Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`INDIVIDUALLY AND ON
`WENDY RATH,
`BEHALF OF ALL OTHERS SIMILARLY
`SITUATED,
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`v.
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`
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`Plaintiff,
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` DECISION AND ORDER
` 21-CV-791S
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`JO-ANN STORES, LLC,
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`Defendant.
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`I.
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`Introduction
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`In this diversity action Plaintiff (for herself and a class of similarly situated
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`employees) contends that Defendant Jo-Ann Stores, LLC, paid her biweekly, rather than
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`weekly as required for a manual worker such as her, violating New York Labor Law § 191
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`(Docket No. 24, First Am. Compl.; see Docket No. 1, Compl.).
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`Defendant moved to dismiss the original Complaint, arguing in part that Plaintiff
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`lacked Article III standing (Docket No. 13). On August 26, 2022, this Court terminated
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`that Motion to Dismiss and granted Plaintiff leave to amend her Complaint to allege her
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`standing, Rath v. Jo-Ann Stores, LLC, No. 21CV791, 2022 WL 3701163 (W.D.N.Y.
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`Aug. 26, 2022) (Skretny, J.) (Docket No. 23); familiarity with that Decision is presumed.
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`That earlier Decision left open the question whether Labor Law § 191 has a private right
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`of action.
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`Plaintiff then filed her Amended Complaint (Docket No. 24, First Am. Compl.),
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`expressly stating her grounds for standing (id. ¶¶ 11-16). Defendant does not now
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`challenge Plaintiff’s standing (cf. Docket No. 25, Def. Memo. at 2 (accepting alleged facts
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 2 of 23
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`as true for purposes of Motion)). Plaintiff alleges Defendant’s violation of Labor Law
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`§ 191, seeking (among other relief) liquidated damages under Labor Law § 198(1-a)
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`(Docket No. 24, First Am. Compl.).
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`Currently before this Court is Defendant’s Motion to Dismiss this Amended
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`Complaint and to dismiss her claim therein seeking liquidated damages (Docket No. 251).
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`Responses to this Motion were due by October 25, 2022, and reply by November 1, 2022
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`(Docket No. 26). Upon the timely submissions of both sides, the Motion was deemed
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`submitted without oral argument. This Court also considers the relevant arguments made
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`in Defendant’s initial Motion to Dismiss the original Complaint2.
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`The remaining questions are whether New York Labor Law § 191 establishes a
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`private right of action and, if so, can Plaintiff claim liquidated damages. On the first point,
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`both sides present competing New York State and federal court precedents on the
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`existence of this private right of action based upon other courts accepting the First
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`Department’s decision in Vega v. CM & Associates Construction Management, LLC,
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`176 A.D.3d 1144, 107 N.Y.S.3d 286 (1st Dep’t 2019).
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`For reasons stated herein, Defendant’s Motion to Dismiss the Amended Complaint
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`and deny Plaintiff’s claim for liquidated damages (Docket No. 25) is denied.
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`1In support of the pending Motion to Dismiss, Defendant submits its attorney’s Declaration with
`exhibits and Memorandum of Law, Docket No. 25, and its Reply Memorandum of Law, Docket No. 30.
`In opposition, Plaintiff submits her Memorandum of Law in opposition, Docket No. 27; her attorney’s
`Declaration with exhibits, Docket No. 28; and supplemental authority, Docket No. 29.
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`2Docket Nos. 13, 17, 18, 19, 20-22.
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`2
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`II.
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`Background
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`A. Alleged Facts
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`According to the Complaint (Docket No. 1) and the First Amended Complaint
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`(Docket No. 24), Defendant failed to pay Plaintiff and the putative class of manual workers
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`on a timely basis by paying them biweekly rather than weekly as required by Labor Law
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`§ 191(1). Plaintiff seeks to recover the amount of untimely paid wages as liquidated
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`damages, attorney’s fees, costs, pre- and post-judgment interest. (Docket No. 24, First
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`Am. Compl. ¶¶ 25-27.)
