`
`Michael P. Pappas, Esq. (MP 6716)
`MICHAEL P. PAPPAS LAW FIRM, P.C.
`3 Columbus Circle, 15th Floor
`New York, New York 10019
`(646) 770-7890 (phone)
`(646) 417-6688 (fax)
`
`Attorneys for Plaintiff
`
`
`UNITED STATES DISTRICT
`EASTERN DISTRICT OF NEW YORK
`
`KEITH NOBLE,
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`
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`Plaintiff,
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`-against-
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`THE CHEESECAKE FACTORY INCORPORATED,
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`
`
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` No.
`
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`COMPLAINT
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`DEMAND FOR JURY TRIAL
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`Defendant.
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`
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`Plaintiff Keith Noble, as and for his Complaint against Defendant The Cheesecake
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`Factory Incorporated, alleges as follows:
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`JURISDICTION AND VENUE
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`1.
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`This Court has original federal question jurisdiction under 28 U.S.C. § 1331
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`because this case is brought under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.
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`(“FLSA”). This Court has supplemental jurisdiction over the New York Labor Law
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`(“NYLL”) claims under 28 U.S.C. § 1367 because they are so related to the claims in this
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`action within original jurisdiction that they form part of the same case or controversy under
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`Article III of the United States Constitution.
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`2.
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`Venue is proper in this District under 28 U.S.C. § 1391 because Plaintiff
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`resides in this District, Defendant resides and/or conducts business in this District, and the
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`acts and/or omissions giving rise to the claims herein took place in this District.
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`THE PARTIES
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`3.
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`Defendant The Cheesecake Factory Incorporated (“Cheesecake Factory” or
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`the “Company”) is a Delaware corporation with its principal place of business at 26901
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`Malibu Hills Road, Calabasas Hills, California 91301. Cheesecake Factory is a well-known
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`national restaurant chain that owns and operates at least a dozen restaurants in New York
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`State, including the Cheesecake Factory restaurant located at Lake Grove, New York,
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`where Plaintiff was formerly employed. Cheesecake Factory has an annual gross volume
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`of sales in excess of $500,000 and is engaged in interstate commerce. At all relevant times,
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`Cheesecake Factory was a covered “employer” within the meaning of the FLSA and
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`NYLL.
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`4.
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`Plaintiff Keith Noble is an adult male individual who resides in the State of
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`New York, Suffolk County. Mr. Noble was employed by Cheesecake Factory from
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`approximately 2007 through 2021.
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`DEFENDANT’S WAGE AND HOUR VIOLATIONS
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`5.
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`Keith Noble was a long-time, loyal, highly-performing employee of
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`Cheesecake Factory. He started with the Company more than 15 years ago, and for the last
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`9 years of his employment was employed as a so-called “Kitchen Manager” in North
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`Carolina and New York State.
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`2
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`6.
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`Mr. Noble was employed by Cheesecake Factory as a “Kitchen Manager”
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`in North Carolina from approximately 2012 to April 2021, and as a “Kitchen Manager” in
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`New York State from approximately April 2021 through December 2021.
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`7.
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`Throughout his tenure as a “Kitchen Manager” at Cheesecake Factory, Mr.
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`Noble was classified as “exempt” and paid a set salary, which was the same regardless of
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`the number of hours he worked.
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`8.
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`Despite Cheesecake Factory’s denomination of Mr. Noble as a “manager,”
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`he was required to spend a significant portion of his working hours performing non-exempt
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`staff level work in the kitchen, including, inter alia, preparing food, cleaning, running
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`orders, and similar manual tasks. Mr. Noble spent the majority of each shift performing
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`these non-exempt tasks, and only a small minority of the time performed duties that could
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`properly be classified as managerial in nature. Overall, his primary duty was kitchen work,
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`not management.
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`9.
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`Throughout his employment at Cheesecake Factory, Mr. Noble worked
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`long hours and was extremely productive for the Company. As a so-called “Kitchen
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`Manager,” he typically worked 10-hour scheduled shifts, five days a week, and also
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`performed work before and after his scheduled hours. On average, and based on Mr.
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`Noble’s best recollection, he worked 50-60 hours per week, which equates to 10-20 hours
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`of overtime per week (or 15 hours of overtime per week on average).
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`10.
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`There were many specific weeks during the limitations period(s) applicable
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`to this action when Mr. Noble worked in excess of 40 hours, and he was not paid overtime
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`in any of those weeks.
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`3
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`11.
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`Despite the fact that the vast majority of Mr. Noble’s time was spent
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`performing non-exempt tasks as his primary duty, Cheesecake Factory erroneously
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`classified him as an “exempt” executive employee under the FLSA and NYLL, and did not
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`pay him any overtime for the extensive hours he worked in excess of 40 per week.
