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FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------X Index No: 160582/2016
EDNA SKINNER,
Plaintiff,
-against-
UNIFIED MARKETING LLC, PIRS CAPITAL,
LLC and JIM LAMBRIGHT, in his individual
capacity,
Defendants.
-------------------------------------------------------------- X
AFFIRMATION OF SIMI BHUTANI IN SUPPORT OF PLAINTIFF’S MOTION FOR
LEAVE TO AMEND COMPLAINT AND AMEND CAPTION AND MODIFY PRIOR
ORDERS
Simi Bhutani, an attorney at law duly admitted to practice before the Courts of the State of
New York, affirms under penalty of perjury as follows:
1. I am counsel for Plaintiff Edna Skinner (“Plaintiff”). As such, I am familiar with the facts
and circumstances contained herein.
2. This Affirmation with accompanying exhibits is respectfully submitted in support of
Plaintiff’s Motion for Leave to File an Amended Complaint. Specifically, Plaintiff moves
pursuant to CPLR §§ 1002, 1003 and 3025(b) for leave to amend her Complaint filed on
December 16, 2016 to (a) add claims of wage and hour violations committed by Defendants,
Unified Marketing LLC (“Unified Marketing”) and PIRS Capital LLC (“PIRS”)
(collectively, “Corporate Defendants”), such as failing to pay Plaintiff overtime and spread-
of-hours pay and failing to provide wage statements and wage notices as required under the
New York Labor Law (“NYLL”); and to (b) add the owners of Unified Marketing and PIRS,
Daniel Ledven, Jacob Shimon, Alexander Parsons, Russell (last name currently unknown)
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and Igor (last name currently unknown), as individually named defendants in this action.
Plaintiff also moves pursuant to CPLR §§ 5019(a) and 305(c) to (c) amend the caption, nun
pro tunc, and modify prior orders, including Default Judgment Orders dated August 29,
2017 and September 7, 2017, by replacing Defendant “Jim Lambright” with “James
Lambright a/k/a Jim Lambright.”
3. In support of the foregoing, I hereby attach the following documents:
a. A true and correct copy of the Summons and Complaint dated December 16, 2016 as
Exhibit A.
b. A true and correct copy of the Default Judgment Order dated August 29, 2017 and
filed with the County Clerk on September 1, 2017 as Exhibit B.
c. A true and correct copy of the Amended Default Judgment Order dated September
7, 2017 and filed with County Clerk on September 8, 2017 as Exhibit C.
d. A true and correct copy of the Affidavit of Service in connection with the Summons
and Complaint served upon Defendant Lambright as Exhibit D.
e. A true a correct copy of the Affidavit of Service in connection with Plaintiff’s Motion
for Default Judgment dated July 10, 2017 served upon Defendant Lambright at his
place of employment as well as his last known home address as Exhibit E.
f. A true and correct copy of the Default Judgment Order and Notice of Entry served upon
Defendant Lambright as Exhibit F.
g. A red-lined version of the First Amended Complaint containing the proposed edits of
Plaintiff’s Complaint as Exhibit G.
h. A clean version of the First Amended Complaint as Exhibit H
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Factual Background
4. Plaintiff was employed by Corporate Defendants as a Telemarketer/Senior Account
Manager from approximately July 2013 to April 1, 2016.
5. On December 16, 2016, Plaintiff commenced this action by filing a Summons and
Complaint against Defendants Unified Marketing, PIRS, and Jim Lambright. (See “Exhibit
A”). In her Complaint, Plaintiff alleges that she was discriminated against, sexually
harassed and subjected to a hostile work environment due to her sex/gender while employed
by Corporate Defendants and terminated from her employment in retaliation for her
complaints about discrimination. (Id.).
6. On December 21, 2016, all Defendants were served with process. (See Docket (“Dkt”) No.
3).
7. On July 10, 2017, Plaintifffiled a motion for Default Judgment against allDefendants due to
Defendants failure to appear in the action. (See Dkt. No. 2-7).
8. On or about July 17, 2017—seven months after the action was commenced—Corporate
Defendants contacted Plaintiff’s counsel for the first time and requested that Plaintiff’s
pending Motion for Default Judgment be adjourned and responsive pleadings be permitted
to be filed on behalf of Unified Marketing and PIRS without judicial intervention. Plaintiff
consented and a stipulation reflecting the parties’ agreement was subsequently filed with the
Court later that day. (See Dkt. No. 8).
9. On July 31, 2017, Corporate Defendants filed their Answer1 .
1 Defendant Jim Lambright currently remains in default.
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10. On August 29, 2017, Plaintiff’s Motion for Default Judgment was granted against all
Defendants. The Order was filed with the County Clerk on September 1, 2017. (See
“Exhibit B”).
11. However, on September 7, 2017, the Court vacated its prior Order and granted default to
Plaintiff as against Defendant Lambright only. The Order was filed with the County Clerk
on September 8, 2017. (See “Exhibit C”).
12. On May 17, 2018, Defendants conducted a deposition of Plaintiff.
13. Depositions of Defendants have not yet been conducted.
14. During discovery and after the deposition of Plaintiff was held, Plaintiff’s counsel
discovered further culpable conduct on the part of Corporate Defendants, which is the
subject of this instant motion. In this regard, Corporate Defendants failed to pay Plaintiff
overtime for every hour worked in excess of 40 per workweek and spread-of-hours
compensation for shifts worked in excess of 10 hours. They also failed to provide Plaintiff
with wage statements and wage notices, in violation of the NYLL.
