Tortorella v. Postworks N.Y. LLC

• Decision Date: 19 July 2011
• Docket Number: Index No. 112686/10
• Parties: ROCCO TORTORELLA, Plaintiff, v. POSTWORKS NEW YORK LLC, DAVID ROSEN and ROBERT DeMARTIN, Defendants.
• Court: New York Supreme Court

2011 NY Slip Op 32014

ROCCO TORTORELLA, Plaintiff, v.POSTWORKS NEW YORK LLCDAVID ROSEN and ROBERT DeMARTIN, Defendants.

Index No. 112686/10

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 11

Dated: July 13, 2011

Filed: July 19, 2011

Joan A. Madden, J.

In this action to recover unpaid compensation, defendantsPostWorks New York LLC("PostWorks"), David Rosen("Rosen"), and Robert DeMartin("DeMartitf")(together, "Defendants") move pursuant to CPLR 3211(a)(1) and (7) to dismiss the first count of the complaint against them, which alleges violations of the New York Labor Law("Labor Law").PlaintiffRocco Tortorella("Tortorella") opposes the motion, and seeks sanctions.The motion is granted in part and denied in part for the reasons stated below.

Background

The following description is based on the facts asserted in the complaint and exhibit thereto, except as stated otherwise.

PostWorks is a company which provides post-production services to the film and television industries and owns multiple post-production facilities.In or about July 2007, Tortorella signed an agreement (the "Agreement") with PostWorks, which is attached as an exhibit to the complaint, pursuant to which he was to be employed as an "audio producer" with an annual salary of $90,000.00.While the Agreement states that Tortorella was to be employed as an "audio producer" at PostWork's Soho Facility (the "Soho Facility"), the complaint alleges that Tortorella was employed as "Director of Sound Services" pursuant to the Agreement, and this title is consistent with various evidence submitted in connection with this motion.

Pursuant to the terms of the Agreement, Tortorella was to be responsible for "managing the workflow of the audio rooms at the Soho [F]acility," coordinating scheduling issues, and was expected to be the "voice and face for the audio department."Agreement¶1.The Agreement further provides that if PostWorks develops an audio transfer department (a "Transfer Department"), Tortorella will have additional responsibilities and increased compensation for assuming these additional responsibilities.Id.

PostWorks did develop a Transfer Department and Tortorella and his superior, Joe Caterini("Caterini"), agreed that Tortorella would be paid 10% of the annual revenue of the Transfer Department as the additional compensation contemplated in the Agreement (the "Additional Compensation").Complaint, ¶¶ 1-12.Tortorella was "intimately involved in the formation and operation of the Transfer Department."Id.at ¶ 13.

In or about August 2008, Tortorella was advised by a superior that PostWorks would need to defer payment of the Additional Compensation to the following year due to cash flow constraints.Id.at ¶ 14.The superior requested that Tortorella agree to defer the Additional Compensation and assured Tortorella that in 2009he would be paid the Additional Compensation for both his work in 2007-08 and 2008-09, which totaled about $60,000.00.Id.at ¶15.Upon this assurance, Tortorella agreed to defer the payment of the Additional Compensation.

Some months later, the superior advised Tortorella that Rosen, PostWorks' President, and DeMartin, the Chief Operating Officer, had decided not to pay Tortorella the Additional Compensation for his work in 2007-08 and 2008-09.Rosen and DeMartin's responsibilities included the hiring and firing of employees as well as determining the rates and methods of compensation payments.

On or about June 1, 2009, Tortorella attended a meeting with Rosen and DeMartin to discuss the Additional Compensation.Rosen and DeMartin acknowledged that PostWorks owed Tortorella the Additional Compensation, but indicated that they believed it was more than Tortorella deserved to be paid.

Tortorella requested a second meeting with Rosen and DeMartin, which took place on June 12, 2009.At this meeting, Rosen and DeMartin again acknowledged that PostWorks owed Tortorella the Additional Compensation and "reiterated their refusal to make the required payment, and offered $1,500 in exchange for Tortorella waiving his claims."Complaint, |23.Later on that day, Tortorella returned to Rosen's office and was offered $7,500 in exchange for waiving his claims.At that time, Rosen advised Tortorella that he could either accept the $7,500 or quit.It appears that at sometime after this meeting, Tortorella either quit his job at PostWorks or PostWorks terminated his employment.

The moving papers and related exhibits submitted by Defendants show that Tortorella testified at a hearing (the "Benefits Hearing") on July 21, 2010, before Hon. Nicole Beason, an administrative law judge, regarding his entitlement to unemployment benefits.