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`12.
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`Because Mr. Noble did not fall within any applicable overtime exemption,
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`Cheesecake Factory unlawfully failed to pay him overtime for all hours he worked in
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`excess of 40 per week during the applicable limitations period(s).
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`13.
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`Under the FLSA, in cases of misclassification where the employee was paid
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`a set salary, the overtime rate is determined by dividing the employee’s weekly salary by
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`the total number of hours he actually worked that week. That number constitutes the
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`employee’s “regular rate” per hour, and the overtime rate is 1.5 times the regular rate. The
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`“time-and-a-half” overtime rate is then multiplied by the number of overtime hours the
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`employee worked that week, i.e., the number of hours in excess of 40.
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`14.
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`Under the NYLL, in cases of misclassification where the employee was paid
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`a set salary, the overtime rate for hospitality industry employees is determined by dividing
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`the employee’s weekly salary by 40 hours. See N.Y.C.R.R. § 146-3.5 (Hospitality Industry
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`Wage Order). That number constitutes the employee’s “regular rate” per hour, and
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`overtime is 1.5 times the regular rate.
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`15.
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`Here, at all relevant times, Mr. Noble was paid an annual salary of
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`approximately $60,000.00, and his weekly wage equated to approximately $1,154.00.
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`16.
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`Applying the above methods of calculation, and estimating that Mr. Noble
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`worked an average of 15 hours of overtime per week each week during the applicable
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`limitations periods, Cheesecake Factory owes Mr. Noble unpaid overtime in an amount to
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`4
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`be determined at trial but believed to exceed $70,000.00, not including liquidated damages,
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`costs, and attorneys’ fees.
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`17.
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`In addition to unpaid overtime, Cheesecake Factory’s misclassification of
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`Mr. Noble resulted in other violations of the NYLL that entitle him to additional damages.
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`18.
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`Employers in New York are legally required to provide every employee, at
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`the start of employment and upon any change in rate or method of compensation, with an
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`accurate written notice of the employee’s “rate or rates of pay and basis thereof, whether
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`paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any,
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`claimed as part of the minimum wage, including tip, meal, or lodging allowances; the
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`regular pay day designated by the employer in accordance with section one hundred ninety-
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`one of this article; the name of the employer; any ‘doing business as’ names used by the
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`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; the telephone number of the employer,” and, for all
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`employees who are not exempt from overtime compensation, “the regular hourly rate and
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`overtime rate of pay.” See NYLL § 195; 12 N.Y.C.R.R. § 146-2.2. The mandatory penalty
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`for failing to provide proper wage notices is $50.00 per day up to a maximum of $5,000.00.
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`See NYLL § 198(1-b).
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`19.
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`In addition, New York employers are required to provide every employee
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`with an accurate wage statement each time they receive their wages. The wage statement
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`must contain “the dates of work covered by that payment of wages; name of employee;
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` name of employer; address and phone number of employer; rate or rates of pay and basis
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`thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other;
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` gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and
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`5
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`net wages.” Also, “[f]or all employees who are not exempt from overtime compensation
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`…, the statement shall include 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
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`worked.” See NYLL § 195; 12 N.Y.C.R.R. § 146-2.3. Again, the mandatory penalty for
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`failing to provide proper wage notices is $50.00 per day up to a maximum of $5,000.00.
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`See NYLL § 198(1-b).
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`20.
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`Because Cheesecake Factory misclassified Mr. Noble as “exempt” during
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`his employment in New York State, the Company never provided him with complete and
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`accurate wage statements or wage notices containing, for example, his hours worked,
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`regular hourly rate, and overtime rate. Mr. Noble worked approximately 270 days for
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`Cheesecake Factory in New York State. Therefore, Cheesecake Factory is liable to Mr.
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`Noble for an additional $10,000.00 in penalties.
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`21.
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`The NYLL requires that employees who are “manual workers” must be paid
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`no less frequently than once a week. See NYLL § 191(1)(a). A manual worker is defined
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`as someone who spends more than 25% of his time performing physical labor. See N.Y.S.
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`Dept. of Labor, “Frequency of Pay Frequently Asked Questions” (“It has been the long-
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`standing interpretation of this Department that individuals who spend more than 25% of
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`working time engaged in ‘physical labor’ fit within the meaning of the term ‘manual
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`worker.’”)
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`22. Mr. Noble spent more than 25% of his time performing manual tasks,
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`including, inter alia, preparing food, cleaning, running orders, and other manual labor.
