Case 1:22-cv-02138-EK-VMS Document 1 Filed 04/13/22 Page 1 of 10 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`------------------------------------------------------------------------X
`HEBER FIGUEROA, individually and on behalf of all others
`similarly situated,
`
`
` Plaintiff,
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`
`-against-
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`K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE and
`SHIN JUNG, as an individual,
`
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` Defendants.
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`COLLECTIVE ACTION
`COMPLAINT
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`JURY TRIAL
`REQUESTED
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`Plaintiff, HEBER FIGUEROA, individually and on behalf of all others similarly situated
`(hereinafter referred to as “Plaintiff”) by his attorneys at Helen F. Dalton & Associates, P.C.,
`alleges, upon personal knowledge as to himself and upon information and belief as to other
`matters, as follows:
`
`PRELIMINARY STATEMENT
`against
`action
`this
`through
`undersigned
`counsel,
`bring
`1. Plaintiff,
`K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE and SHIN JUNG, as
`an individual, (collectively hereinafter, “Defendants”) to recover damages for
`Defendants’ egregious violations of state and federal wage and hour laws arising out
`of Plaintiff’s employment with the Defendants located at 5111 Church Ave., Brooklyn,
`NY 11203.
`2. As a result of the violations of Federal and New York State labor laws delineated
`below, Plaintiff seeks compensatory damages and liquidated damages in an amount
`exceeding $100,000.00. Plaintiff also seeks interest, attorneys’ fees, costs, and all
`other legal and equitable remedies this Court deems appropriate.
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`
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`JURISDICTION AND VENUE
`3. This Court has subject matter jurisdiction over Plaintiff’s federal claims pursuant to
`the FLSA, 29 U.S.C. §216 and 28 U.S.C. §1331.
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`4. This Court has supplemental jurisdiction over Plaintiff’s other state law claims
`pursuant to 28 U.S.C. §1367.
`5. Venue is proper in the EASTERN District of New York pursuant to 28 U.S.C.
`§1391(b) because a substantial part of the events or omissions giving rise to the claims
`herein occurred in this judicial district.
`6. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C.
`§§2201 & 2202.
`
`THE PARTIES
`7. Plaintiff HEBER FIGUEROA residing in Brooklyn, NY, 11226, was employed by
`K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE from in or around August
`2016 until in or around December 2021.
`8. Defendant, K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE is a New York
`domestic business corporation, organized under the laws of the State of New York
`with a principal executive office located at 5111 Church Ave., Brooklyn, NY, 11203.
`9. Upon information and belief, Defendant SHIN JUNG is the owner of K&S FARM
`BROOKLYN INC. d/b/a K&S FRUIT STORE.
`10. Upon information and belief, Defendant SHIN JUNG is an agent of K&S FARM
`BROOKLYN INC. d/b/a K&S FRUIT STORE.
`11. Upon information and belief SHIN JUNG is responsible for overseeing the daily
`operations of K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE.
`12. Upon information and belief, SHIN JUNG has power and authority over all the final
`personnel decisions of K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE.
`13. Upon information and belief, SHIN JUNG has the power and authority over all final
`payroll decisions of K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE,
`including the Plaintiff.
`14. Upon information and belief, SHIN JUNG has the exclusive final power to hire the
`employees of K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE, including
`the Plaintiff.
`15. Upon information and belief, SHIN JUNG has exclusive final power over the firing
`and terminating of the employees of K&S FARM BROOKLYN INC. d/b/a K&S
`FRUIT STORE, including Plaintiff.
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`16. Upon information and belief, SHIN JUNG is responsible for determining, establishing,
`and paying the wages of all employees of K&S FARM BROOKLYN INC. d/b/a K&S
`FRUIT STORE, including the Plaintiff, setting their work schedules, and maintaining
`all their employment records of the business.
`17. Accordingly, at all relevant times hereto, Defendant SHIN JUNG was Plaintiff’s
`employer within the meaning and the intent of the FLSA, and the NYLL.
