The Beatrice Inn Wage Lawsuit
The Beatrice Inn Wage Lawsuit
The Beatrice Inn Wage Lawsuit
150225/2018
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similarly situated,
: SUMMONS
Plaintiff, Date Filed: January 9, 2018
-against- :
Plaintiff designates
BUTCHER'S BLOCK HOSPITALITY, LLC, and: New York County as
ANGELA MAR, the Place of trial.
Defendants. :
------------------------------------------------------------------------X ———
January 9, 2018
Yours, etc.,
Brian S. Schaffer
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Angela Mar
Windels Marx Lane & Mittendorf, LLP
156 West 56th Street
New York, NY 10019
Attn.: Bruce F. Bronster, Esq.
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similarly situated,
:
Plaintiff,
-against- : CLASS ACTION
COMPLAINT
BUTCHER'S BLOCK HOSPITALITY, LLC, and :
ANGELA MAR,
:
Defendants. :
------------------------------------------------------------------------X X
Plaintiff Dmitry Gurvits, on behalf of himself and on behalf of all others similarly situated,
by his attorneys, Fitapelli & Schaffer, LLP, files this Class Action Complaint against Defendants
Butcher's Block Hospitality, LLC and Angela Mar, upon personal knowledge as to himself, and
misappropriated and other damages for Plaintiff and his situated co-workers -
tips, similarly
captains, bussers, bartenders, barbacks, and other similarly situated non-managerial employees
Workers"
(collectively, "Tipped Workers")
- who work or have worked at the Beatrice Inn located at 285 W
"Defendants"
Angela Mar (collectively. "Defendants"), the Beatrice Inn is a critically acclaimed high end
house"
"chop restaurant located in New York City.
Workers'
3. During Plaintiff's employment, Defendants applied a tip credit to Tipped
wages and paid Tipped Workers a reduced minimum wage rate. Defendants, however, did not
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satisfy the requirements under the New York Labor Law ("NYLL") by which they could take a tip
requiring them to engage in a tip distribution scheme where tips were shared with employees that
are not entitled to tips under the NYLL including, but not limited to, Bar Managers and Silverware
Polishers.
5. Tipped Workers are required to perform side work at the start, during, and the end
of every shift.
6. As a result, Tipped Workers spend more than 20% of their work time and/or in
7. The duties that Defendants required Tipped Workers to perform are duties
"back-of-the-house"
customarily assigned to employees in other restaurants, who typically
8. The side work that Defendants require Tipped Workers to perform include, but is
not limited to: (1) cleaning and breaking down the bar; (2) setting up tables; (3) ironing
tablecloths; (4) cleaning votive holders by pouring hot water into them to melt the wax, running
through the dish machine, and resting candles; (5) folding napkins; (6) stocking the bar with
straws, napkins, liquor, juices, syrups, shakes, spoons, strainers, cleaning rag; (7) cutting lemons,
limes, grapefruit and oranges; (8) picking and bunching herbs; (9) setting up bus bins and trash
9. The side work that Defendants require of Tipped Workers is not specific to
particular customers, tables, or sections, but is performed in mass quantities for the entire shift or
for future shifts. Furthermore, Defendants require Tipped Workers to perform most side work
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before the restaurant opened or after the restaurant closed and customers had left. As means of
example, opening Tipped Workers are required to arrive at approximately 2:00 p.m. through 3
p.m. when the restaurant does not open until 5:30 p.m. Defendants also require Tipped Workers
to remain at the restaurant after customers leave to perform closing side work.
10. Plaintiff brings this action on behalf of himself and all similarly situated current
and former Tipped Workers pursuant to Civil Practice Law and Rule ("CPLR") 901 to remedy
violations of the NYLL, Article 6, §§ 190 et seq., and Article 19, §§ 650 et seq., and the
Agreement"
11. Plaintiff is a party to an "Employment dated July 26, 2017, hereinafter
Agreement."
the "Employment
Waiver"
contains a "Class Action prohibiting class wide resolution of Plaintiff's Claims. Recently,
the Supreme Court, Appellate Division for the First Judicial Department determined similar
waivers to be invalid. See Gold v. New York Life Ins. Co., 59 N.Y.S.3d 316 (N.Y. App. Div. 1st
Dept. 2017). As a result of Gold, the class waiver in Plaintiff's arbitration agreement is invalid and
Plaintiff can lawfully bring his claims on a class wide basis in this forum.
13. The Court has jurisdiction over this matter pursuant to NYLL, Article 6, §§ 190 et
seq.
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THE PARTIES
Plaintiff
Dmitry Gurvits
New York.
Beatrice Inn from on or around July 26, 2017 through November 26, 2017.
Defendants
17. Defendants have employed and/or jointly employed Plaintiff and similarly
18. Each Defendant has had substantial control over Plaintiff's and similarly situated
employees'
working conditions, and over the unlawful policies and practices alleged herein.
19. During all relevant times, Defendants have been Plaintiff's and similarly situated
employees'
employers within the meaning of the NYLL.