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`Therefore, he was a “manual worker” and was entitled to be paid on a weekly basis while
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`6
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`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 7 of 12 PageID #: 7
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`employed in New York State. In derogation of the law, Cheesecake Factory paid him on a
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`bi-weekly basis, rendering half of his pay late under the NYLL.
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`23.
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`Under the NYLL, an employee who demonstrates late payment of wages is
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`entitled to liquidated damages equal to the amount of the late paycheck, even if he
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`eventually received the paycheck. See, e.g., Art. 6, NYLL §§ 191, 198; Vega v CM &
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`Assoc. Constr. Mgt., LLC, 175 A.D.3d 1144, 1145-46, 107 N.Y.S.3d 286, 287-89 (1st
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`Dep’t 2019). Plaintiff estimates these liquidated damages as approximately $20,200.00,
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`which is based on 50% of Mr. Noble’s base salary during his employment in New York
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`State.
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`24.
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`FIRST CLAIM FOR RELIEF
`(FLSA Overtime Wage Claim)
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`Plaintiff realleges and incorporates by reference all preceding paragraphs as
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`if they were fully set forth again at length herein.
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`25.
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`At all relevant times, Defendant has been, and continues to be, an
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`“employer” engaged in interstate “commerce” and/or in the production of “goods” for
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`“commerce,” within the meaning of the FLSA, 29 U.S.C. § 203. At all relevant times,
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`Defendant has employed “employee[s],” including Plaintiff.
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`26.
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`During the statute of limitations period(s) covered by these claims, Plaintiff
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`regularly worked in excess of forty hours per work week.
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`27.
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`At all relevant times, Defendant has operated under a decision, policy and
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`plan, and under common policies, programs, practices, procedures, protocols, routines, and
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`rules, of willfully failing and refusing to pay Plaintiff at 1.5 times his regular rate for all
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`work in excess of forty hours per work week, even though Plaintiff was entitled to such
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`overtime pay.
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`7
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`28.
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`At all relevant times, Defendant willfully, regularly, and repeatedly failed
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`to pay Plaintiff at the required overtime rate, 1.5 times his regular rate, for hours worked
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`in excess of forty per work week.
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`29.
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`As a result of Defendants’ willful violations of the FLSA, Plaintiff is
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`entitled to recover from Defendant damages in the amount of his unpaid overtime
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`compensation, liquidated (double) damages as provided by the FLSA for overtime wage
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`violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court
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`deems just and proper.
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`SECOND CLAIM FOR RELIEF
`(New York State Overtime Claim)
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`Plaintiff realleges and incorporates by reference all preceding paragraphs as
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`30.
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`if they were fully set forth again at length herein.
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`31.
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`At all relevant times, Defendant has been, and continues to be, an
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`“employer” within the meaning of the NYLL, § 190, et seq. At all relevant times,
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`Defendant has employed “employee[s],” including Plaintiff.
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`32.
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`During the statute of limitations period covered by these claims, Plaintiff
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`regularly worked in excess of forty hours per work week.
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`33.
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`It is unlawful under New York law for an employer to suffer or permit a
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`non-exempt employee to work without paying overtime wages for all hours worked in
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`excess of forty (40) hours in any work week.
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`34.
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`At all relevant times, Defendant willfully, regularly, and repeatedly failed
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`to pay Plaintiff at the required overtime rate, which is 1.5 times the employee’s regular
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`rate, for hours worked in excess of forty (40) per work week.
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`8
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`35.
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`Defendant’s failure to pay Plaintiff overtime was willful within the meaning
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`of NYLL § 663.
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`36.
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`As a result of Defendant’s willful violations of the NYLL, Plaintiff is
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`entitled to recover from Defendant his unpaid overtime compensation, liquidated (double)
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`damages as provided by the NYLL for overtime wage violations, attorneys’ fees and costs,
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`pre- and post-judgment interest, and such other legal and equitable relief as this Court
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`deems just and proper.
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`THIRD CLAIM FOR RELIEF
`(Pay Frequency Violations Under NYLL)
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`Plaintiff realleges and incorporates by reference all preceding paragraphs as
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`37.
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`if they were fully set forth again at length herein.
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`38.
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`At all relevant times, Defendant has been, and continues to be, an
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`“employer” within the meaning of the NYLL, § 190, et seq. At all relevant times,
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`Defendant has employed “employee[s],” including Plaintiff.
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`39.
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`At all relevant times, more than 25% of each of Plaintiff’s work days and
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`work weeks during his employment by Defendant was spent performing manual tasks;
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`therefore, Plaintiff was a “manual worker” within the meaning of the NYLL.
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`40.