`18. At all times relevant to the allegations contained in the complaint, Corporate
`Defendants were, and are, enterprises engaged in interstate commerce within the
`meaning of the FLSA in that K&S FARM BROOKLYN INC. d/b/a K&S FRUIT
`STORE (i) has purchased goods, tools, and supplies for its business through the
`streams and channels of interstate commerce, and has had employees engaged in
`interstate commerce, and/ or in the production of goods intended for commerce, and
`handle, sell and otherwise work with goods and material that have been moved in or
`produced for commerce by any person: and (ii) has had annual gross volume of sales
`of not less than $500,000.00.
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`FACTUAL ALLEGATIONS
`19. Plaintiff HEBER FIGUEROA was employed by K&S FARM BROOKLYN INC. d/b/a
`K&S FRUIT STORE, as a vegetable sorter, produce sorter, stocker and cashier while
`performing related miscellaneous duties for the Defendants, from in or around August
`2016 until in or around December 2021.
`20. Plaintiff HEBER FIGUEROA regularly worked five (5) days per week from in or
`around August 2016 until in or around December 2021.
`21. Throughout Plaintiff HEBER FIGUEROA’s employment with the Defendants,
`Plaintiff regularly worked a schedule of shifts consisting of: i) one (1) shift beginning
`at approximately 9:00 a.m. and ending at approximately 8:00 p.m.; ii) three (3) shifts
`beginning at approximately 8:00 a.m. and ending at approximately 6:00 p.m.; and iii)
`one (1) shift beginning at approximately 8:00 a.m. and ending at approximately 8:00
`p.m.
`22. Thus, Plaintiff was regularly required to work fifty-three (53) hours or more hours,
`from in or around August 2016 until in or around December 2021.
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`23. Plaintiff HEBER FIGUEROA was paid by Defendants at a rate of:
`approximately $700.00 per week from in or around August 2016 until in or
`i.
`around December 2017;
`ii. approximately $13.00 per hour from in or around January 2018 until in or around
`December 2018;
`iii. approximately $15.00 per hour from in or around January 2019 until in or around
`December 2021.
`24. Although Plaintiff regularly worked fifty-three (53) hours or more hours, from in or
`around August 2016 until in or around December 2021, the Defendants did not pay
`Plaintiff at a wage rate of time and a half (1.5) for his hours regularly worked over
`forty (40) in a work week, a blatant violation of the overtime provisions contained in
`the FLSA and NYLL.
`25. Additionally, Plaintiff HEBER FIGUEROA worked in excess of ten (10) or more
`hours per day approximately two (2) days a week from in or around August 2016 until
`in or around December 2021, however, Defendants did not pay Plaintiff an extra hour
`at the legally prescribed minimum wage for each day worked over ten (10) hours, a
`blatant violation of the spread of hours provisions contained in the NYLL.
`26. Upon information and belief, Defendants willfully failed to post notices of the
`minimum wage and overtime wage requirements in a conspicuous place at the location
`of their employment as required by both the NYLL and the FLSA.
`27. Upon information and belief, Defendants willfully failed to keep payroll records as
`required by both NYLL and the FLSA.
`28. Additionally, Defendants willfully failed to provide Plaintiff with a written notice, in
`English, of his applicable regular rate of pay, regular pay day, and all such information
`as required by NYLL §195(1).
`29. Upon information and belief, Defendants willfully failed to provide Plaintiff with any
`wage statements, upon each payment of his wages, as required by NYLL §195(3).
`30. As a result of these violations of Federal and New York State labor laws, Plaintiff
`seeks compensatory damages and liquidated damages in an amount exceeding
`$100,000.00. Plaintiff also seeks statutory interest, attorneys’ fees, costs, and all other
`legal and equitable remedies this Court deems appropriate.
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`COLLECTIVE ACTION ALLEGATIONS
`31. Plaintiff brings this action on behalf of themselves, and other employees similarly
`situated as authorized under the FLSA, 29 U.S.C. § 216(b). The employees similarly
`situated are hereafter, the “Collective Class.”
