Preview
INDEX NO. 160993/2014
(FILED: NEW YORK COUNTY CLERK 0372672015 01:36 PM
NYSCEF DOC. NO. 16 RECEIVED NYSCEF 03/26/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
we ee ee nee ee ee en ee eee eee
xxxxxxxx xxxx and STAR JADA RIVERA.
Individually and on behalf of a class of similarly Index No. 160993/2014
situated employees,
Plaintiffs,
-against-
HORNBLOWER NEW YORK, LLC;
HORNBLOWER YACHTS, INC.; HORNBLOWER :
CRUISES & EVENTS; TERRY MACRAE; and any
other related entities,
Defendants.
MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS
TABLE OF CONTENTS
TABLE OF AUTHORITIES sseeseccecseesensenseseeasensessesacenstaseasseossensesssessnsasssossousossonsenesaeeassenenes
I. STANDARDS FOR MOTION TO DISMISS PURSUANT
TO CPLR 3211 seeessuseseneeensensenseneseneaseanensensessssenssesecansessneensanonsunsnssnsennsecsensenassnensennenes
II. PLAINTIFFS WERE NEVER EMPLOYEES OF HORNBLOWER. seeesesseseseases
IJ. HORNBLOWER CRUISES DID NOT CHARGE A FEE
PURPORTED TO BE A GRATUITY,
IV. THE COURT LACKS PERSONAL JURISDICTION OVER
HORNBLOWER YACHTS, LLC senereaseeesessseeseeessenseneneeee
CONCLUSION sensaasaaneaneneeesoneenens
TABLE OF AUTHORITIES
Page(s)
Cases
Connor v. Pier Sixty, LLC
23 Misc. 3d 435 (Sup. Ct., N.Y. Cty., 2009)
Donnetta v. S.A.R.L. DeGestion Pierre Cardin,
3 Misc. 3d 1106(A) (Sup. Ct., N.Y. Cty. 2004)
HBK Master Fund L.P. v. Troika Dialog USA, Inc.
85 A.D. 3d 665 (1st Dept. 2011)
In the Matter of Hornblower Yachts, LLC v. Harvey,
121 A.D. 3d 1513 (4th Dept. 2014) 7,8
Knickerbocker Field Club v. Site Selection Board,
41 A.D 2d 539, 339 N.Y.S.2d 485(2d Dept. 1973)
Leon v. Martinez.
84.N.Y.2d 83, 614 N.Y.S.2d 972 (1994)
Rivkin v. Heraus Kulze GmbH.
289 A.D. 2d 27, 734 N.Y.S. 2d 31 (1st Dept. 2001)
Saratoga Harness Racing Ass’n. v. Moss,
26 A.D. 2d 486, 275 N.Y.S.2d 8888 GaPDet.© 1990), aff'd 20 N.Y.2d 733
(1967)...
Skillgames, LLC y. Brody, A.D.3d 247, 250, 767 N.Y.S. 2d 418, 421
Ullman v. Norma Kamali, Inc.,
207 A.D.2d 691, 616 N.Y.S.2d 583 (1st Dept. 1994) 1,6
Statutes
New York Labor Law § 106-d
Other Authorities
CPLR 901
CPLR 3211
I. STANDARDS FOR MOTION TO DISMISS PURSUANT TO CPLR 3211
A motion to dismiss is a motion addressed to the pleadings. In determining whether a
complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211, the court must
accept all facts alleged as true and determine whether they fit into any cognizable legal theory.
Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972 (1994). However, factual allegations
that consist of bare legal conclusions or that are flatly contradicted by documentary evidence are not
entitled to such con: sideration. Uilman Norma Nama,
v. Norma
Ullman Vv. Inc., 207 A.D.2d 691, 616 N.Y.S.2d 583
Kamali, ine:
(1 Dept. 1994). Moreover, pursuant to CPLR 3211 (a)(1), a party may move to dismiss “on the
ground that ... a defense is founded upon documentary evidence.” Id. at 88. Ona motion
pursuant to 3211 (a), a court may consider affidavits and other evidence outside the pleadings,
converting it to one for summary judgment. Saratoga Harness Racing Ass’n. v. Moss, 26 A.D. 2d
486, 488, 275 N.Y.S.2d 888, 890 (3d Det. 1996), aff'd 20 N.Y.2d 733 (1967). See also,
Knickerbocker Field Club y. Site Selection Board, 41 A.D 2d 539, 540, 339 N.Y.S.2d 485, 486(2d
Dept. 1973).