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`Under NYLL § 191(1)(a), manual workers such as Plaintiff are required to
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`be paid no less frequently than on a weekly basis.
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`41.
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`On multiple occasions during the statute of limitations period covered by
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`these claims, Defendant knowingly failed to timely pay Plaintiff his earned wages on a
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`weekly basis, resulting in the late payment of wages.
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`42.
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`The aforesaid conduct of Defendant was knowing, intentional, and willful.
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`9
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`43.
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`By its aforesaid conduct, Defendant willfully violated the provisions of the
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`NYLL regarding timely payment of wages, NYLL Art. 6 § 191, et seq.
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`44.
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`Plaintiff is thereby entitled to recover from Defendants liquidated damages
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`in the amount of his untimely-paid wages, as provided by the NYLL for wage violations,
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`as well as interest, attorneys’ fees and costs, and such other legal and equitable relief as
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`this Court deems just and proper.
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`FOURTH CLAIM FOR RELIEF
`(New York State Wage Notice Claim)
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`Plaintiff realleges and incorporates by reference all preceding paragraphs as
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`45.
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`if they were fully set forth again at length herein.
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`46.
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`Pursuant to Section 195 of the NYLL, Defendant was required to provide
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`Plaintiff upon hire, or upon any change in the rate or manner of payment, with written
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`notice of his “rate or rates of pay and basis thereof, whether paid by the hour, shift, day,
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`week, salary, piece, commission, or other; allowances, if any, claimed as part of the
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`minimum wage, including tip, meal, or lodging allowances; the regular pay day designated
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`by the employer in accordance with section one hundred ninety-one of this article; the name
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`of the employer; any ‘doing business as’ names used by the employer; the physical address
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`of the employer's main office or principal place of business, and a mailing address if
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`different; the telephone number of the employer,” and, for all employees who are not
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`exempt from overtime compensation, “the regular hourly rate and overtime rate of pay”.
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`47.
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`Throughout the statute of limitations period covered by these claims,
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`Defendant failed to provide Plaintiff with true and accurate wage notices required pursuant
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`to NYLL § 195, either upon hire or upon changing the rate and method of Plaintiff’s
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`compensation.
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`10
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`48.
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`As a result of Defendant’s willful violations of the NYLL, Plaintiff is
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`entitled to recover from Defendant a penalty of $50 per day for each violation, not to exceed
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`$5,000, under NYLL § 198(1-b).
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`FIFTH CLAIM FOR RELIEF
`(New York State Wage Statement Claim)
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`Plaintiff realleges and incorporates by reference all preceding paragraphs as
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`49.
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`if they were fully set forth again at length herein.
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`50.
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`Pursuant to Section 195 of the NYLL, New York employers are required to
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`provide every employee with a wage statement (commonly referred to as a pay stub) each
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`time they receive their wages. The wage statement must contain “the dates of work covered
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`by that payment of wages; name of employee; name of employer; address and phone
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`number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift,
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`day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if
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`any, claimed as part of the minimum wage; and net wages.” Also, “[f]or all employees
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`who are not exempt from overtime compensation …, the statement shall include the regular
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`hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours
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`worked, and the number of overtime hours worked.”
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`51.
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`During the statute of limitations period covered by these claims, Defendant
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`failed to provide Plaintiff with true and accurate wage statements required pursuant to
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`NYLL § 195, in that his wage statements did not set forth the number of hours worked, his
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`hourly rate of pay, or his overtime rate of pay.
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`52.
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`As a result of Defendant’s willful violations of the NYLL, Plaintiff is
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`entitled to recover from Defendant a penalty of $50 per day for each violation, not to exceed
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`$5,000, under NYLL § 198(1-b).
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`11
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully pray for relief against Defendant as follows:
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`A.
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`An award of damages, according to proof, including liquidated damages, to
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`be paid by Defendant;
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`Penalties available under applicable laws;
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`Costs of action incurred herein, including expert fees;
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`Attorneys’ fees, including fees pursuant to 29 U.S.C. § 216, NYLL § 663,
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`and other applicable statutes;
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`Pre-judgment and post-judgment interest, as provided by law; and
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`Such other and further relief as the Court may deem just, equitable, and
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`B.
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`C.
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`D.
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`E.
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`F.
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`proper.
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`Dated: July 11, 2022
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`By:
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`MICHAEL P. PAPPAS LAW FIRM, P.C.
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`
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`s/Michael P. Pappas
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`Michael P. Pappas, Esq. (MP 6716)
`3 Columbus Circle, 15th Floor
`New York, New York 10019
`T: (646) 770-7890
`F: (646) 417-6688
`
`
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`Attorneys for Plaintiff
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`12
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