(1).
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`
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`FIRST CAUSE OF ACTION
`(Violation of FLSA Overtime/Unlawful Deduction/Recordkeeping Provisions)
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` Plaintiff repeats and realleges all paragraphs above as though fully set
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`66.
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`forth herein.
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`67.
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`At all times relevant to this action, Defendants were Plaintiffs’ employers
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`(and employers of the putative FLSA Class members) within the meaning of the Fair Labor
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`Standards Act, 29 U.S.C. § 203(d). Defendants had the power to hire and fire Plaintiff (and the
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`FLSA class members), control the terms and conditions of employment, and determine the rate
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`and method of any compensation in exchange for their employment.
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`68.
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`At all times relevant to this action, Defendants were engaged in
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`commerce or in an industry or activity affecting commerce.
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`69.
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`Defendants constitute an enterprise within the meaning of the Fair Labor
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`Standards Act, 29 U.S.C. § 203 (r-s).
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`70.
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`Defendants, in violation of the FLSA, failed to pay Plaintiff (and the
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`FLSA Class members) overtime compensation at rates of one and one-half times the regular rate
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`of pay for each hour worked in excess of forty hours in a workweek, in violation of 29 U.S.C. §
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`207 (a)(1).
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`71.
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`Defendants’ failure to pay Plaintiffs (and the FLSA Class members)
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`overtime compensation was willful within the meaning of 29 U.S.C. § 255(a).
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`72.
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`Defendants took unlawful deductions from Plaintiffs’ earned wages and
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`the FLSA Collective’s earned wages.
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`73.
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`Defendants, in violation of the FLSA, failed to pay Plaintiff agreed-upon
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`wages by virtue of their withholding policies, time-clock policies, and chargeback policies as
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`described herein.
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`74.
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`75.
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`Defendants failed to satisfy the FLSA’s recordkeeping requirements.
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`Defendants acted willfully in their violations of the FLSA’s requirements.
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`13
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`76.
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` Plaintiff (and the FLSA Collective) was damaged in an amount to be
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`determined at trial.
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`SECOND CAUSE OF ACTION
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`(Violation of the Overtime/ Pay/Recordkeeping/Wage Statement Provisions of
`NYLL/)
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`Plaintiffs repeats and realleges all paragraphs above as though fully set
`
`
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`77.
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`forth herein.
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`78.
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`At all times relevant to this action, Defendants were Plaintiffs’ employers
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`within the meaning of the N.Y. Lab. Law §§ 2 and 651. Defendants had the power to hire and
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`fire Plaintiff, control terms and conditions of employment, and determine the rates and methods
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`of any compensation in exchange for employment.
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`79.
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`Defendants, in violation of the NYLL and associated rules and
`
`regulations, failed to pay Plaintiff’s overtime compensation at rates of one and one-half times the
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`regular rate of pay for each hour worked in excess of forty hours in a workweek, in violation of
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`N.Y. Lab. Law § 190 et seq. and supporting regulations of the New York State Department of
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`Labor.
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`80.
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`Defendants failed to pay Plaintiff (and the Class members) in a timely
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`fashion, as required by Article 6 of the New York Labor Law.
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`81.
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`Defendants’ failure to pay Plaintiff (and the Class members) overtime
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`compensation was willful within the meaning of N.Y. Lab. Law § 663.
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`82.
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`Defendants, in violation of the NYLL, failed to pay Plaintiff agreed-upon
`
`wages by virtue of their withholding policies, time-clock policies, and chargeback policies as
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`described herein.
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`83.
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`84.
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`forth herein.
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`Plaintiff was damaged in an amount to be determined at trial.
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`Plaintiff repeats and reallege all paragraphs above as though fully set
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`85.
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`Plaintiff (and the Class members) was damaged in an amount to be
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`determined at trial.
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`86.
`
`Plaintiff repeats and realleges all paragraphs above as though fully set
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`forth herein.
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`87.
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`Defendants failed to provide Plaintiff with a written notice, in English
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`and in Spanish (Plaintiffs’ primary language), of his rate of pay, regular pay day, and such other
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`information as require by NYLL §195(1).
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`88.
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`Defendants are liable to Plaintiff in the amount of $30,000 together with
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`costs and attorney’s fees.
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`89.
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`Plaintiff repeats and realleges all paragraphs above as though set forth
`
`fully herein.
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`90.
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`Defendants did not provide Plaintiff with wage statements upon each
`
`payment of wages, as required by NYLL 195(3).
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`91.
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`Defendants acted willfully in his violation of the above-described NYLL
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`requirements.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff respectfully request that this Court enter judgment
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`against Defendants:
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`15
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`(a) Designating this action as a collective action and authorizing prompt issuance of
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`notice pursuant to 29 U.S.C. § 216(b) to all putative class members, apprising them of the
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`pendency of this action, its nature, and his right to join, and permitting them promptly to file
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`consents to be Plaintiff in the FLSA claims in this action;
`
`(b) Designating Plaintiff as Class Representatives, reasonable service awards for each
`
`Plaintiff, and his counsel of record as Class Counsel;
`
`(c) Declaring that Defendants have violated the overtime wage provisions of, and
`
`associated rules and regulations under, the FLSA as to Plaintiff and the FLSA class members;
`
`(d) Declaring that Defendants have violated the recordkeeping requirements of, and
`
`associated rules and regulations under, the FLSA with respect to Plaintiffs’ and the FLSA class
`
`members’ compensation, hours, wages, and any deductions or credits taken against wages;
`
`(e) Declaring that Defendants’ violation of the provisions of the FLSA were willful
`
`as to Plaintiff and the FLSA class members;
`
`(f) Awarding Plaintiff and the FLSA class member’s damages for the amount of
`
`unpaid overtime wages, and damages for any improper deductions or credits taken against wages
`
`under the FLSA as applicable;
`
`(g) Awarding Plaintiff and the FLSA class members liquidated damages in an amount
`
`equal to 100% of his damages for the amount of unpaid overtime wages, and damages for any
`
`improper deductions or credits taken against wages under the FLSA as applicable pursuant to 29
`
`U.S.C. § 216(b);
`
`(h) Declaring that Defendants have violated the overtime wage provisions of, and
`
`rules and orders promulgated under, the NYLL as to Plaintiff and the members of the Class;
`
`
`
`
`
`