As discussed below, the documentary evidence presented by Defendants Hornblower New
York, LLC (hereinafter “Hornblower”) and Hornblower Yachts, LLC (hereinafter “Hornblower
Yachts”) (collectively the “Hornblower Defendants”) demonstrate collectively that (1) Plaintiffs
were never employed by any of the Hornblower Defendants; (2) Plaintiff xxxx worked only one
function at a Hornblower event at which no administrative or service charge was imposed on the
customers; (3) Plaintiff Rivera worked only two (2) functions at Hornblower events at which the
Charter Agreement clearly and unambiguously stated that the administrative charge was not a
gratuity and not distributed to service employees; and (3) Hornblower Yachts has never done
business in the State of New York.
#394452.1
Il. PLAINTIFFS WERE NEVER EMPLOYEES OF HORNBLOWER
Plaintiffs did not allege in their Amended Class Action Complaint (“Amended Complaint”)
that they were employed by any entities other than either of the Hornblower Defendants or
Hornblower Yachts, nor did they alleged in their Amended Complaint that their employment
relationship with the Hornblower Defendants, notwithstanding their employment by other entities,
was based on some or any of the factors set forth in Bynog v. Cipriani, N.Y. 3d 193 (2003), such as
whether or not plaintiffs worked at their own convenience, were free to engage in other
employment, received fringe benefits, were on Hornblower’s payroll and were on a fixed schedule.
Even though on the face of their pleading, no such allegations can be found nor are they even hinted
at, Plaintiffs raise now, for the first time, that they require discovery to establish the fact that may
establish that they had an employment relationship of some sort with the Hornblower Defendants.
Plaintiffs are dismissive of the fact they worked only one or two (2) functions at
Hornblower events in their entire lifetimes, claiming that this is a purported class action with a
statute of limitation spanning six years and thousands of events. Before bringing their Amended
Complaint, Plaintiffs did not even do enough due diligence to discover that Hornblower’s New
York operations did not commence until April 2012. Annexed to the Declaration of Judith A. Stoll,
Esq., is a copy of a page from Hornblowernewyork.com, which states: “Since 2012, Hornblower
New York has offered private event charters and public cruises from Pier 40 in the West Village
...” (emphasis added).!
While it is true that the motion in Bynog v. Cipriani, supra, was one for summary judgment
following discovery, it is also true that the plaintiffs in Bynog expressly alleged in their Complaint
”
1 References to the exhibits attached to the Declaration of Judith A. Stoll, Esq. are denoted “Stoll Decl., Ex. __’
2
that the staffing agency, M.J. Alexander and its principal, Michael Alexander, were the disclosed
agents of Cipriani. Id. at 196. Similarly, in Connor v. Pier Sixty, LLC, 23 Misc. 3d 435 (Sup. Ct.,
N.Y. Cty., 2009), the Plaintiffs alleged that they were “sent by Gotham Personnel LLC (the staffing
company) to work as servers at parties held at Pier Sixty ...” See Stoll Decl., Ex. B, paragraph 15
of the Complaint in Connor v. Pier Sixty, LLC. Indeed, Gotham Personnel, LLC was named as a
party defendant in that case. By contrast, in this case there is no mention at all of any other
employing entity and simply no allegation whatsoever that would alert Defendants that Plaintiffs
were not simply mistaken about the identity of their real employers and/or that there were any
indicia of an employment relationship with Hornblower, perhaps based on a theory of “joint”
employment.