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`Plaintiff was employed by Defendant at its Batavia, New York, Fabric & Crafts store
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`from July 2019 to January 2021 then at its Williamsville, New York, store from January to
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`June 2021 (id. ¶ 11). She claims that at least a quarter of her job responsibilities included
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`manual labor (such as cutting fabrics for customers, stocking inventory, and working on
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`the sales floor and at the cash register) (id.). She was paid biweekly and Plaintiff now
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`alleges the harm from the late payment of her weekly wages to establish her standing to
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`sue in this Court (id. ¶¶ 11, 12-16). Defendant also does not argue that Plaintiff lacks
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`standing as alleged in her First Amended Complaint.
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`The Complaint also alleges a class of all persons who worked as manual workers
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`for Defendant in New York for six years before July 13, 2021 (when Plaintiff filed her
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`Complaint) (id. ¶ 12).
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`B. Proceedings
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`Defendant moved to dismiss the Complaint (Docket No. 13) arguing that Labor
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`Law § 191 does not have a private right of action and Plaintiff failed to allege standing for
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`proceeding in this Court (id., Def. Memo. at 4-15, 17). It alternatively argued that Plaintiff
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`3
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 4 of 23
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`is not entitled to liquidated damages (id. at 15-17). This Court’s August 26, 2022, Decision
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`terminated that Motion and ordered Plaintiff to amend her Complaint to allege grounds
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`for her standing, Rath, supra, 2022 WL 3701163.
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`After Plaintiff amended her Complaint (Docket No. 24, First Am. Compl.),
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`Defendant promptly filed the present Motion to Dismiss the First Amended Complaint
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`(Docket No. 25).
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`III.
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`Discussion
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`A. Applicable Standards
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`1. Motion to Dismiss
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`As previously observed, Rath, supra, 2022 WL 3701163, at *2, under
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`Rule 12(b)(6), this Court cannot dismiss a Complaint unless it appears “beyond doubt
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`that the plaintiff can prove no set of facts in support of his claim which would entitle him
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`to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As
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`the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127 S.Ct. 1955,
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`167 L.Ed.2d 929 (2007), a Complaint must be dismissed pursuant to Rule 12(b)(6) if it
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`does not plead “enough facts to state a claim to relief that is plausible on its face,” id. at
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`570 (rejecting longstanding precedent of Conley, supra, 355 U.S. at 45-46).
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`To survive a Motion to Dismiss, the factual allegations in the Complaint “must be
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`enough to raise a right to relief above the speculative level,” Twombly, supra, 550 U.S. at
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`555. As reaffirmed by the Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
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`173 L.Ed.2d 868 (2009),
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`“To survive a motion to dismiss, a complaint must contain sufficient factual
`matter, accepted as true, to ‘state a claim to relief that is plausible on its
`face.’ [Twombly, supra, 550 U.S.] at 570 . . . . A claim has facial plausibility
`when the plaintiff pleads factual content that allows the court to draw the
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`4
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 5 of 23
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`reasonable inference that the defendant is liable for the misconduct alleged.
`Id., at 556 . . . . The plausibility standard is not akin to a ‘probability
`requirement,’ but it asks for more than a sheer possibility that a defendant
`has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely
`consistent with’ a defendant’s liability, it ‘stops short of the line between
`possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets
`omitted).”
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`Iqbal, supra, 556 U.S. at 678 (citations omitted).
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`A Rule 12(b)(6) Motion is addressed to the face of the pleading. The pleading is
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`deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any
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`document incorporated in it by reference, Goldman v. Belden, 754 F.2d 1059 (2d Cir.
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`1985).
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`In considering such a Motion, the Court must accept as true all the well pleaded
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`facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,
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`754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general
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`legal conclusions necessary to prevail on the merits and are unsupported by factual
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`averments will not be accepted as true. New York State Teamsters Council Health and
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`Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).
