Alaina Simone Inc. v. Madden
| Decision Date | 28 December 2021 |
| Docket Number | 14914-14914A,Index No. 158106/18,Case Nos. 2021-00308, 2021-00309 |
| Citation | 200 A.D.3d 589,156 N.Y.S.3d 716 (Mem) |
| Parties | ALAINA SIMONE INCORPORATED et al., Plaintiffs–Appellants, v. Waverly MADDEN etc., et al., Defendants–Respondents. |
| Court | New York Supreme Court — Appellate Division |
Stropheus LLC, New York (Stuart Weichsel of counsel), for appellants.
Kern, J.P., Moulton, Mendez, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about August 13, 2019, which, to the extent appealed from as limited by the briefs, granted defendants’ motion under CPLR 3211(a)(8) and (c) insofar as dismissing plaintiffs’ cause of action for violation of the Fair Labor Standards Act (FLSA), unanimously affirmed. Order, same court and Justice, entered or about May 4, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion for an order under CPLR 321 directing defendant Waverly Madden (Madden), in her capacity as executor of the estate of Tamara Natalie Madden, to retain licensed counsel to represent the estate or, in the event she failed to do so, finding the estate in default, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings consistent with this decision.
The motion court properly dismissed plaintiffs’ FLSA claims pursuant to CPLR 3211 on the ground that the complaint is devoid of factual allegations showing that Madden was the employer of the workers used by plaintiff Alaina Simone Incorporated (ASI) in sorting and handling the artwork in the estate's possession in Georgia ( 29 USC § 203 [d]; see Herman v. RSR Security Servs., Ltd., 172 F.3d 132, 139 [2d Cir.1990] ; cf. Moses v. Griffin Indus., LLC, 369 F. Supp. 3d 538 [S.D. N.Y.2019] ). Plaintiffs’ complaint contains only conclusory allegations that Madden actually employed the plaintiff-employees and ASI merely acted as the paying agent. However, these allegations are insufficient to support plaintiffs’ claim of FLSA violations (see Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 85 [E.D. N.Y.2012] ). Furthermore, Madden individually had standing to move to dismiss the FLSA claims, as plaintiffs asserted in their motion papers that she could be held liable individually as an employer, and the same basis for dismissal of the FLSA claims against Madden also supports dismissal of the claims against her as executor of the estate.
Madden was also entitled to summary judgment dismissing the FLSA claims. In support of her motion, Madden averred that she did not know any of the employees retained by ASI in Georgia and was never involved in their hiring or in setting the terms of their employment and working hours. In opposition, plaintiffs failed to submit evidence sufficient to raise an issue of fact as to...
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...is barred under Judiciary Law § 478 from appearing pro se on behalf of the estate ( CPLR 321[1] ; see Alaina Simone Inc. v. Madden, 200 A.D.3d 589, 590, 156 N.Y.S.3d 716 [1st Dept. 2021] ; cf. Matter of Walsh, 17 Misc.3d 407, 412–413, 840 N.Y.S.2d 906 [Sur. Ct., Bronx County 2007] ). Althou......