15. On June 27, 2018, a Compliance Conference was held with both parties in attendance.
During the conference, Plaintiff’s counsel discussed her intent to seek leave to amend the
pleadings to include various claims of wage and hour violations committed by Defendants.
Plaintiff’s counsel advised defense counsel that Plaintiff’s wage and hour claims were not
time-barred under the six year statute of limitations period prescribed by the NYLL. In an
effort to avoid unnecessary motion practice, Plaintiff inquired whether Defendants would
consent to the proposed amendment. Defendants, however, did not consent.
16. After the Compliance Conference was held, counsel for Plaintiff was out of the country for
an extended period of time and did not return untilAugust 23, 2018. On that date, and in
her final attempt to avoid judicial intervention, Plaintiff’s counsel again contacted defense
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counsel via email to confirm Defendants’ position regarding the proposed amendment and
reminded Defendants that Plaintiff’s wage and hour claims are not barred by the statute of
limitations. Defense counsel did not respond.
17. As such, Plaintiff was left with no option but to make this instant application.
Plaintiff Should Be Granted Leave to Amend her Pleadings to Include Wage and Hour Claims
18. Pursuant to CPLR § 3025(b), a party may amend her pleadings “at any time by leave of
court.” CPLR § 3025(b). “Leave shall be freely given upon such terms as may be just…”
Id.
19. In Kimso Apartments LLC v. Gandhi, the Court of Appeals held that applications to amend
complaints are within the sound discretion of the court and further explained that courts are
given “considerable latitude” in exercising their discretion. Kimso Apartments, LLC v.
Gandhi, 24 N.Y.3d 403, 411 (2014) (internal citations omitted). This favorable treatment
applies even if the amendment substantially alters the theory of recovery. Id. citing Dittmar
Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502-503 (1967).
20. It is well-settled that leave to amend the pleadings shall be freely given absent prejudice or
surprise. McCaskey, Davies & Assocs., Inc. v. N.Y. City Health and Hosps. Corp., 59
N.Y.2d 755, 757 (1983).
21. Prejudice is more than just mere exposure of the party to greater liability. Kimso
Apartments, 24 N.Y. 3d at 411 citing Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d
18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 (1981). Rather, itentails that the party has been
hindered in the preparation of the case or has been prevented from taking some measure in
support of itsposition. Id.
22. In the case at bar, Defendants cannot in good faith claim prejudice or surprise. First, given
the procedural posture of this case in which discovery remains incomplete, the Note of Issue
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has not yet been filed and no trial date has been set, Defendants will not be prejudiced by the
proposed amendments. The discovery period stillremains open, affording Defendants the
opportunity to submit supplemental discovery requests, such as document demands and
interrogatories as well conduct depositions. See Charles v. William Penn Life Insurance
Company, 162 A.D.3d 490, *37 (1st Dept. 2018) (granting defendant’s motion to amend its
answer on grounds that discovery could stillbe taken and there was no prejudice). As such,
Defendants will not be hindered in the preparation or defense of their case.
23. Second, Defendants cannot successfully argue that the amendments sought by Plaintiff come
as a surprise since Plaintiff’s counsel discussed this very topic with defense counsel at the
Compliance Conference held on June 27, 2018 and again followed-up with counsel
regarding this issue on August 23, 2018. Indeed, in Messersmith v. Tate, 59 Misc.3d 203,
*206 (3rd Dept. 2018), the court held that the defendant could not claim prejudice or surprise
as a result of the amendment sought by plaintiff (to add an additional cause of action to his
complaint), in part, because plaintiff sent correspondence to defendant requesting that he
stipulate to the amendments but defendant declined. Similarly, in the case at bar,
Defendants were aware that Plaintiff was seeking to amend her Complaint to include
additional causes of action for wage and hour violations, but Defendants refused to consent
to the proposed amendments.
24. It is also important to note that mere delay in and of itself does not bar a pleading
amendment. See Kocurek v. Booz Allen Hamilton, Inc., 85 A.D.3d 502, 504 (1st Dept. 2011)
citing Sheppard v. Blitman/Atlas Bldg. Corp., 288 A.D.2d 33, 34, 734 N.Y.S.2d 1 (2001).
(“Mere delay is insufficient to defeat a motion for leave to amend.”). The Appellate Division
in the First Department has also held that a two year delay in making a motion to amend the
pleadings is short compared to other cases where leave to amend has been denied. See e.g.,
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Cherebin v. Empress Ambulance Service, Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st
Dept. 2007) (unanimously reversing lower court’s denial of plaintiff’s motion to amend her
pleadings on grounds that a two year delay in filing such motion was “short”); See also, Tri-
Tec Design v. Zatek Corporation, 123 A.D.3d 420 (1st Dept. 2014) (affirming lower court’s
decision in granting defendant’s motion to amend its answer over plaintiff’s objection that
two year delay in making such motion was prejudicial).
25. The Court of Appeals has also held that where no prejudice is shown, courts are free to
permit an amendment during trial(Kimso Apartments LLC, 24 N.Y.3d at 411) and even
after trial (Dittmar Explosives, 20 N.Y.2d at 502) (emphasis added).