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`2. New York Labor Law and Payment of Wages
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`a. Labor Law § 191 and Its Enforcement
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`Again as previously noted, Rath, supra, 2022 WL 3701163, at *3-5, under Article 6
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`for Payment of Wages of the New York Labor Law New York State requires employers to
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`make weekly payments of manual workers’ salaries “and no later than seven calendar
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`days after the end of the week in which the wages are earned,” N.Y. Labor Law
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`§ 191(1)(a). An employer with one thousand employees or more may be authorized by
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`the New York State Commissioner of Labor to pay its employees less frequently than
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`5
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`weekly but not less frequently than semi-monthly, id.; this waiver is not alleged here (see
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`Docket No. 24, First Am. Compl. ¶¶ 2-3).
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`Section 198 creates a cause of action for an employee or the New York State
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`Labor Commissioner to recover the full amount of any underpayment, liquidated
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`damages, with reasonable attorneys’ fees, prejudgment interest. That section, the
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`remedies provision of Article 6 states that
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`“In any action instituted in the courts upon a wage claim by an employee or
`the commissioner in which the employee prevails, the court shall allow such
`employee to recover the full amount of any underpayment, all reasonable
`attorney's fees, prejudgment interest as required under the civil practice law
`and rules, and, unless the employer proves a good faith basis to believe
`that its underpayment of wages was in compliance with the law, an
`additional amount as liquidated damages equal to one hundred percent of
`the total amount of the wages found to be due, except such liquidated
`damages may be up to three hundred percent of the total amount of the
`wages found to be due for a willful violation of section one hundred ninety-
`four of this article.”
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`N.Y. Labor L. § 198(1-a) (see Docket No. 25, Def. Memo. at 17 (emphasis removed);
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`Docket No. 13, Def. Memo. at 5; Docket No. 17, Pl. Memo. at 3); Gottlieb v. Kenneth D.
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`Laub & Co., 82 N.Y.2d 457, 459, 605 N.Y.S.2d 213, 214-15 (1993); see Konkur v. Utica
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`Acad. of Sci. Charter Sch., 38 N.Y.3d 38, 43-44, 165 N.Y.S.3d 1, 5 (2022).
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`b. Vega v. CM and Associates Construction
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`The First Department affirmed the denial of the defendant’s Motion to Dismiss by
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`the Bronx County Supreme Court of Irma Vega’s Labor Law § 191 claim, Vega, supra,
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`175 A.D.3d at 1144, 107 N.Y.S.3d at 287, aff’g Vega v. CM and Assocs. Constr. Mgmt.
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`LLC, Index No. 23559/2016E, 2018 WL 2367610 (N.Y. Sup., Bronx Cnty. May 15, 2018).
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`Plaintiff Vega sought liquidated damages and attorney’s fees pursuant to Labor Law
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`§ 198(1-a) which applies to wage claims under Article 6 of the Labor Law, which includes
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`§ 191, Vega, supra, 175 A.D.3d at 1144-45, 107 N.Y.S.3d at 287. The First Department
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`observed that the plain language of § 198 indicated that “individuals may bring suit for
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`any ‘wage claim’ against an employer,” id. at 1145, 107 N.Y.S.3d at 287, including
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`violations of Article 6 and § 191 underpayment, id. at 1145, 107 N.Y.S.3d at 287-88. The
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`court then applied the dictionary meaning of “underpayment,” that is paying less than
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`what is normal or required, id. at 1145, 107 N.Y.S.3d at 288 (quoting Merriam-Webster’s
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`Collegiate Dictionary 1364 (11th ed. 2012)), in rejecting defendant’s argument excluding
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`instances of underpayment or late payment where the employer eventually pays the
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`outstanding wages, id. Further, “the moment that an employer fails to pay wages in
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`compliance with section 191(1)(a), the employer pays less than what is required,” id. at
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`1145, 107 N.Y.S.3d at 288. The court concluded that “Labor Law § 198(1-a) expressly
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`provides a private right of action for a violation of Labor Law § 191,” id. at 1146, 107
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`N.Y.S.3d at 288.