The documentary evidence establishes without any possibility of dispute that both Plaintiff
xxxx and Plaintiff Rivera were employed by other entities — in xxxx’s case, by Preferred Wait
Staffers (“PWS”) and in Rivera’s case, by Walsh Associates. Defendants have produced xxxx’s
application for employment with PWS and his time sheet and check from PWS, categorically
establishing that he was employed by PWS. Defendants have also produced an email from xxxx in
which he states that he was employed by PWS. Defendants have further produced the time sheets
from Walsh Associates showing that Plaintiff Rivera worked for them at two (2) Hornblower events
in August and September 2013, showing Hornblower as the “client.” In response to this clear
documentation, neither Plaintiff has denied that he/she was employed by other entities nor have
? Defendants are baffled by Plaintiffs’ claim that the emails from xxxx were “cherry-picked.” There is no evidence or
even assertion that xxxx sent any other emails to Hornblower at any time from which it could “cherry-pick” the ones
attached to the moving papers. But even if there were other emails, in the emails which were produced xxxx clearly
and unambiguously acknowledges that he was employed by PWS and claims to have worked only two (2) Hornblower
events, both on October 31, 2013. As explained below, the documentary evidence shows that he actually worked only
one event that evening and left voluntarily after the first event.
3
they submitted any documentation or even an affidavit contradicting the information in the
documentation submitted by Defendants.
More significantly, Plaintiffs make no allegations in their Amended Complaint or in their
Opposition to the Motion to Dismiss that would support a claim of an employment relationship
other than the bald, conclusory statement that they were “employed” by Hornblower. Indeed, in
their Opposition, Plaintiffs do not deny that they were employed by PWS and Walsh, respectively.
Instead, in opposition to the Motion, Plaintiffs simply assert that despite the lack of any allegations
in their pleadings that would support a claim of a joint employment relationship or even any
allegation that there were employed by other entities while performing work for Hornblower, they
should be given the opportunity at this belated date to try to gather information through discovery
they would support a claim that they had not previously made. It is evident that Plaintiffs, having
realized the fatal flaw in their Amended Complaint, hope to save their case through a wide-ranging
fishing expedition after the fact. Defendants assert that their attempts to save their claim is too little
too late.
The cases cited by Plaintiffs supporting the argument that employment status is always a
matter for summary judgment or trial are inapposite. Each of these cases was a personal injury case
in which the question was whether the individual driver who caused the accident was an employee
or independent contractor of the defendant trucking or cab company so as to impose vicarious
liability on the Company. Since the trucking/cab companies were named as defendants, the issue of
the vicarious liability of these entities for the acts of the drivers must necessarily have been raised
in the complaint, thus satisfying any pleading requirements. In this case, Plaintiffs have not alleged
or even hinted at “vicarious” liability. They have merely asserted that they were “employed” by
Hornblower, which they clearly were not, and have not provided any facts which would create an
issue for a jury to decide as to whether they can be deemed “employed” by Hornblower in the face
of documentary evidence that they were actually employed by other entities.
11. HORNBLOWER CRUISES DID NOT CHARGE A
FEE PURPORTED TO BE A GRATUITY
Plaintiff xxxx’s claim clearly must be dismissed. The documentary evidence demonstrates
beyond dispute that he worked only one event on October 31, 2013 and Hornblower did not charge
any administrative fee or service charge for that event. Plaintiff xxxx has no response in his
Opposition to that documentary evidence. He does not submit any check stubs, time sheets,
paperwork of any kind or even his own affidavit supporting a claim that would contradict that
documentary evidence. In the absence of any evidence that Hornblower actually charged any
administrative fee or service charge for the event that he worked, and in the face of this indisputable
and dispositive documentary evidence, he does not raise any issue of fact as to whether it did so.
xxxx’s claim that he was deprived of gratuities pursuant to New York Labor Law §196-d simply
cannot stand.
Plaintiff Rivera’s claim also must be dismissed. The documentary evidence demonstrates
beyond dispute that for the two (2) events she worked for Hornblower, the customer was informed
in writing in the Charter Agreement that the administrative fee is not a gratuity and is not
distributed to the servers and that customers can leave voluntary gratuities for servers if the service
is to their satisfaction.