26. As such, any argument that Plaintiff’s comparatively short delay should serve as a basis to
deny her instant application should be rejected.
27. Further, although a proposed pleading that fails to state a cause of action or is plainly
lacking in merit is not permitted, that is not the case here. See Brown v. Twenty-First
Century Fox, Inc., 59 Misc.3d 1201(A), *2 (Bronx Co. 2017) citing Eighth Ave. Garage
Corp v. H.K.L. Realty Corp, et al., 60 A.D.3d 404, 875 N.Y.S.2d 8 (1st Dept. 2009).
28. In this regard, and as detailed in the First Amended Complaint, Plaintiff was employed by
the Corporate Defendants as a Telemarketer/Senior Account Manager, which was a non-
exempt position. She regularly worked over 40 hours per workweek and over 10 hours per
day, without being paid premium overtime compensation or spread-of-hours pay. (See
“Exhibit G”). Further, Corporate Defendants failed to furnish Plaintiff with a wage notice
at the time of hiring and on or before February 1 st of each year and also failed to furnish to
Plaintiff wage statements listingthe dates of work covered by each payment, hours worked,
rate of pay, overtime rate of pay, overtime hours worked, deductions (i.e., tax deductions)
and other information required by the NYLL. (See “Exhibit G”). As such, the underlying
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merits of Plaintiff’s proposed amendments to include additional causes of actions for wage
and hour violations are indeed meritorious. See M.A. Angeliades, Inc. v. Hill Intern, Inc.,
150 A.D.3d 607, 608, 52 N.Y.S.3d 634 (1st Dept. 2017) (holding that motion court properly
exercised its discretion in allowing plaintiff to amend complaint to add a cause of action
based on new theory of liability on grounds that proposed amendment was not specious).
29. Accordingly, Plaintiff’s instant motion to amend her Complaint to add additional causes of
actions should be granted. See Brown, 59 Misc.3d 1201(A) at *3 (granting plaintiff’s
motion to amend her complaint to add additional causes of action).
Plaintiff Should Be Granted Leave to Amend her Pleadings to Include the Owners of
Unified Marketing and PIRS as Named Defendants
30. Plaintiff seeks to add the individual owners of Unified Marketing and PIRS, namely, Daniel
Ledven (“Mr. Ledven”), Jacob Shimon (“Mr. Shimon”), Alexander Parsol (“Mr. Parsol”),
Russell (last name currently unknown) and Igor (last name currently unknown), as named
defendants in this action.
31. As discussed above, CPLR § 3025 permits amendments to be freely granted so long as there
is no surprise or prejudice to the opposing party.
32. Additionally, CPLR § 1002(b) provides, “Persons against whom there is asserted any right
to relief jointly, severally, or in the alternative, arising out of the same transaction,
occurrence or series of transactions or occurrences, may be joined in one action as
defendants ifany common questions of law or fact would arise.” Further, CPLR § 1003
states that parties may be added at any stage of the action by leave of court or by stipulation.
33. In the instant case, Mr. Ledven, Mr. Shimon, Mr. Parsol, Russell (last name currently
unknown) and Igor (last name currently unknown) had and continue to have an ownership
interest in Unified Marketing and PIRS.
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34. The NYLL imposes individual liability on employers of a business entity for non-payment
of overtime, minimum wage and spread-of-hours pay and other violations. See Bonito, et al.
v. Avalon Partners, Inc., et al., 106 A.D.3d 625, 967 N.Y.S.2d 219 (1st Dept. 2013).
35. Mr. Ledven, Mr. Shimon, Mr. Parsol, Russell (last name currently unknown) and Igor (last
name currently unknown) certainly qualify as “employers” under the NYLL.
36. In this regard, they exercised control of the day-to-day operations of Unified Marketing and
PIRS, had the authority to hire and fire employees, supervise and control employees’ work
schedules, determine the rate and method of pay, signed and issued paychecks, and
controlled the conditions and terms of employment. See Bonito, 106 A.D.3d at 626 (holding
employee adequately alleged that corporate officer was her “employer” under the NYLL and
supporting regulations due to his control of the day-to-day operations of the business, hiring,
firing and supervisory authority over employees, and control over their work schedules,
method and rate of pay, vacation schedules and maintenance of employment records).
37. Accordingly, Plaintiff’s motion to amend her Complaint to include these owners as named
defendants in this action should be granted. See Brown, 59 Misc.3d 1201(A) at *3 (partially
granting plaintiff’s motion to amend her complaint to include additional employees as
named party plaintiffs).
Plaintiff Should be Granted Leave to Amend her Pleadings to Reflect Defendant Lambright’s
True and Complete Name in Case Caption and Prior Orders
38. CPLR § 305(c) states, “At any time, in itsdiscretion and upon such terms as it deems just,
the court may allow any summons or proof of service of a summons to be amended, if a
substantial right of a party against whom the summons is issued isnot prejudiced.”
39. CPLR § 2001 permits a court at any stage of an action to disregard a party’s mistake,
omission, defect or irregularity if a substantial right of a party is not prejudiced. CPLR §
2001.
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40. CPLR § 5019(a) provides a Court with the discretion to correct a technical defect or a
ministerial error, but may not be employed as a vehicle to alter the substantive rights of a
party. See Aetna Casualty and Surety Company v. McCarthy, et. al., 246 A.D. 406 (1st Dept.