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`Alternatively, the First Department concluded that a private right of action was
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`implied since plaintiff was “one of the class for whose particular benefit the statute was
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`enacted,” positing that a private right of action “would promote the legislative purpose of
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`the statute and the creation of such a right would be consistent with the legislative
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`scheme,” id. at 1146, 107 N.Y.S.3d at 289. That legislative purpose of § 191 is to protect
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`manual workers who are dependent on their wages for sustenance, id. at 1146,
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`107 N.Y.S.3d at 289, while § 198 has the purpose “to deter abuses and violations of the
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`labor laws,” id. at 1146, 107 N.Y.S.3d at 289 (quoting P&L Group v. Garfinkel, 150 A.D.2d
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`663, 664, 541 N.Y.S.2d 535, 537 (2d Cir. 1989). The First Department concluded that an
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`implicit private right of action here is consistent with legislative scheme of § 198, id. at
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`1146-47, 107 N.Y.S.3d at 289.
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`c. Existence of Private Right of Action for Labor Law
`Claim and Federal Court Application of State Law
`At issue is whether Labor Law § 191 creates a private right of action for not being
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`paid weekly. Defendant contends that there is no express or implied right of action
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`despite the First Department’s decision in Vega (Docket No. 25, Def. Memo. at 5-14, 14-
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`17).
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`An appendix to this Decision below lists New York State and federal cases decided
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`after Vega, essentially all concluding that a private right of action exists, with some of
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`these cases cited in the August 26th Decision and in the parties briefing prior to that
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`Decision, Rath, supra, 2022 WL 3701163, at *3-4. The trend of the cases after Vega
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`recognizes this private right of action.
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`The New York State Court of Appeals has not resolved this dispute (see, e.g.,
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`Docket No. 21, Pl. [2d] Supp’al Auth., Ex. B, Rodriguez v. Williams-Sonoma, Inc., No. 22-
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`CV-2546 (GRB)(JMW) (E.D.N.Y. Aug. 5, 2022), Docket No. 24, Tr. at 13 (right of action
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`under § 191 yet to be resolved by the Court of Appeals)); Gordon v. Bluetriton Brands,
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`Inc., No. 20 Civ. 2138 (S.D.N.Y.) (Docket No. 29, Pl. Supp’al Auth., Ex. B, Gordon, Tr., of
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`Oct. 20, 2022, at 4) (believing that New York Court of Appeals would agree with Vega
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`that Labor Law has private right of action).
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`The closest decision on this issue may be the Court of Appeals’ ruling on the
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`existence of a private right of action but under another provision of the Labor Law. In
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`Konkur v. Utica Academy of Science Charter School, supra, 38 N.Y.3d 38, 165 N.Y.S.3d
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`1 (Docket No. 19, Def. Supp’al Auth., Ex. A; see Docket No. 25, Def. Memo. at 8, 12, 16),
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`the Court of Appeals considered whether Labor Law § 198-b (prohibiting wage kickbacks)
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`which lacked an express private right of action contains an implied private right of action.
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`There, the Court of Appeals held that § 198-b did not have an implied private right of
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`action based on the court’s review of that section’s legislative history. Konkur, supra, 38
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`N.Y.3d at 39, 40-45, 165 N.Y.S.3d at 2, 3-6. That court concluded that a private right of
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`action for wage kickback was incompatible with the enforcement mechanism enacted by
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`the Legislature, id. at 42, 165 N.Y.S.3d at 4 (quoting Cruz v. TD Bank, N.A., 22 N.Y.3d
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`61, 70-71, 979 N.Y.S.2d 257, 262 (2013); quoting in turn without citations Sheehy v. Big
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`Flats Comm. Day, Inc., 73 N.Y.2d 629, 634-35, 543 N.Y.S.2d 18, 21 (1989)).
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`When applying New York law, this Court first looks to the New York Court of
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`Appeals decisions on this point. If that court has not ruled on the matter, decisions of the
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`Supreme Court, Appellate Division, are dispositive. “As a federal court applying state
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`law,” observed the Second Circuit, “we are generally obliged to follow the state law
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`decisions of state intermediate appellate courts . . . in the absence of any contrary New
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`York authority or other persuasive data establishing that the highest court of the state
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`would decide otherwise,” Broder v. Cablevision Sys. Corp., 418 F.3d 187, 199-200 (2d
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`Cir. 2005) (quoting Pentech Int’l, Inc. v. Wall St. Clearing Co., 983 F.2d 441, 446 (2d Cir.