Tortorella commenced this action by filing a summons and complaint asserting causes of action against PostWorks, Rosen, and DeMartin for violations of the Labor Law, breach of contract, unjust enrichment, quantum meruit, and estoppel.At issue in this motion is the viability of the Labor Law claim pursuant to Labor Law Section 191("Section 191") and Labor Law Section 193("Section 193").

Section 191 provides requirements for the frequency of payment for certain kinds of employees enumerated in the statute, including "clerical and other workers."¹Section 193provides in relevant part that an employer is prohibited from making any deductions from the wages of an employee except as authorized by applicable law, rules, or regulations, or as authorized by the employee in writing for the employee's benefit.²

The first count of the complaint, which seeks recovery under Sections 191and193, alleges that Tortorella is an employee and PostWorks is an employer within the meaning of Labor Law Section 190("Section 190"), and that Rosen and DeMartin also qualify as employers under Section 190 and can be held personally liable.It further alleges that in exchange for working in (and helping to create) the Transfer Department, Tortorella was entitled to receive the Additional Compensation, which constitutes a wage under Section 190.Complaint \29.It is further alleged that, in violation of Sections 191and193, Defendants"have willfully and without justification failed to pay [the Additional Compensation] due to Tortorella," and that Defendants"deducted and refused to pay those portions of Tortorella's compensation, including wages and bonuses, not in accordance with any law or rule or regulation... and not as expressly authorized by Tortorella in writing and for Tortorella's own benefit."Complaint¶¶30-32.

The complaint further alleges that by reason of Defendants' willful breach of these provisions of the Labor Law, Tortorella has been damaged in excess of $60,000 in unpaid wages and seeks liquidated damages equal to 25% of the payments owing as well as attorneys' fees costs and disbursements.

Defendants argue that the first count of the complaint, seeking recovery under the Labor Law Section 191andSection 193, must be dismissed for failure to state a cause of action.Defendants additionally argue that to the extent that the complaint alleges a violation of Section 191 of the Labor Law, such claim must be dismissed pursuant to CPLR 3211(a)(1) as contrary to documentary evidence, including the Affirmation and Supplemental Affirmation of Sarah M. DeFranco("DeFranco"), an attorney associated with Akermann Senterfitt LLP, attorneys for Defendants, the Affidavit of Joe Caterini, and the transcript of Tortorella's testimony at the Benefits Hearing.

In her Affirmation and Supplemental Affirmation, DeFranco states that she reviewed the file from the Benefits Hearing, and describes portions of the tape which concern Tortorella's job responsibilities and asserts that these portions support the Defendants' position that Tortorella worked in an executive or administrative capacity.DeFranco also attaches a transcript of Tortorella's testimony at the Benefits Hearing with her Supplemental Affirmation and states that Tortorella testified that he was employed by PostWorks as Director of Sound Services, and the transcript from the Benefits Hearing shows that Tortorella stated, "I was the director of sound services.I was not an audio producer."DeFrancoSupp. Aff. ¶4;Benefits HearingTr. 23.DeFranco also states that Tortorella indicated that he supervised three PostWorks employees (DeFrancoAff. ¶5), and this is reflected in the transcript of the Benefits Hearing (Benefits HearingTr. 45-46; 50-51).However, certain portions of the transcript of the Benefits Hearingon which DeFranco relies are largely described as "inaudible" in the transcript (SeeBenefits HearingTr. 23-28), as is a significant portion of Tortorella's testimony.

In his affidavit, Joe Caterini("Caterini"), who was formerly employed by PostWorks as the "Executive Vice President, Sales," states that Tortorella was hired as the Director of Sound Services and that Tortorella reported to the General Manager of PostWorks' Audio Department, Bill Ivie who in turn reported to Caterini and DeMartin.CateriniAff. ¶¶2-3.Caterini further states that Tortorella was responsible for managing the workflow of the audio rooms within the audio department at the Soho Facility, creating and managing the audio transfer function within the audio department, overseeing quality control related to the audio transfer work performed, and ensuring that all client needs relating to audio work performed at the Soho Facility were fulfilled.Id.at ¶4.Additionally, Caterini states that Tortorella customarily and regularly exercised discretion and independent judgment in performing his duties, and that he"customarily and regularly directed the work of two or more employees in the audio department."Id.at ¶6.

Defendants argue that the complaint fails to state a cause of action under Section 191 as Tortorella does not belong to any of the categories of workers to which Section 191 applies, including the category of "clerical and other worker."The term ...