1998) (amending judgment so as to clarify the party liable on grounds that no substantial
rights of the parties were affected by such an amendment); Daimlerchrysler Insurance
Company a/s/o DCFS Trust v. Leslie W. Jenneman, 2014 WL 12644631 (Suffolk Co. 2014)
(granting plaintiff’s motion to amend the caption and correct judgment to correct spelling error
in defendant’s last name pursuant to CPLR §§ 2001 and 5019(a)).
41. In the case at bar, Plaintiff commenced a lawsuit against Corporate Defendants as well as
Defendant Jim Lambright, the alleged harasser. Jim Lambright’s full name, however, is James
Lambright. As is common, he is often referred to as “Jim,” the colloquial moniker and
nickname for “James,” and uses both names interchangeably.
42. As such, Plaintiff moves to correct the misnomer in the case caption and moves to modify prior
orders, including Default Judgment Order dated August 29, 2017 as amended by Default
Judgment Order dated September 7, 2017, to reflect Defendant Lambright’s true and complete
name. Specifically, Plaintiff moves to amend the caption, nun pro tunc, and modify prior
orders by replacing “Jim Lambright” with “James Lambright a/k/a Jim Lambright.”
43. The First Department has routinely granted such motions in the absence of prejudice. For
example, in Houghtalen v. Norstar Bank, 191 A.D.2d 371, 595 N.Y.S.2d 408 (1st Dept. 1993),
the court reversed lower court’s decision and granted Plaintiff’s application to amend the
caption from “Monti Francesco” to “Franceso Monti” so as to reflect the true name of
Defendant having found that he was properly served and suffered no prejudice as a result of the
misnomer pursuant to CPLR § 305(c). Similarly, in Glover v. Jack D. Weiler Hosp. of Albert
Einstein College, 256 A.D.2d 137 (1st Dept. 1998), the court held that plaintiff’sleave to
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correct the summons, which had incorrectly named the corporate defendant, was properly
granted since the correct entity was adequately served and apprised of the litigation. The court
in Ralph Ferrara, Inc. v. Bermuda Limosine Co., 184 A.D.2d 301 (1st Dept. 1992) likewise
held that the court did not abuse its discretion in granting plaintiff’s motion to amend the
caption nunc pro tunc by substituting the real parties in interest for a party which existed only
as a trade name.
44. In the present case, Plaintiff submits that the correction of Defendant Lambright’s name is
merely a technical defect and does not alter the substantive rights of said party. It is clear from
the Complaint whom Plaintiff intended to sue and that Defendant Lambright’s full name was
intended to be used. In Arooba Corp., et al v. American Medical Centers, et al., 28 Misc.3d
1216(A) (Kings Co. 2010), the court held, “[Defendant’s] corporate counterpart was intended
to be named as a defendant in the action. If [the served process] names them in such terms that
every intelligent person understands who is meant, as is the case here, it has fulfilled its
purpose; and the courts should not put themselves in the position of failing to recognize what is
apparent to everyone else.” Here, itis similarly clear that James Lambright was intended to be
named as a defendant in the action.
45. Further, Plaintiff properly served Defendant Lambright with (a) the Summons and Complaint
(See “Exhibit D”), (b) the Motion for Default Judgment dated July 10, 2017 (at both his place
of employment and last known home address) (See “Exhibit E”), and (c) the Default Judgment
Order with Notice of Entry (See “Exhibit F”). Therefore, Defendant Lambright, who remains
in default, is undoubtedly aware of this lawsuit and will suffer no prejudice by the amendment
proposed.
46. No substantial right of the Defendant Lambright would be affected or prejudiced by amending
the caption and modifying prior orders to change the name of the defaulting Defendant from
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“Jim Lambright” to “James Lambright a/k/a Jim Lambright.” In contrast, Plaintiff’s rights to
enforce a judgment may be impaired without granting Plaintiff leave to amend.
47. It should also be noted that a motion to cure “a misnomer in the description of a party
defendant” should be granted even after the statute of limitations has run where “(1) there is
evidence that the correct defendant (misnamed in the original process) has in fact been properly
served, and (2) the correct defendant would not be prejudiced by granting the amendment
sought.” Ober v. Rye Town Hilton, 159 A.D.2d 16, 19-20 (2nd Dept. 2016) (emphasis added);
See also Edenwald Contracting Co. v. New York, 60 N.Y.2d 957, 959, 459 N.E.2d 164, 165,
471 N.Y.S.2d 55, 56 (1983), quoting, Siegel, Practice Commentaries, McKinney's Cons
Laws of NY, Book 7B, CPLR 3025:5, p. 477 (allowing defendant to amend Answer to
include the affirmative defense of waiver, six and a half years after the case had
commenced).
Conclusion
48. In the event this Court denies Plaintiff’smotion to add additional wage and hour claims and
name the owners as defendants in this action, Plaintiff is stillwithin the statute of limitations
period to commence another action against the same Corporate Defendants and itsowners,
pursuant to the NYLL. However, for purposes of judicial economy, granting Plaintiff the
amendments sought herein will help the court to avoid hearing the same facts on multiple
occasions and having the same parties return to court separately for each of their legal disputes.