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`1993), quoting in turn West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179,
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`85 L.Ed. 139 (1940)); V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir. 2010) (see also
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`Docket No. 27, Pl. Memo. at 22).
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`Defendant counters that this Court should predict how the New York State Court
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`of Appeals would decide the issue (Docket No. 25, Def. Memo. at 12), citing Phansalkar
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`v. Andersen Weinroth & Co., 344 F.3d 184, 199 (2d Cir. 2003) (this Court must give
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`“proper regard” to the decisions of state’s lower courts), while the Appellate Division and
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`state trial court decisions are not binding on this Court (id. citing Philadelphia Indem. Ins.
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`Co. v. Indian Harbor Ins. Co., 434 F. Supp.3d 4, 10 (E.D.N.Y. 2020)). Decisions from
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`these other state courts, albeit not binding, are helpful indicators of how the Court of
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`Appeals would rule and “are a basis for ascertaining state law which is not to be
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`disregarded by a federal court unless it is convinced by other persuasive data that the
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`highest court of the state would decide otherwise,” DiBella v. Hopkins, 403 F.3d 102, 112
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`(2d Cir. 2005); Philadelphia Indem., supra, 434 F. Supp.3d at 10.
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`3. Liquidated Damages
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`Liquidated damages usually are the amount “contractually stipulated as a
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`reasonable estimation of actual damages to be recovered by one party if the other party
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`breaches,” Bryan Garner, Black’s Law Dictionary 447 (9th ed. 2009).
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`Remedies under Labor Law § 198(1-a) to the Labor Commissioner or the
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`employee include payment of liquidated damages, defined there as the additional amount
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`above “full amount of any such underpayment,” equal to 100% of the total amount of
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`wages found to be due, N.Y. Labor Law § 198(1-a). Liquidated damages may be trebled
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`for willful violation of Labor Law § 194 (pay discrimination), id., not alleged here.
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`B. Parties’ Contentions
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`In its initial Motion, Defendant asserts that under Article VI of the New York Labor
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`Law of which § 191(1) is a part allows for a private right of action (Docket No. 13, Def.
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`Memo. at 4-15). However, Defendant contends that New York Labor Law § 198
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`addresses a right of action only for alleged underpayment of salary, N.Y. Labor Law §
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`198(1-a), and does not apply when a manual worker is untimely paid biweekly (id. at 4-
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`5).
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`In the pending Motion Defendant renews this argument that Plaintiff fails to state
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`a claim because New York Labor Law § 191 does not create an express or implied right
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`of action for delayed payments of salary (Docket No. 25, Def. Memo. at 5-14, 14-17).
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`Citing Konkur, supra, 38 N.Y.3d 38, 165 N.Y.S.3d 1, Defendant believes that the New
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`York State Court of Appeals also would reject Vega and conclude there is no private right
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`of action under § 191 for delayed payments (id. at 12-13). Defendant contends that Vega
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`is not applicable and that subsequent cases are mixed whether they follow Vega (id. at
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`13-14). Moreover, Defendant distinguishes the federal cases that purport to apply Vega
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`to unpaid (or underpaid) wage claims from untimely payment cases, recognizing only
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`private right of action under § 198 for the former (Docket No. 30, Def. Reply Memo. at 1,
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`3, 3-5). Defendant concludes that untimely wage payment claims, however, are only
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`enforceable by the Commissioner of Labor (id. at 3-5). Last, Defendant argues that
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`liquidated damages for nonpayment or underpayment claims are recoverable by the
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`employee, but a delayed payment claim (such as under Labor Law § 191) is not (id. at 6-
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`7).
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`Plaintiff relies upon the First Department’s holding in Vega, supra, 175 A.D.3d
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`1144, 107 N.Y.S.3d 286, that there is a private right of action under Labor Law § 191(1)
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`(Docket No. 27, Pl. Memo. at 5-11; see also Docket No. 17, Pl. Memo. at 5-11, 17-18, 11-
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`17). She argues that there is no persuasive evidence that the New York State Court of
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`Appeals would rule contrary to the First Department’s conclusion in Vega (Docket No. 27,
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`Pl. Memo. at 2). She lists at least fifteen cases that follow Vega (id. at 2-4; listed in
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`Appendix below) while Defendant relies upon pre-Vega decisions (see id. at 4 & n.1).