20. Together with the other Defendants, Defendant Butcher's Block Hospitality, LLC
(" Block"
("Butcher Block") has owned and/or operated the Beatrice Inn during the relevant period.
21. Butcher Block is a domestic business limited liability company organized and
Name"
22. Butcher Block is the "Premises that appears on the active New York State
Inn,"
Liquor License for the premises doing business as "Beatrice with its address listed as 285 W
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23. Butcher Block is a covered employer within the meaning of the NYLL and, at all
24. At all relevant times, Butcher Block has maintained control, oversight, and
direction over Plaintiff and similarly situated employees, including timekeeping, payroll and
25. Butcher Block has applied the same employment policies, practices, and procedures
to all Tipped Workers, including policies, practices, and procedures with respect to payment of
Angela Mar
26. Upon information and belief, Angela Mar ("Mar") is a resident of the State of
New York.
27. At all relevant times, Mar has been an owner of the Beatrice Inn.
"Principal"
28. Mar is a listed on the active New York State Liquor License for
LLC" Inn,"
"Butcher's Block Hospitality, the premises doing business as "Beatrice with its address
10014."
listed as "285 W 12th Street, New York, NY
29. At all relevant times, Mar has had power over personnel decisions at the Beatrice Inn,
including the power to hire and fire employees, set their wages, and otherwise control the terms and
30. At all relevant times, Mar has had power over payroll decisions at the Beatrice Inn,
31. At all relevant times, Mar has been actively involved in managing the day to day
32. At all relevant times, Mar has had the power to stop any illegal pay practices that
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33. At all relevant times, Mar has had the power to transfer the assets and/or liabilities
34. At all relevant times, Mar has had the power to declare bankruptcy on behalf of
35. At all relevant times, Mar has had the power to enter into contracts on behalf of
36. At all relevant times, Mar has had the power to close, shut down, and/or sell the
Beatrice Inn.
37. Mar is a covered employer within the meaning of the NYLL and at all relevant times,
has employed and/or jointly employed Plaintiff and similarly situated employees.
38. Plaintiff brings the First, Second, and Third Causes of Action pursuant to Article
39. The members of the Class are so numerous that joinder of all members is
impracticable. Upon information and belief, the size of the Class is at least 50 individuals.
Although the precise number of such employees is unknown, the facts on which the calculation
of that number depends are presently within the sole control of Defendants.
40. Common questions of law and fact exist as to the Class that predominate over any
questions only affecting them individually and include, but are not limited to, the following:
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(a) whether Defendants violated NYLL Articles 6 and 19, and the
(b) whether Defendants failed to pay Plaintiff and the Class minimum
wages for all of the hours they worked;
(c) whether Defendants correctly compensated Plaintiff and the Class for
hours worked in excess of 40 per workweek; and
(d) whether Defendants misappropriated tips from Plaintiff and the Class
41. The claims of Plaintiff are typical of the claims of the Class he seeks to represent.
Plaintiff and all of the Class members work, or have worked, for Defendants as Tipped Workers at
Beatrice Inn. Plaintiff and the Class members enjoy the same statutory rights under the NYLL,
including to be properly compensated for all hours worked. Plaintiff and the Class members have all
Defendants'
sustained similar types of damages as a result of failure to comply with the NYLL.
Plaintiff and the Class members have all been injured in that they have been uncompensated or
Defendants'
under-compensated due to common policies, practices, and patterns of conduct.
42. Plaintiff will fairly and adequately represent and protect the interests of the Class
to the class to represent its interests fairly and adequately. Plaintiff recognizes that as a class
representative, he must represent and consider the interests of the class just as he would represent
and consider his own interests. Plaintiff understands that in decisions regarding the conduct of the
litigation and its possible settlement, he must not favor his own interests over the class. Plaintiff
recognizes that any resolution of a class action must be in the best interest of the class. Plaintiff
in litigation, cooperate with class counsel, and testify at deposition and/or trial. Plaintiff has
retained counsel competent and experienced in complex class actions and employment litigation.
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43. A class action is superior to other available methods for the fair and efficient
individual class members lack the financial resources to vigorously prosecute a lawsuit against
corporate defendants. Class action treatment will permit a large number of similarly situated
persons to prosecute their common claims in a single forum simultaneously, efficiently, and
without the unnecessary duplication of efforts and expense that numerous individual actions
engender.
44. Consistent with their policies and patterns or practices as described herein,
Dmitry Gurvits
45. During his employment, Gurvits was generally scheduled to work 5 shifts per
week, averaging approximately 40 to 60 hours per week, unless he missed time for vacation, sick
46. During his employment, Defendants applied a tip credit towards the minimum
47. Defendants failed to notify Gurvits in writing of the tip credit provisions of the
Gurvits'
48. Defendants unlawfully redistributed part of tips to employees who are in
positions that are not entitled to tips under the NYLL, including, but not limited to, Bar Directors
49. With respect to Bar Directors, at the Beatrice Inn Bar Directors exert meaningful
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authority over tipped employees which would prohibit their ability to receive tips. See,
Barenboim v. Starbucks Corp., 21 N.Y.3d 460, 473, (2013) ("...an employee granted meaningful
authority or control over subordinates can no longer be considered similar to waiters and busboys
within the meaning of section 196-d— and, consequently, is not eligible to participate in a tip
pool.").