Both Plaintiffs try to evade the import of these facts by making the bald and unsupported
statement in a footnote that “plaintiffs purport to have worked other events.” Except for xxxx’s
statement that he worked a second event on the evening of October 31, 2013, which the
documentary evidence (including his paycheck) proves he did not, neither Plaintiff has provided
anything but this bare assertion — not any pay checks, time sheets, or even any allegations as to the
dates they allegedly worked other events. Instead, they rely entirely on the possibility that there
may have been other dates — which they apparently cannot identify even now — to claim that they
need extensive discovery to fish for evidence that even they are not sure exists. As the New York
courts have consistently held, bare legal conclusions, factual claims that are inherently incredible or
are flatly contradicted by the documentary evidence are not entitled to the presumption of truth or to
be accorded every favorable inference. Skillgames, LLC v. Brody, A.D.3d 247, 250, T67N.Y.S.
2d 418, 421 (1 Dept. 2003); Ullman v. Norma Kamali, Inc., supra, 207 A.D.2d at 692.
Plaintiffs’ argument that the two (2) contracts submitted by Hornblower for the two (2)
events worked by Plaintiff Rivera are insufficient because they do not resolve the issue of whether
service charges were improperly charged through the class period, going back to 2008, cannot
withstand scrutiny. As stated above, Hornblower New York did not begin doing business until
April 2012, not 2008. In any event, at this point, no class has been certified and xxxx and Rivera
are the only plaintiffs. If they cannot state a claim for unpaid service or administrative charges in
violation of NYLL §196-d, the Amended Complaint must be dismissed, since no purported class
representative would remain. See Rivkin v. Heraus Kulze GmbH, 289 A.D. 2d 27, 28, 734 N.Y.S.
2d 31, 32 (1 Dept. 2001) (“To allow the two individual plaintiffs who moved for class certification
to maintain a class action in spite of their lack of damages violates the requirement that class
actions be brought in the name of a particular plaintiff who has a cause of action and is
representative of the interests of the class.” (see CPLR 901).
Because the documentary evidence conclusively proves that (1) Plaintiff xxxx did not work
any events at which an administrative fee was charged; and (2) Plaintiff Rivera worked two (2)
events at which the purpose of the administrative fee and the fact that it was not a gratuity for the
service staff, were clearly disclosed to the customer, neither Plaintiff can state a claim pursuant to
NYLL §196-d and the Amended Complaint must be dismissed.
IV. THE COURT LACKS PERSONAL JURISDICTION OVER
HORNBLOWER YACHTS, LLC
First, Plaintiff's only allegation about Hornblower Yachts in its Amended Complaint is that
it is a domestic corporation existing under the laws of the State of New York and maintaining a
principal place of business at 353 West Street, New York, New York. Evena minimal search
would have revealed that Hornblower Yachts is a limited liability company organized and existing
under the laws of the State of California, with a principal place of business at Pier 3, The
Embarcadero, San Francisco, California 94111. A copy of the Articles of Organization —
Conversion is annexed to the Stoll Decl. as Ex. C3
Not only did Plaintiffs incorrectly assert the state of incorporation, but they failed to allege
any facts that would support their belated and purely conclusory claim that Hornblower New York,
LLC and Hornblower Yachts, LLC are inextricably intertwined. In Donnetta v. S.A.R.L.
DeGestion Pierre Cardin, 3 Misc. 3d 1106(A), (Sup. Ct., N.Y. Cty. 2004) the only case cited by
Plaintiffs, there were uncontradicted assertions by plaintiff that, among other things, U.S. licensing
royalties were paid either directly to the French corporation or the U.S. corporation. The French
corporation maintained a bank account in the U.S. to pay the operations and payroll of the U.S.
3 Hornblower Yachts, LLC was converted to its present status from a corporate entity named Hornblower Yachts, Inc.,
also incorporated in the State of California. See Stoll Declaration, Ex. C.
7
corporation which had no independent source of income. The court found that the French
corporation had opened an office in New York to administer and enforce its U.S. trademark licenses
and thus could “reasonably anticipate” that it would be subject to the jurisdiction of the New York
courts.
No such facts have been alleged in this case, nor would they be true if they were. As stated
in the Affidavit of Richard Jacobs, Esq., annexed to the moving papers, Hornblower Yachts, LLC ,
is a California limited liability company that operates cruises only in the State of California and has
no ties of any kind to New York. The only allegations about Hornblower Yachts in the Amended
Complaint is the erroneous allegation that it is a New York corporation, hardly the type of
“sufficient start” towards proving ties with New York that the court noted in HBK Master Fund
L.P. v. Troika Dialog USA, Inc., 85 A.D. 3d 665 (1* Dept. 2011).