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`Plaintiff also argues that the cases before Vega found this private right of action existed
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`(id. at 5-7). Plaintiff concludes that Defendant’s delayed payments do not exempt
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`Defendant from liquidated damages (Docket No. 27, Pl. Memo. at 19-22). Plaintiff later
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`submitted supplemental authority (Docket No. 29) from another federal court, Gordon v.
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`Bluetriton Brands, Inc., No. 20 Civ. 2138 (S.D.N.Y.), which followed Vega (Docket No. 29,
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`Ex. B, Gordon, Tr., of Oct. 20, 2022, at 3-7, 4-5).
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`Finally, both parties cite to the legislative history for amendments to Article 6 of the
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`Labor Law to conclude either that the Legislature intended a private right of action under
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`the Labor Law with liquidated damages (Docket No. 27, Pl. Memo. at 8-10) or did not
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`(Docket No. 30, Def. Reply Memo. at 4; Docket No. 25, Def. Memo. at 16-17).
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`C. Existence of Private Right of Action Under Labor Law § 191
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`This Court’s present role is to determine if there is persuasive argument that the
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`New York State Court of Appeals would decide differently than that there is a private right
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`of action for claims under the Labor Law. This Court lacks the authority to certify the
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`question of whether there a private right of action for untimely wage payments to the Court
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`of Appeals directly to seek the definitive answer, see 2d Cir. R. 27.2(a) (if state law
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`permits, the Second Circuit may certify a question of state law to the state’s highest court);
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`N.Y. Court of Appeals R. 500.27(a). The New York Court of Appeals rule restricts
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`certification for questions from the United States Supreme Court, any United States Court
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`of Appeals, or a state’s court of last resort, N.Y. Court of Appeals R. 500.27(a) (see also
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`Docket No. 21, Pl. [2d] Supp’al Auth., Ex. B, Rodriguez, supra, Docket No. 24, Tr. at 13-
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`14) (district court “would love to certify question to Court of Appeals of New York State
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`but of course I’m no allowed to do that”)).
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`While the Appellate Term in Phillips v. Max Finkelstein, Inc., 73 Misc.3d 1, 3-4, 153
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`N.Y.S.3d 750, 751-52 (App. Term 2d Dep’t 2021), aff’g as modified, 66 Misc.3d 514, 115
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`N.Y.S.3d 866 (County Ct. Suffolk Cnty. 2019), felt bound by stare decisis to adhere to the
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`Vega decision until Second Department or New York Court of Appeals rules on the matter,
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`this Court is not so bound. Rather, this Court must be prescient as to the direction the
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`Court of Appeals might take, using Appellate Division and trial court decisions as
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`potentially showing the direction the Court of Appeals might take. This Court also notes
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`the trend of the federal courts (and most lower New York State courts) applying Article 6
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`of the New York Labor Law concluding that, pursuant to Vega, there is a private right of
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`action under New York Labor Law § 191, as listed in the Appendix below.
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`Absent definitive ruling by the New York Court of Appeals, this Court adopts the
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`holding of Vega and concludes that New York Labor Law § 191 has a private right of
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`action. Labor Law § 198 provides the means for employees to litigate claims under Article
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`6 of the Labor Law, including for delayed payment of wages under § 191.