49. In light of the foregoing and in the interest of justice and judicial economy, Plaintiff’s instant
motion should be granted in its entirety.
50. No prior request for similar relief has been made.
Dated: September 12, 2018
New York, New York
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AKIN LAW GROUP PLLC
/s/ Simi Bhutani___________
Simi Bhutani, Esq.
45 Broadway, Suite 1420
New York, New York 10006
Tel.: (212) 825-1400
Fax.: (212) 825-1440
Attorneys for Plaintiff
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Preview
FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------X Index No: 160582/2016 EDNA SKINNER, Plaintiff, -against- UNIFIED MARKETING LLC, PIRS CAPITAL, LLC and JIM LAMBRIGHT, in his individual capacity, Defendants. -------------------------------------------------------------- X AFFIRMATION OF SIMI BHUTANI IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT AND AMEND CAPTION AND MODIFY PRIOR ORDERS Simi Bhutani, an attorney at law duly admitted to practice before the Courts of the State of New York, affirms under penalty of perjury as follows: 1. I am counsel for Plaintiff Edna Skinner (“Plaintiff”). As such, I am familiar with the facts and circumstances contained herein. 2. This Affirmation with accompanying exhibits is respectfully submitted in support of Plaintiff’s Motion for Leave to File an Amended Complaint. Specifically, Plaintiff moves pursuant to CPLR §§ 1002, 1003 and 3025(b) for leave to amend her Complaint filed on December 16, 2016 to (a) add claims of wage and hour violations committed by Defendants, Unified Marketing LLC (“Unified Marketing”) and PIRS Capital LLC (“PIRS”) (collectively, “Corporate Defendants”), such as failing to pay Plaintiff overtime and spread- of-hours pay and failing to provide wage statements and wage notices as required under the New York Labor Law (“NYLL”); and to (b) add the owners of Unified Marketing and PIRS, Daniel Ledven, Jacob Shimon, Alexander Parsons, Russell (last name currently unknown) 1 1 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 and Igor (last name currently unknown), as individually named defendants in this action. Plaintiff also moves pursuant to CPLR §§ 5019(a) and 305(c) to (c) amend the caption, nun pro tunc, and modify prior orders, including Default Judgment Orders dated August 29, 2017 and September 7, 2017, by replacing Defendant “Jim Lambright” with “James Lambright a/k/a Jim Lambright.” 3. In support of the foregoing, I hereby attach the following documents: a. A true and correct copy of the Summons and Complaint dated December 16, 2016 as Exhibit A. b. A true and correct copy of the Default Judgment Order dated August 29, 2017 and filed with the County Clerk on September 1, 2017 as Exhibit B. c. A true and correct copy of the Amended Default Judgment Order dated September 7, 2017 and filed with County Clerk on September 8, 2017 as Exhibit C. d. A true and correct copy of the Affidavit of Service in connection with the Summons and Complaint served upon Defendant Lambright as Exhibit D. e. A true a correct copy of the Affidavit of Service in connection with Plaintiff’s Motion for Default Judgment dated July 10, 2017 served upon Defendant Lambright at his place of employment as well as his last known home address as Exhibit E. f. A true and correct copy of the Default Judgment Order and Notice of Entry served upon Defendant Lambright as Exhibit F. g. A red-lined version of the First Amended Complaint containing the proposed edits of Plaintiff’s Complaint as Exhibit G. h. A clean version of the First Amended Complaint as Exhibit H 2 2 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 Factual Background 4. Plaintiff was employed by Corporate Defendants as a Telemarketer/Senior Account Manager from approximately July 2013 to April 1, 2016. 5. On December 16, 2016, Plaintiff commenced this action by filing a Summons and Complaint against Defendants Unified Marketing, PIRS, and Jim Lambright. (See “Exhibit A”). In her Complaint, Plaintiff alleges that she was discriminated against, sexually harassed and subjected to a hostile work environment due to her sex/gender while employed by Corporate Defendants and terminated from her employment in retaliation for her complaints about discrimination. (Id.). 6. On December 21, 2016, all Defendants were served with process. (See Docket (“Dkt”) No. 3). 7. On July 10, 2017, Plaintifffiled a motion for Default Judgment against allDefendants due to Defendants failure to appear in the action. (See Dkt. No. 2-7). 8. On or about July 17, 2017—seven months after the action was commenced—Corporate Defendants contacted Plaintiff’s counsel for the first time and requested that Plaintiff’s pending Motion for Default Judgment be adjourned and responsive pleadings be permitted to be filed on behalf of Unified Marketing and PIRS without judicial intervention. Plaintiff consented and a stipulation reflecting the parties’ agreement was subsequently filed with the Court later that day. (See Dkt. No. 8). 9. On July 31, 2017, Corporate Defendants filed their Answer1 . 1 Defendant Jim Lambright currently remains in default. 3 3 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 10. On August 29, 2017, Plaintiff’s Motion for Default Judgment was granted against all Defendants. The Order was filed with the County Clerk on September 1, 2017. (See “Exhibit B”). 11. However, on September 7, 2017, the Court vacated its prior Order and granted default to Plaintiff as against Defendant Lambright only. The Order was filed with the County Clerk on September 8, 2017. (See “Exhibit C”). 12. On May 17, 2018, Defendants conducted a deposition of Plaintiff. 13. Depositions of Defendants have not yet been conducted. 