Finally, Plaintiffs’ attempt to claim that they have reason to believe that Hornblower Yachts
is, in fact, conducting business in New York from its reading In the Matter of Hornblower Yachts.
LLC v. Harvey, 121 A.D. 3d 1513 (4" Dept. 2014) is entirely misplaced. There is nothing in
Matter of Hornblower that states or even suggests that Hornblower Yachts is conducting business in
New York. In fact, quite the opposite. Hornblower Yachts had considered making a bid for the
New York State license for operating cruises from Niagara Falls, New York, but the State of New
York declined to open the process for bidding. The Appellate Division ruled that New York was
not required to do so. Thus, Hornblower Yachts was actually precluded from conducting that
particular business in New York. Plaintiff present no evidence, or even a colorable reason to
believe that Hornblower Yachts has ever engaged in any business in New York State.
CONCLUSION
For all of the foregoing reasons, Defendants respectfully submit that they are entitled to an
order granting the Motion to Dismiss in whole or in part, and to such other, further and different
relief as to this court may seem just and proper.
Dated: New York, New York
March 26, 2015
Respectfully submitted:
KANE KESSLER, P.C.
Attorneys for Defendants Hornblower New York
LLC, Hornblower Yachts, LLC and Terry
MacRae
(>
<1 NSN
h A. Stoll
1350 Av we of the Americas
New York, N.Y. 10019
(212)519-5165
jstoll@kanekessler.com
Yo: Virginia & Ambinder, LLP
Attorneys for Plaintiffs
40 Broad Street, 7" Floor
New York, N.Y. 10004
(212) 943-9080
lambinder@vandallp.com
LEEDS BROWN LAW FIRM, P.C
Attorneys for Plaintiffs
One Old Country Place, Suite 347
Carle Place, N.Y. 11514
(516)873-9550
jbrown@leedsbrownlaw.com
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INDEX NO. 160993/2014 (FILED: NEW YORK COUNTY CLERK 0372672015 01:36 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF 03/26/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK we ee ee nee ee ee en ee eee eee xxxxxxxx xxxx and STAR JADA RIVERA. Individually and on behalf of a class of similarly Index No. 160993/2014 situated employees, Plaintiffs, -against- HORNBLOWER NEW YORK, LLC; HORNBLOWER YACHTS, INC.; HORNBLOWER : CRUISES & EVENTS; TERRY MACRAE; and any other related entities, Defendants. MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS TABLE OF CONTENTS TABLE OF AUTHORITIES sseeseccecseesensenseseeasensessesacenstaseasseossensesssessnsasssossousossonsenesaeeassenenes I. STANDARDS FOR MOTION TO DISMISS PURSUANT TO CPLR 3211 seeessuseseneeensensenseneseneaseanensensessssenssesecansessneensanonsunsnssnsennsecsensenassnensennenes II. PLAINTIFFS WERE NEVER EMPLOYEES OF HORNBLOWER. seeesesseseseases IJ. HORNBLOWER CRUISES DID NOT CHARGE A FEE PURPORTED TO BE A GRATUITY, IV. THE COURT LACKS PERSONAL JURISDICTION OVER HORNBLOWER YACHTS, LLC senereaseeesessseeseeessenseneneeee CONCLUSION sensaasaaneaneneeesoneenens TABLE OF AUTHORITIES Page(s) Cases Connor v. Pier Sixty, LLC 23 Misc. 3d 435 (Sup. Ct., N.Y. Cty., 2009) Donnetta v. S.A.R.L. DeGestion Pierre Cardin, 3 Misc. 3d 1106(A) (Sup. Ct., N.Y. Cty. 2004) HBK Master Fund L.P. v. Troika Dialog USA, Inc. 85 A.D. 3d 665 (1st Dept. 2011) In the Matter of Hornblower Yachts, LLC v. Harvey, 121 A.D. 3d 1513 (4th Dept. 2014) 7,8 Knickerbocker Field Club v. Site Selection Board, 41 A.D 2d 539, 339 N.Y.S.2d 485(2d Dept. 1973) Leon v. Martinez. 84.N.Y.2d 83, 614 N.Y.S.2d 972 (1994) Rivkin v. Heraus Kulze GmbH. 289 A.D. 2d 27, 734 N.Y.S. 2d 31 (1st Dept. 2001) Saratoga Harness Racing Ass’n. v. Moss, 26 A.D. 2d 486, 275 N.Y.S.2d 8888 GaPDet.© 1990), aff'd 20 N.Y.2d 733 (1967)... Skillgames, LLC y. Brody, A.D.3d 247, 250, 767 N.Y.S. 2d 418, 421 Ullman v. Norma Kamali, Inc., 207 A.D.2d 691, 616 N.Y.S.2d 583 (1st Dept. 1994) 1,6 Statutes New York Labor Law § 106-d Other Authorities CPLR 901 CPLR 3211 I. STANDARDS FOR MOTION TO DISMISS PURSUANT TO CPLR 3211 A motion to dismiss is a motion addressed to the pleadings. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211, the court must accept all facts alleged as true and determine whether they fit into any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972 (1994). However, factual allegations that consist of bare legal conclusions or that are flatly contradicted by documentary evidence are not entitled to such con: sideration. Uilman Norma Nama, v. Norma Ullman Vv. Inc., 207 A.D.2d 691, 616 N.Y.S.2d 583 Kamali, ine: (1 Dept. 1994). Moreover, pursuant to CPLR 3211 (a)(1), a party may move to dismiss “on the ground that ... a defense is founded upon documentary evidence.” Id. at 88. Ona motion pursuant to 3211 (a), a court may consider affidavits and other evidence outside the pleadings, converting it to one for summary judgment. Saratoga Harness Racing Ass’n. v. Moss, 26 A.D. 2d 486, 488, 275 N.Y.S.2d 888, 890 (3d Det. 1996), aff'd 20 N.Y.2d 733 (1967). See also, Knickerbocker Field Club y. Site Selection Board, 41 A.D 2d 539, 540, 339 N.Y.S.2d 485, 486(2d Dept. 1973). As discussed below, the documentary evidence presented by Defendants Hornblower New York, LLC (hereinafter “Hornblower”) and Hornblower Yachts, LLC (hereinafter “Hornblower Yachts”) (collectively the “Hornblower Defendants”) demonstrate collectively that (1) Plaintiffs were never employed by any of the Hornblower Defendants; (2) Plaintiff xxxx worked only one function at a Hornblower event at which no administrative or service charge was imposed on the customers; (3) Plaintiff Rivera worked only two (2) functions at Hornblower events at which the Charter Agreement clearly and unambiguously stated that the administrative charge was not a gratuity and not distributed to service employees; and (3) Hornblower Yachts has never done business in the State of New York. #394452.1 Il. PLAINTIFFS WERE NEVER EMPLOYEES OF HORNBLOWER Plaintiffs did not allege in their Amended Class Action Complaint (“Amended Complaint”) that they were employed by any entities other than either of the Hornblower Defendants or Hornblower Yachts, nor did they alleged in their Amended Complaint that their employment relationship with the Hornblower Defendants, notwithstanding their employment by other entities, was based on some or any of the factors set forth in Bynog v. Cipriani, N.Y. 3d 193 (2003), such as whether or not plaintiffs worked at their own convenience, were free to engage in other employment, received fringe benefits, were on Hornblower’s payroll and were on a fixed schedule. Even though on the face of their pleading, no such allegations can be found nor are they even hinted at, Plaintiffs raise now, for the first time, that they require discovery to establish the fact that may establish that they had an employment relationship of some sort with the Hornblower Defendants. Plaintiffs are dismissive of the fact they worked only one or two (2) functions at Hornblower events in their entire lifetimes, claiming that this is a purported class action with a statute of limitation spanning six years and thousands of events. Before bringing their Amended Complaint, Plaintiffs did not even do enough due diligence to discover that Hornblower’s New York operations did not commence until April 2012. Annexed to the Declaration of Judith A. Stoll, Esq., is a copy of a page from Hornblowernewyork.com, which states: “Since 2012, Hornblower New York has offered private event charters and public cruises from Pier 40 in the West Village ...” (emphasis added).! While it is true that the motion in Bynog v. Cipriani, supra, was one for summary judgment following discovery, it is also true that the plaintiffs in Bynog expressly alleged in their Complaint ” 1 References to the exhibits attached to the Declaration of Judith A. Stoll, Esq. are denoted “Stoll Decl., Ex. __’ 2 that the staffing agency, M.J. Alexander and its principal, Michael Alexander, were the disclosed agents of Cipriani. Id. at 196. Similarly, in Connor v. Pier Sixty, LLC, 23 Misc. 3d 435 (Sup. Ct., N.Y. Cty., 2009), the Plaintiffs alleged that they were “sent by Gotham Personnel LLC (the staffing company) to work as servers at parties held at Pier Sixty ...” See Stoll Decl., Ex. B, paragraph 15 of the Complaint in Connor v. Pier Sixty, LLC. Indeed, Gotham Personnel, LLC was named as a party defendant in that case. By contrast, in this case there is no mention at all of any other employing entity and simply no allegation whatsoever that would alert Defendants that Plaintiffs were not simply mistaken about the identity of their real employers and/or that there were any indicia of an employment relationship with Hornblower, perhaps based on a theory of “joint” employment. The documentary evidence establishes without any possibility of dispute that both Plaintiff xxxx and Plaintiff Rivera were employed by other entities — in xxxx’s case, by Preferred Wait Staffers (“PWS”) and in Rivera’s case, by Walsh Associates. Defendants have produced xxxx’s application for employment with PWS and his time sheet and check from PWS, categorically establishing that he was employed by PWS. Defendants have also produced an email from xxxx in which he states that he was employed by PWS. Defendants have further produced the time sheets from Walsh Associates showing that Plaintiff Rivera worked for them at two (2) Hornblower events in August and September 2013, showing Hornblower as the “client.” In response to this clear documentation, neither Plaintiff has denied that he/she was employed by other entities nor have ? Defendants are baffled by Plaintiffs’ claim that the emails from xxxx were “cherry-picked.” There is no evidence or even assertion that xxxx sent any other emails to Hornblower at any time from which it could “cherry-pick” the ones attached to the moving papers. But even if there were other emails, in the emails which were produced xxxx clearly and unambiguously acknowledges that he was employed by PWS and claims to have worked only two (2) Hornblower events, both on October 31, 2013. As explained below, the documentary evidence shows that he actually worked only one event that evening and left voluntarily after the first event. 3 they submitted any documentation or even an affidavit contradicting the information in the documentation submitted by Defendants. More significantly, Plaintiffs make no allegations in their Amended Complaint or in their Opposition to the Motion to Dismiss that would support a claim of an employment relationship other than the bald, conclusory statement that they were “employed” by Hornblower. Indeed, in their Opposition, Plaintiffs do not deny that they were employed by PWS and Walsh, respectively. Instead, in opposition to the Motion, Plaintiffs simply assert that despite the lack of any allegations in their pleadings that would support a claim of a joint employment relationship or even any allegation that there were employed by other entities while performing work for Hornblower, they should be given the opportunity at this belated date to try to gather information through discovery they would support a claim that they had not previously made. It is evident that Plaintiffs, having realized the fatal flaw in their Amended Complaint, hope to save their case through a wide-ranging fishing expedition after the fact. Defendants assert that their attempts to save their claim is too little too late. The cases cited by Plaintiffs supporting the argument that employment status is always a matter for summary judgment or trial are inapposite. Each of these cases was a personal injury case in which the question was whether the individual driver who caused the accident was an employee or independent contractor of the defendant trucking or cab company so as to impose vicarious liability on the Company. Since the trucking/cab companies were named as defendants, the issue of the vicarious liability of these entities for the acts of the drivers must necessarily have been raised in the complaint, thus satisfying any pleading requirements. In this case, Plaintiffs have not alleged or even hinted at “vicarious” liability. They have merely asserted that they were “employed” by Hornblower, which they clearly were not, and have not provided any facts which would create an issue for a jury to decide as to whether they can be deemed “employed” by Hornblower in the face of documentary evidence that they were actually employed by other entities. 