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`Defendant argues that nonpayment or underpayment of wages is actionable by
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`the employee but other violations of Article 6 (including delayed wage payment) is not
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`(see Docket No. 30, Def. Reply Memo. at 3). Defendant relies upon one post-Vega
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`decision, the State Supreme Court decision in Grant v. Global Aircraft Dispatch, which
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`held that there is no private right of action under Labor Law § 198(1-a) for what that court
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`termed a “frequency of pay violation” of § 191 because there was no claim for unpaid
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`wages, 2021 WL 6777500, at *3 (Sup. Ct. Queens Cnty. Apr. 20, 2021) (citing pre-Vega
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 14 of 23
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`cases), appeal pending. The court there did not cite Vega but relies upon another Queens
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`County Supreme Court decision, Hunter v. Planned Bldg. Servs., Inc., Index
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`No. 715053/2017, 2018 WL 3392476, at *2 (Sup. Ct. Queens Cnty. June 20, 2018) (citing
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`Hussain), a decision from the Suffolk County Supreme Court, Kruty v. Max Finkelstein,
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`Inc., 65 Misc.3d 1236(A), 119 N.Y.S.3d 831 (Table) (Sup. Ct. Suffolk Cnty. 2019), and an
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`earlier federal court decision, Hussain v. Pakistan Int’l Airlines Corp., No. 11-CV-932
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`(ERK) (WP), 2012 WL 5289541, at *3 (E.D.N.Y. Oct. 23, 2012) (holding there was no
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`private action for frequency of payment violations), Grant, supra, 2021 WL 6777500, at
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`*3.
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`The cases cited by the Grant court are distinguishable. Another federal court
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`declined to follow Hunter because of the Appellate Division’s decision in Vega, Scott v.
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`Whole Foods Market Group, Inc., No. 18-CV-0086 (SJF) (AKT), 2020 WL 9814095, at *2
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`(E.D.N.Y. Feb. 5, 2020).
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`Again, there is no New York State Court of Appeals decision directly on point.
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`Konkur considered a different section of Article 6 of the Labor Law, the ban on illegal
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`kickbacks of salaries, N.Y. Labor L. § 198-b, concluding that § 198-b differs from other
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`provisions of Article 6 and thus the State Legislature in enacting that section did not create
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`or intend a private right of action for § 198-b, see Konkur, supra, 38 N.Y.3d at 40, 44-45,
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`165 N.Y.S.3d at 3, 5-6.
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`There appears to be a split among the Appellate Divisions whether there is a
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`private right of action for violation of § 191. A trial court stated that the Second
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`Department in 1997 in IKEA, 241 A.D.2d 454, 660 N.Y.S.2d 585, implied that there was
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`no such private right of action, see Kruty, supra, 65 Misc.3d at 1236(A) at *3, whereas the
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 15 of 23
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`First Department in Vega held that there is, Vega, supra, 175 A.D.3d 1144, 107 N.Y.S.3d
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`286. The Third and Fourth Departments have not decided whether § 191 has a private
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`right of action. The Fourth Department held that § 198 is not a substantive provision but
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`recognized that it contains remedies available to prevailing employees, Salahuddin v.
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`Craver, 163 A.D.3d 1508, 1510-11, 82 N.Y.S.3d 291, 293 (4th Dep’t 2018) (quoting
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`Villacorta v. Saks Inc., 32 Misc.3d 1203[A], 2011 WL 2535058 (Sup. Ct. N.Y. Cnty. 2011),
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`citing Gottlieb, supra, 82 N.Y.2d at 459-65, 605 N.Y.S.2d at 214-18).
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`Also discussed above, state trial court opinions after Vega (save Grant) apply that
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`decision to recognize the private right of action. There is no contrary data or authority to
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`suggest the New York Court of Appeals would decide to the contrary. This Court also
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`observes that federal courts after Vega uniformly follow suit (as listed in the Appendix
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`below). The standard, however, is whether there is substantial evidence that the New
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`York Court of Appeals would agree or not.
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`Defendant’s arguments essentially are that the First Department erred in
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`concluding that a private right of action exists.
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`After surveying this precedent cited by both parties, this Court believes that the
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`State’s highest court would conclude that delayed payment is a form of underpayment,
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`see Vega, supra, 175 A.D.3d at 1145, 107 N.Y.S.3d at 288 (“the term underpayment
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`encompasses the instances where an employer violates the frequency requirements of
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`section 191(1)(a) but pays all wages due before the commencement of an action”); Rojas
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`v. Hi-Tech Metals, Inc., Index No. 702847/2019, 2019 WL 4570161, at *2-3 (Sup. Ct.
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`Queens Cnty. Sept. 11, 2019). Thus, a manual worker has a private right of action under
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`Labor Law § 191 to enforce timely, complete payment of her wages.