14. During discovery and after the deposition of Plaintiff was held, Plaintiff’s counsel discovered further culpable conduct on the part of Corporate Defendants, which is the subject of this instant motion. In this regard, Corporate Defendants failed to pay Plaintiff overtime for every hour worked in excess of 40 per workweek and spread-of-hours compensation for shifts worked in excess of 10 hours. They also failed to provide Plaintiff with wage statements and wage notices, in violation of the NYLL. 15. On June 27, 2018, a Compliance Conference was held with both parties in attendance. During the conference, Plaintiff’s counsel discussed her intent to seek leave to amend the pleadings to include various claims of wage and hour violations committed by Defendants. Plaintiff’s counsel advised defense counsel that Plaintiff’s wage and hour claims were not time-barred under the six year statute of limitations period prescribed by the NYLL. In an effort to avoid unnecessary motion practice, Plaintiff inquired whether Defendants would consent to the proposed amendment. Defendants, however, did not consent. 16. After the Compliance Conference was held, counsel for Plaintiff was out of the country for an extended period of time and did not return untilAugust 23, 2018. On that date, and in her final attempt to avoid judicial intervention, Plaintiff’s counsel again contacted defense 4 4 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 counsel via email to confirm Defendants’ position regarding the proposed amendment and reminded Defendants that Plaintiff’s wage and hour claims are not barred by the statute of limitations. Defense counsel did not respond. 17. As such, Plaintiff was left with no option but to make this instant application. Plaintiff Should Be Granted Leave to Amend her Pleadings to Include Wage and Hour Claims 18. Pursuant to CPLR § 3025(b), a party may amend her pleadings “at any time by leave of court.” CPLR § 3025(b). “Leave shall be freely given upon such terms as may be just…” Id. 19. In Kimso Apartments LLC v. Gandhi, the Court of Appeals held that applications to amend complaints are within the sound discretion of the court and further explained that courts are given “considerable latitude” in exercising their discretion. Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014) (internal citations omitted). This favorable treatment applies even if the amendment substantially alters the theory of recovery. Id. citing Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502-503 (1967). 20. It is well-settled that leave to amend the pleadings shall be freely given absent prejudice or surprise. McCaskey, Davies & Assocs., Inc. v. N.Y. City Health and Hosps. Corp., 59 N.Y.2d 755, 757 (1983). 21. Prejudice is more than just mere exposure of the party to greater liability. Kimso Apartments, 24 N.Y. 3d at 411 citing Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 (1981). Rather, itentails that the party has been hindered in the preparation of the case or has been prevented from taking some measure in support of itsposition. Id. 22. In the case at bar, Defendants cannot in good faith claim prejudice or surprise. First, given the procedural posture of this case in which discovery remains incomplete, the Note of Issue 5 5 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 has not yet been filed and no trial date has been set, Defendants will not be prejudiced by the proposed amendments. The discovery period stillremains open, affording Defendants the opportunity to submit supplemental discovery requests, such as document demands and interrogatories as well conduct depositions. See Charles v. William Penn Life Insurance Company, 162 A.D.3d 490, *37 (1st Dept. 2018) (granting defendant’s motion to amend its answer on grounds that discovery could stillbe taken and there was no prejudice). As such, Defendants will not be hindered in the preparation or defense of their case. 23. Second, Defendants cannot successfully argue that the amendments sought by Plaintiff come as a surprise since Plaintiff’s counsel discussed this very topic with defense counsel at the Compliance Conference held on June 27, 2018 and again followed-up with counsel regarding this issue on August 23, 2018. Indeed, in Messersmith v. Tate, 59 Misc.3d 203, *206 (3rd Dept. 2018), the court held that the defendant could not claim prejudice or surprise as a result of the amendment sought by plaintiff (to add an additional cause of action to his complaint), in part, because plaintiff sent correspondence to defendant requesting that he stipulate to the amendments but defendant declined. Similarly, in the case at bar, Defendants were aware that Plaintiff was seeking to amend her Complaint to include additional causes of action for wage and hour violations, but Defendants refused to consent to the proposed amendments. 24. It is also important to note that mere delay in and of itself does not bar a pleading amendment. See Kocurek v. Booz Allen Hamilton, Inc., 85 A.D.3d 502, 504 (1st Dept. 2011) citing Sheppard v. Blitman/Atlas Bldg. Corp., 288 A.D.2d 33, 34, 734 N.Y.S.2d 1 (2001). (“Mere delay is insufficient to defeat a motion for leave to amend.”). The Appellate Division in the First Department has also held that a two year delay in making a motion to amend the pleadings is short compared to other cases where leave to amend has been denied. See e.g., 6 6 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 Cherebin v. Empress Ambulance Service, Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dept. 2007) (unanimously reversing lower court’s denial of plaintiff’s motion to amend her pleadings on grounds that a two year delay in filing such motion was “short”); See also, Tri- Tec Design v. Zatek Corporation, 123 A.D.3d 420 (1st Dept. 2014) (affirming lower court’s decision in granting defendant’s motion to amend its answer over plaintiff’s objection that two year delay in making such motion was prejudicial). 