Martin v. Rest. Assocs. Events Corp.

• Citation: 2013 N.Y. Slip Op. 03304,106 A.D.3d 785,966 N.Y.S.2d 436
• Parties: Jenica MARTIN, et al., respondents, v. RESTAURANT ASSOCIATES EVENTS CORP., et al., appellants.
• Decision Date: 08 May 2013
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 785
966 N.Y.S.2d 436
2013 N.Y. Slip Op. 03304

Jenica MARTIN, et al., respondents,
v.
RESTAURANT ASSOCIATES EVENTS CORP., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

May 8, 2013.

[966 N.Y.S.2d 437]

Littler Mendelson, P.C., New York, N.Y. (Andrew P. Marks and Craig Benson of counsel), for appellants.

Virginia & Ambinder, LLP, New York, N.Y. (Lloyd R. Ambinder, James Emmet Murphy, and LaDonna M. Lusher of counsel), and Leeds, Morelli & Brown, P.C., Carle Place, N.Y. (Lenard Leeds and Jeffrey K. Brown of counsel), for respondents (one brief filed).

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

[106 A.D.3d 785]In an action to recover damages for violations of Labor Law § 196–d, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Scheinkman, J.), dated January 12, 2012, as denied that branch of their motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought to recover damages for alleged violations of Labor Law § 196–d occurring prior to March 1, 2011.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs are former and current employees of the defendant catering companies. The plaintiffs commenced this action to recover damages based on the defendants' alleged violations of Labor Law § 196–d. The defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought to recover damages for alleged violations of Labor Law § 196–d occurring prior to March 1, 2011, the date when new regulations regarding Labor Law § 196–d went into effect ( see12 NYCRR 146–2.18[b]; 146–2.19[a] ).

Labor Law § 196–d provides, in pertinent part, that “[n]o employer ... shall demand or accept, directly or indirectly, any part of the gratuities received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” In Samiento v. World Yacht Inc., 10 N.Y.3d 70, 74, 854 N.Y.S.2d 83, 883 N.E.2d 990, which was decided before the regulations went into effect on March 1, 2011, the Court of Appeals held that depending upon the circumstances, even a mandatory service charge added to a bill “may be a ‘charge purported to be a gratuity’ within [106 A.D.3d 786]the meaning of [Labor Law § 196–d].” The Court stated that a mandatory service charge can purport to be a gratuity “when it is...