`32. Collective Class: All persons who are or have been employed by the Defendants as
`vegetable sorters, produce sorters, stockers, cashiers or any other similarly titled
`personnel with substantially similar job requirements and pay provisions, who were
`performing the same sort of functions for Defendants, other than the executive and
`management positions, who have been subject to Defendants’ common practices,
`policies, programs, procedures, protocols and plans including willfully failing and
`refusing to pay required overtime wages.
`33. Upon information and belief, Defendants employed 10 to 15 employees or more
`during the relevant statutory period who Defendants subject(ed) to similar unlawful
`payment structures that violated applicable law.
`34. Defendants suffered and permitted Plaintiff - and the Collective Class - to regularly
`work more than forty hours per week without appropriate overtime compensation.
`35. Defendants’ unlawful conduct herein has been widespread, repeated, and consistent.
`36. Defendants had knowledge that the Plaintiff and the Collective Class regularly
`performed work requiring overtime pay.
`37. Defendants’ conduct as set forth in this Complaint, was willful and in bad faith - and
`has caused significant damages to Plaintiff, as well as the Collective Class.
`38. Defendants are liable under the FLSA for failing to properly compensate Plaintiff, and
`the Collective Class, and as such, notice should be sent to the Collective Class. There
`are numerous similarly situated current and former employees of Defendants who have
`been denied overtime pay and proper minimum wage pay in violation of the FLSA and
`NYLL, who would benefit from the issuance of a Court-supervised notice of the
`present lawsuit, and the opportunity to join the present lawsuit. Those similarly
`situated employees are known to Defendants and are readily identifiable through
`Defendants’ records.
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`39. The questions of law and fact common to the putative class predominate over any
`questions affecting only individual members.
`40. The claims of Plaintiff are typical of the claims of the whole putative class.
`41. Plaintiff and their counsel will fairly and adequately protect the interests of the
`putative class.
`42. A collective action is superior to other available methods for the fair and efficient
`adjudication of this controversy.
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`FIRST CAUSE OF ACTION
` Overtime Wages Under The Fair Labor Standards Act
`43. Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`paragraphs.
`44. Plaintiff has consented in writing to be a party to this action, pursuant to 29 U.S.C.
`§216(b) et seq.
`45. At all times relevant to this action, Plaintiff was engaged in interstate commerce
`and/or was engaged in the production of goods for/through the channels of interstate
`commerce within the meaning of 29 U.S.C. §§206(a) and 207(a), et seq.
`46. At all times relevant to this action, Defendants were employers engaged in commerce
`or the production of goods for commerce within the meaning of 29 U.S.C. §§206(a)
`and 207(a).
`47. Defendants willfully failed to pay Plaintiff’s overtime wages for all hours regularly
`worked in excess of forty (40) hours per week at a wage rate of one and a half (1.5)
`times the regular wage, to which Plaintiff was entitled under 29 U.S.C. §§206(a) in
`violation of 29 U.S.C. §207(a)(1).
`48. Defendants’ violations of the FLSA as described in this Complaint have been willful
`and intentional. Defendants have not made any good faith effort to comply with their
`obligations under the FLSA with respect to the compensation of the Plaintiff.
`49. Due to Defendants’ FLSA violations, Plaintiff is entitled to recover from Defendants,
`jointly and severally, his unpaid wages and an equal amount in the form of liquidated
`damages, as well as reasonable attorneys’ fees and costs of the action, including
`interest, pursuant to the FLSA, specifically 29 U.S.C. §216(b).
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`SECOND CAUSE OF ACTION
`Overtime Wages Under New York Labor Law
`50. Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`paragraphs.
`51. At all times relevant to this action, Plaintiff were employed by Defendants within the
`meaning of New York Labor Law §§2 and 651.
`52. Defendants failed to pay Plaintiff’s overtime wages for hours worked in excess of
`forty hours per week at a wage rate of one and a half (1.5) times the regular wage to
`which Plaintiff were entitled under New York Labor Law §652, in violation of 12
`N.Y.C.R.R. 137-1.3, et seq.