25. The Court of Appeals has also held that where no prejudice is shown, courts are free to permit an amendment during trial(Kimso Apartments LLC, 24 N.Y.3d at 411) and even after trial (Dittmar Explosives, 20 N.Y.2d at 502) (emphasis added). 26. As such, any argument that Plaintiff’s comparatively short delay should serve as a basis to deny her instant application should be rejected. 27. Further, although a proposed pleading that fails to state a cause of action or is plainly lacking in merit is not permitted, that is not the case here. See Brown v. Twenty-First Century Fox, Inc., 59 Misc.3d 1201(A), *2 (Bronx Co. 2017) citing Eighth Ave. Garage Corp v. H.K.L. Realty Corp, et al., 60 A.D.3d 404, 875 N.Y.S.2d 8 (1st Dept. 2009). 28. In this regard, and as detailed in the First Amended Complaint, Plaintiff was employed by the Corporate Defendants as a Telemarketer/Senior Account Manager, which was a non- exempt position. She regularly worked over 40 hours per workweek and over 10 hours per day, without being paid premium overtime compensation or spread-of-hours pay. (See “Exhibit G”). Further, Corporate Defendants failed to furnish Plaintiff with a wage notice at the time of hiring and on or before February 1 st of each year and also failed to furnish to Plaintiff wage statements listingthe dates of work covered by each payment, hours worked, rate of pay, overtime rate of pay, overtime hours worked, deductions (i.e., tax deductions) and other information required by the NYLL. (See “Exhibit G”). As such, the underlying 7 7 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 merits of Plaintiff’s proposed amendments to include additional causes of actions for wage and hour violations are indeed meritorious. See M.A. Angeliades, Inc. v. Hill Intern, Inc., 150 A.D.3d 607, 608, 52 N.Y.S.3d 634 (1st Dept. 2017) (holding that motion court properly exercised its discretion in allowing plaintiff to amend complaint to add a cause of action based on new theory of liability on grounds that proposed amendment was not specious). 29. Accordingly, Plaintiff’s instant motion to amend her Complaint to add additional causes of actions should be granted. See Brown, 59 Misc.3d 1201(A) at *3 (granting plaintiff’s motion to amend her complaint to add additional causes of action). Plaintiff Should Be Granted Leave to Amend her Pleadings to Include the Owners of Unified Marketing and PIRS as Named Defendants 30. Plaintiff seeks to add the individual owners of Unified Marketing and PIRS, namely, Daniel Ledven (“Mr. Ledven”), Jacob Shimon (“Mr. Shimon”), Alexander Parsol (“Mr. Parsol”), Russell (last name currently unknown) and Igor (last name currently unknown), as named defendants in this action. 31. As discussed above, CPLR § 3025 permits amendments to be freely granted so long as there is no surprise or prejudice to the opposing party. 32. Additionally, CPLR § 1002(b) provides, “Persons against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence or series of transactions or occurrences, may be joined in one action as defendants ifany common questions of law or fact would arise.” Further, CPLR § 1003 states that parties may be added at any stage of the action by leave of court or by stipulation. 33. In the instant case, Mr. Ledven, Mr. Shimon, Mr. Parsol, Russell (last name currently unknown) and Igor (last name currently unknown) had and continue to have an ownership interest in Unified Marketing and PIRS. 8 8 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 34. The NYLL imposes individual liability on employers of a business entity for non-payment of overtime, minimum wage and spread-of-hours pay and other violations. See Bonito, et al. v. Avalon Partners, Inc., et al., 106 A.D.3d 625, 967 N.Y.S.2d 219 (1st Dept. 2013). 35. Mr. Ledven, Mr. Shimon, Mr. Parsol, Russell (last name currently unknown) and Igor (last name currently unknown) certainly qualify as “employers” under the NYLL. 36. In this regard, they exercised control of the day-to-day operations of Unified Marketing and PIRS, had the authority to hire and fire employees, supervise and control employees’ work schedules, determine the rate and method of pay, signed and issued paychecks, and controlled the conditions and terms of employment. See Bonito, 106 A.D.3d at 626 (holding employee adequately alleged that corporate officer was her “employer” under the NYLL and supporting regulations due to his control of the day-to-day operations of the business, hiring, firing and supervisory authority over employees, and control over their work schedules, method and rate of pay, vacation schedules and maintenance of employment records). 37. Accordingly, Plaintiff’s motion to amend her Complaint to include these owners as named defendants in this action should be granted. See Brown, 59 Misc.3d 1201(A) at *3 (partially granting plaintiff’s motion to amend her complaint to include additional employees as named party plaintiffs). Plaintiff Should be Granted Leave to Amend her Pleadings to Reflect Defendant Lambright’s True and Complete Name in Case Caption and Prior Orders 38. CPLR § 305(c) states, “At any time, in itsdiscretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons is issued isnot prejudiced.” 39. CPLR § 2001 permits a court at any stage of an action to disregard a party’s mistake, omission, defect or irregularity if a substantial right of a party is not prejudiced. CPLR § 2001. 9 9 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 40. CPLR § 5019(a) provides a Court with the discretion to correct a technical defect or a ministerial error, but may not be employed as a vehicle to alter the substantive rights of a party. See Aetna Casualty and Surety Company v. McCarthy, et. al., 246 A.D. 406 (1st Dept. 1998) (amending judgment so as to clarify the party liable on grounds that no substantial rights of the parties were affected by such an amendment); Daimlerchrysler Insurance Company a/s/o DCFS Trust v. Leslie W. Jenneman, 2014 WL 12644631 (Suffolk Co. 2014) (granting plaintiff’s motion to amend the caption and correct judgment to correct spelling error in defendant’s last name pursuant to CPLR §§ 2001 and 5019(a)). 