`

`Case 1:22-cv-00318-LDH-RML Document 1 Filed 01/19/22 Page 17 of 17 PageID #: 17
`
`
`
`(i) Declaring that Defendants have violated the recordkeeping requirements of the
`
`NYLL with respect to Plaintiffs’ and the FLSA Class member’s compensation, hours, wages;
`
`and any deductions or credits taken against wages;
`
`(j) Awarding Plaintiff damages for Defendants’ violation of the NYLL notice and
`
`recordkeeping provisions, pursuant to NYLL §§198(1-b), 198(1-d);
`
`(k)
`
`Awarding Plaintiff damages for Defendant’s violation of the NYLL frequency of
`
`payment violation of Labor Law § 191(1)(a) which requires weekly payment of manual workers.
`
`(l) Awarding Plaintiff and the FLSA class members liquidated damages in an amount
`
`equal to one hundred percent (100%) of the total amount overtime compensation shown to be
`
`owed pursuant to NYLL § 663 as applicable;
`
`(m) Awarding Plaintiff and the FLSA class member’s pre-judgment and post-
`
`judgment interest as applicable;
`
`(n)
`
` Awarding Plaintiff and the FLSA class members the expenses incurred in this
`
`action, including costs and attorney’s fees; and
`
`(o) All such other and further relief as the Court deems just and proper.
`
`Dated: New York, New York
`January 18, 2022
`
`
`LINA STILLMAN, ESQ.
`
`___/s/ Lina Stillman ____________
`By:
`STILLMAN LEGAL, P.C.
`
`
`
`
`
`
`17
`
`

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