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 16 of 23
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`It is the combination of sections 191 and 198(1-a) that creates an express private
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`right of action for untimely wage payments. Section 191 creates the substantive right for
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`the manual employee to timely and complete wage payments and § 198(1-a) furnishes
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`the procedures and remedies available for violations. The Court of Appeals
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`acknowledged that § 198(1-a) provides remedies for violations of substantive provisions
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`of Article 6 of the Labor Law, Gottlieb, supra, 82 N.Y.2d at 459, 605 N.Y.S.2d at 214-15;
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`see Konkur, supra, 38 N.Y.3d at 43-44, 165 N.Y.S.3d at 5 (section 198(1-a) relief must
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`be related to wage claims based upon violations of Labor Law Article 6, naming as an
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`example § 191). The logical next step would be for the Court of Appeals to conclude that
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`a manual worker has a private right of action to enforce receipt of weekly wages, with
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`remedies from § 198(1-a).
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`With this conclusion that the New York Court of Appeals would recognize a private
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`right of action here, Defendant’s Motion to Dismiss the Amended Complaint (Docket
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`No. 25) of Plaintiff alleging violation of New York Labor Law § 191 is denied. Concluding
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`that the New York Court of Appeals would find an express private right of action for
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`violations of § 191, this Court need not determine whether an alternative implied private
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`right of action exists.
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`D. Liquidated Damages
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`Plaintiff seeks liquidated damages for the untimely paid weekly wages (Docket
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`No. 24, First Am. Compl. ¶ 27) pursuant to New York Labor Law § 198(1-a) and its remedy
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`of “an additional amount as liquidated damages” equal to 100% of total wages found to
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`be due.
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 17 of 23
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`1. Parties’ Arguments
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`The First Department concluded in Vega that “liquidated damages may be
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`available under Labor Law § 198(1-a) to provide a remedy to workers complaining of
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`untimely payment of wages, as well as nonpayment or partial payment of wages,” Vega,
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`supra, 175 A.D.3d at 1146, 107 N.Y.S.3d at 288. There, the court then quoted the
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`legislative history for 1967 amendments to § 198 explaining the rationale for liquidated
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`damages and concluded that “the employee loses the use of money whether he or she is
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`never paid, partially paid, or paid late,” id. at 1146 n.2, 107 N.Y.S.3d at 288 n.2; see
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`Governor’s Approval Mem., Bill Jacket, 1967, Ch. 310, 1967 N.Y. Legis. Ann. at 271 (see
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`also Docket No. 28, Pl. Atty. Dec. ¶ 5, Ex. 4, at page 17 of 17 (copy of Memorandum of
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`Industrial Commissioner for Bill Jacket L. 1967, ch. 310)).
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`Assuming for argument that this Court accepts Vega as precedent, Defendant
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`alternatively argues against imposition of liquidated damages (Docket No. 25, Def. Memo.
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`at 17-19). Defendant now construes Labor Law § 198(1-a) to preclude liquidated
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`damages when all wages are paid, arguing a further ground for rejecting Vega (Docket
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`No. 25, Def. Memo. at 17-18). Defendant rejects the analogy to the provision of the Fair
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`Labor Standards Act imposing liquidated damages for unpaid minimum wage, overtime,
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`or tips, see 29 U.S.C. § 216(b), to Labor Law § 198(1-a) (id. at 18). Defendant argues
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`the affirmative defense of full payment precludes liquidated damages (id. at 18-19).
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`Furthermore, without liquidated damages, Defendant concludes that Plaintiff could not
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`claim a federal diversity class action to meet the $5 million amount in controversy
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`threshold of the Class Action Fairness Act of 2005, Pub. L. No. 109-2, Sec. 4, 119 Stat.
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`4; 28 U.S.C. § 1332(d)(6) (id. at 18 n.5).
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`Case 1:21-cv-00791-WMS Document 32 Filed 11/29/22 Page 18 of 23
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`Resting upon the analysis from Vega, Plaintiff responds that the First Department
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`rejected a similar argument concluding that eventual payment does not eviscerate the
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`remedies of § 198(