41. In the case at bar, Plaintiff commenced a lawsuit against Corporate Defendants as well as Defendant Jim Lambright, the alleged harasser. Jim Lambright’s full name, however, is James Lambright. As is common, he is often referred to as “Jim,” the colloquial moniker and nickname for “James,” and uses both names interchangeably. 42. As such, Plaintiff moves to correct the misnomer in the case caption and moves to modify prior orders, including Default Judgment Order dated August 29, 2017 as amended by Default Judgment Order dated September 7, 2017, to reflect Defendant Lambright’s true and complete name. Specifically, Plaintiff moves to amend the caption, nun pro tunc, and modify prior orders by replacing “Jim Lambright” with “James Lambright a/k/a Jim Lambright.” 43. The First Department has routinely granted such motions in the absence of prejudice. For example, in Houghtalen v. Norstar Bank, 191 A.D.2d 371, 595 N.Y.S.2d 408 (1st Dept. 1993), the court reversed lower court’s decision and granted Plaintiff’s application to amend the caption from “Monti Francesco” to “Franceso Monti” so as to reflect the true name of Defendant having found that he was properly served and suffered no prejudice as a result of the misnomer pursuant to CPLR § 305(c). Similarly, in Glover v. Jack D. Weiler Hosp. of Albert Einstein College, 256 A.D.2d 137 (1st Dept. 1998), the court held that plaintiff’sleave to 10 10 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 correct the summons, which had incorrectly named the corporate defendant, was properly granted since the correct entity was adequately served and apprised of the litigation. The court in Ralph Ferrara, Inc. v. Bermuda Limosine Co., 184 A.D.2d 301 (1st Dept. 1992) likewise held that the court did not abuse its discretion in granting plaintiff’s motion to amend the caption nunc pro tunc by substituting the real parties in interest for a party which existed only as a trade name. 44. In the present case, Plaintiff submits that the correction of Defendant Lambright’s name is merely a technical defect and does not alter the substantive rights of said party. It is clear from the Complaint whom Plaintiff intended to sue and that Defendant Lambright’s full name was intended to be used. In Arooba Corp., et al v. American Medical Centers, et al., 28 Misc.3d 1216(A) (Kings Co. 2010), the court held, “[Defendant’s] corporate counterpart was intended to be named as a defendant in the action. If [the served process] names them in such terms that every intelligent person understands who is meant, as is the case here, it has fulfilled its purpose; and the courts should not put themselves in the position of failing to recognize what is apparent to everyone else.” Here, itis similarly clear that James Lambright was intended to be named as a defendant in the action. 45. Further, Plaintiff properly served Defendant Lambright with (a) the Summons and Complaint (See “Exhibit D”), (b) the Motion for Default Judgment dated July 10, 2017 (at both his place of employment and last known home address) (See “Exhibit E”), and (c) the Default Judgment Order with Notice of Entry (See “Exhibit F”). Therefore, Defendant Lambright, who remains in default, is undoubtedly aware of this lawsuit and will suffer no prejudice by the amendment proposed. 46. No substantial right of the Defendant Lambright would be affected or prejudiced by amending the caption and modifying prior orders to change the name of the defaulting Defendant from 11 11 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 “Jim Lambright” to “James Lambright a/k/a Jim Lambright.” In contrast, Plaintiff’s rights to enforce a judgment may be impaired without granting Plaintiff leave to amend. 47. It should also be noted that a motion to cure “a misnomer in the description of a party defendant” should be granted even after the statute of limitations has run where “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought.” Ober v. Rye Town Hilton, 159 A.D.2d 16, 19-20 (2nd Dept. 2016) (emphasis added); See also Edenwald Contracting Co. v. New York, 60 N.Y.2d 957, 959, 459 N.E.2d 164, 165, 471 N.Y.S.2d 55, 56 (1983), quoting, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5, p. 477 (allowing defendant to amend Answer to include the affirmative defense of waiver, six and a half years after the case had commenced). Conclusion 48. In the event this Court denies Plaintiff’smotion to add additional wage and hour claims and name the owners as defendants in this action, Plaintiff is stillwithin the statute of limitations period to commence another action against the same Corporate Defendants and itsowners, pursuant to the NYLL. However, for purposes of judicial economy, granting Plaintiff the amendments sought herein will help the court to avoid hearing the same facts on multiple occasions and having the same parties return to court separately for each of their legal disputes. 49. In light of the foregoing and in the interest of justice and judicial economy, Plaintiff’s instant motion should be granted in its entirety. 50. No prior request for similar relief has been made. Dated: September 12, 2018 New York, New York 12 12 of 13 FILED: NEW YORK COUNTY CLERK 09/12/2018 01:11 PM INDEX NO. 160582/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/12/2018 AKIN LAW GROUP PLLC /s/ Simi Bhutani___________ Simi Bhutani, Esq. 45 Broadway, Suite 1420 New York, New York 10006 Tel.: (212) 825-1400 Fax.: (212) 825-1440 Attorneys for Plaintiff 13 13 of 13