50. Specifically, Bar Directors (1) discipline tipped employees; (2) direct tipped
employees; (3) make recommendations related to hiring and firing of tipped employees; (4)
employees'
assist in running pre-shift meetings; and (5) have the ability to cut a tipped hours.
51. Defendants required Gurvits to perform non-tipped side work for more than 2
52. As a result of the above, Defendants did not satisfy the requirements under the
NYLL by which they could apply a tip credit to the hourly rates paid to Gurvits, and Defendants
53. Plaintiff realleges and incorporates by reference all allegations in all preceding
paragraphs.
54. At all times relevant, Plaintiff and the Class have been employees of Defendants,
and Defendants have been the employer of Plaintiff and the Class within the meaning of the
NYLL §§ 650 et seq., and the supporting New York State Department of Labor Regulations.
55. Defendants have failed to pay Plaintiff and the Class the minimum hourly wages
to which they are entitled under the NYLL and the supporting New York State Department of
Labor Regulations.
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56. Pursuant to the NYLL, Article 19, §§ 650 et seq., and the supporting New York
State Department of Labor Regulations, Defendants have been required to pay Plaintiff and the
Class the full minimum wage at a rate of: (a) $7.25 per hour for all hours worked from August
22, 2010 through December 30, 2013; (b) $8.00 per hour for all hours worked from December
31, 2013 through December 30, 2014; (c) $8.75 per hour for all hours worked from December
31, 2014 through December 30, 2015; (d) $9.00 per hour for all hours worked from December
31, 2015 through December 30, 2016, and (e) $11.00 per hour for all hours worked from
57. Defendants have failed to notify Plaintiff and the Class of the tip credit in writing
as required by the NYLL and the supporting New York State Department of Labor Regulations.
58. Defendants required Plaintiff and the Class to perform more than 2 hours and/or
Defendants'
59. Due to violations of the NYLL, Plaintiff and the Class are entitled to
recover from Defendants their unpaid minimum wages, liquidated damages, reasonable
attorneys'
fees, costs, and pre-judgment and post-judgment interest.
60. Plaintiff realleges and incorporates by reference all allegations in all preceding
paragraphs.
61. The overtime wage provisions of Article 19 of the NYLL and its supporting
62. Defendants have failed to pay Plaintiff and the Class overtime wages to which
they have been entitled under the NYLL and the supporting New York State Department of
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Labor Regulations - at a rate of 1.5 times the full minimum wage rate - for all
hourly hours
63. Through their failure to pay Plaintiff and the Class overtime wages for hours
worked in excess of 40 hours per week, Defendants have violated the NYLL, Article 19, §§ 650
et seq., and the supporting New York State Department of Labor Regulations.
Defendants'
64. Due to violations of the NYLL, Plaintiff and the Class are entitled to
attorneys'
recover from Defendants their unpaid overtime wages, liquidated damages, reasonable
65. Plaintiff realleges and incorporates by reference all allegations in all preceding
paragraphs.
the gratuities and/or service charges received by Plaintiff and the Class in violation of NYLL,
Article 6, § 196-d, and the supporting New York State Department of Labor Regulations.
67. Defendants unlawfully required Plaintiff and the Class to share the gratuities they
received with employees other than tipped employees, in violation of NYLL, Article 6, § 196-d
Defendants'
68. Due to violations of the NYLL, Plaintiff and the Class are entitled to
recover from Defendants their the value of the misappropriated gratuities as provided for by the
attorneys' post-
NYLL, liquidated damages, reasonable fees, costs, and pre-judgement and
judgement interest.
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persons, respectfully requests that this Court grant the following relief:
A. An order certifying the case as a class action pursuant to CPLR §§ 901 and 902
for the class of employees described herein, certifying Plaintiff as the class representative, and
liquidated damages permitted by law pursuant to the NYLL, Article 6, §§ 190 et seq., and Article
19, §§ 650 et seq., and the supporting New York State Department of Labor Regulations;
attorneys'
D. Reasonable fees and costs of the action; and
January 9, 2018
Respectfully submitted,
Brian S. Schaffer
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ATTORNEY'S VERIFICATION
I am a member of Fitapelli & Schaffer, LLP, the attorneys for Plaintiff Dmitry Gurvits. I
have read the annexed CLASS ACTION COMPLAINT, know the contents thereof and the same
are true to my knowledge, except those matters therein which are stated to be alleged on information
and belief, and as to those matters I believe them to be true. My belief, as to those matters therein
Interviews and/or discussions with Plaintiff. Plaintiffs and papers and/or documents in
the file.
The reason I make this Verification instead of Plaintiff is because a Plaintiff resides outside
of the County from where Fitapelli & Schaffer, LLP, maintains its office of the practice of law.
January 9, 2018
~~ J~
BRIAN S. SCHAFFER
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