`53. Due to Defendants’ New York Labor Law violations, Plaintiff is entitled to recover
`from Defendants, jointly and severally, their unpaid overtime wages and an amount
`equal to their unpaid overtime wages in the form of liquidated damages, as well as
`reasonable attorneys’ fees and costs of the action, including interest in accordance with
`NY Labor Law §198(1-a).
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`THIRD CAUSE OF ACTION
`Spread of Hours Compensation Under New York Labor Law
`54. Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`paragraphs.
`55. Defendants willfully violated Plaintiff’s rights by failing to pay Plaintiff an additional
`hour of pay at minimum wage for each day worked more than ten (10) hours, in
`violation of the New York Minimum Wage Act and its implementing regulations.
`N.Y. Labor Law §§ 650 et seq.; 12 N.Y. C. R. R. § 142-2.4
`56. Due to Defendants’ New York Labor Law violations, Plaintiff is entitled to recover
`from Defendants his unpaid spread of hour compensation, reasonable attorneys’ fees,
`and costs of the action, pursuant to N. Y. Labor Law § 663 (1).
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`FOURTH CAUSE OF ACTION
`Violation of the Wage Statement Requirements of the New York Labor Law
`57. Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`paragraphs.
`58. Defendants failed to provide Plaintiff with wage statements, upon each payment of his
`wages, as required by NYLL §195(3).
`59. Defendants are liable to Plaintiff in the amount of $5,000.00 together with costs and
`attorneys’ fees.the action, including interest in accordance with NYLL §198 (1-a).
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`FIFTH CAUSE OF ACTION
`Violation of the Notice and Recordkeeping Requirements of the New York Labor Law
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`60. Plaintiff re-allege and incorporate by reference all allegations in all preceding
`paragraphs.
`61. Defendants failed to provide Plaintiff with a written notice of their rate of pay, regular
`pay day, and such other information as required by NYLL §195(1).
`62. Defendants are liable to Plaintiff in the amount of $5,000.00 per Plaintiff, together
`with costs and attorneys’ fees.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff respectfully request that judgment be granted:
`a. Declaring Defendants’ conduct complained herein to be in violation of the
`Plaintiff’s rights under the FLSA, the New York Labor Law, and its regulations;
`b. Awarding Plaintiff’s unpaid overtime wages;
`c. Awarding Plaintiff’s unpaid spread of hours compensation;
`d. Awarding Plaintiff liquidated damages pursuant to 29 U.S.C. §216 and New
`York Labor Law §§198(1-a), 663(1);
`e. Awarding Plaintiffs prejudgment and post-judgment interest;
`f. Awarding Plaintiffs the costs of this action together with reasonable attorneys’
`fees; together with such further relief as this court deems necessary and proper.
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`DEMAND FOR TRIAL BY JURY
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demand a
`trial by jury on all questions of fact raised by the complaint.
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`Dated: April 13, 2022
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` Kew Gardens, NY
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`_______________________________
`Roman Avshalumov (RA 5508)
`Helen F. Dalton & Associates, P.C.
`80-02 Kew Gardens Road, Suite 601
`Kew Gardens, New York 11415
`Telephone: 718-263-9591
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`Case 1:22-cv-02138-EK-VMS Document 1 Filed 04/13/22 Page 10 of 10 PageID #: 10
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`HEBER FIGUEROA individually and on behalf of all others similarly situated,
`
`
` Plaintiff,
`
`
`-against-
`
`
`
`
`
`
`K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE and SHIN JUNG, as an individual,
`
`
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`
`
`
`
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` Defendants,
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`COLLECTIVE ACTION COMPLAINT
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`Jury Trial Demanded
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`HELEN F. DALTON & ASSOCIATES, P.C.
` Attorneys for the Plaintiff
` 80-02 Kew Gardens Road
` Suite 601
` Kew Gardens, New York 11415
` Phone: (718) 263-9591
` Fax: (718) 263-9598
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`To:
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`K&S FARM BROOKLYN INC. d/b/a K&S FRUIT STORE
`5111 Church Ave., Brooklyn, NY 11203
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`SHIN JUNG
`5111 Church Ave., Brooklyn, NY 11203
`
`46 Westbury Ave., Plainview, NY 11803
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