11. HORNBLOWER CRUISES DID NOT CHARGE A FEE PURPORTED TO BE A GRATUITY Plaintiff xxxx’s claim clearly must be dismissed. The documentary evidence demonstrates beyond dispute that he worked only one event on October 31, 2013 and Hornblower did not charge any administrative fee or service charge for that event. Plaintiff xxxx has no response in his Opposition to that documentary evidence. He does not submit any check stubs, time sheets, paperwork of any kind or even his own affidavit supporting a claim that would contradict that documentary evidence. In the absence of any evidence that Hornblower actually charged any administrative fee or service charge for the event that he worked, and in the face of this indisputable and dispositive documentary evidence, he does not raise any issue of fact as to whether it did so. xxxx’s claim that he was deprived of gratuities pursuant to New York Labor Law §196-d simply cannot stand. Plaintiff Rivera’s claim also must be dismissed. The documentary evidence demonstrates beyond dispute that for the two (2) events she worked for Hornblower, the customer was informed in writing in the Charter Agreement that the administrative fee is not a gratuity and is not distributed to the servers and that customers can leave voluntary gratuities for servers if the service is to their satisfaction. Both Plaintiffs try to evade the import of these facts by making the bald and unsupported statement in a footnote that “plaintiffs purport to have worked other events.” Except for xxxx’s statement that he worked a second event on the evening of October 31, 2013, which the documentary evidence (including his paycheck) proves he did not, neither Plaintiff has provided anything but this bare assertion — not any pay checks, time sheets, or even any allegations as to the dates they allegedly worked other events. Instead, they rely entirely on the possibility that there may have been other dates — which they apparently cannot identify even now — to claim that they need extensive discovery to fish for evidence that even they are not sure exists. As the New York courts have consistently held, bare legal conclusions, factual claims that are inherently incredible or are flatly contradicted by the documentary evidence are not entitled to the presumption of truth or to be accorded every favorable inference. Skillgames, LLC v. Brody, A.D.3d 247, 250, T67N.Y.S. 2d 418, 421 (1 Dept. 2003); Ullman v. Norma Kamali, Inc., supra, 207 A.D.2d at 692. Plaintiffs’ argument that the two (2) contracts submitted by Hornblower for the two (2) events worked by Plaintiff Rivera are insufficient because they do not resolve the issue of whether service charges were improperly charged through the class period, going back to 2008, cannot withstand scrutiny. As stated above, Hornblower New York did not begin doing business until April 2012, not 2008. In any event, at this point, no class has been certified and xxxx and Rivera are the only plaintiffs. If they cannot state a claim for unpaid service or administrative charges in violation of NYLL §196-d, the Amended Complaint must be dismissed, since no purported class representative would remain. See Rivkin v. Heraus Kulze GmbH, 289 A.D. 2d 27, 28, 734 N.Y.S. 2d 31, 32 (1 Dept. 2001) (“To allow the two individual plaintiffs who moved for class certification to maintain a class action in spite of their lack of damages violates the requirement that class actions be brought in the name of a particular plaintiff who has a cause of action and is representative of the interests of the class.” (see CPLR 901). Because the documentary evidence conclusively proves that (1) Plaintiff xxxx did not work any events at which an administrative fee was charged; and (2) Plaintiff Rivera worked two (2) events at which the purpose of the administrative fee and the fact that it was not a gratuity for the service staff, were clearly disclosed to the customer, neither Plaintiff can state a claim pursuant to NYLL §196-d and the Amended Complaint must be dismissed. IV. THE COURT LACKS PERSONAL JURISDICTION OVER HORNBLOWER YACHTS, LLC First, Plaintiff's only allegation about Hornblower Yachts in its Amended Complaint is that it is a domestic corporation existing under the laws of the State of New York and maintaining a principal place of business at 353 West Street, New York, New York. Evena minimal search would have revealed that Hornblower Yachts is a limited liability company organized and existing under the laws of the State of California, with a principal place of business at Pier 3, The Embarcadero, San Francisco, California 94111. A copy of the Articles of Organization — Conversion is annexed to the Stoll Decl. as Ex. C3 Not only did Plaintiffs incorrectly assert the state of incorporation, but they failed to allege any facts that would support their belated and purely conclusory claim that Hornblower New York, LLC and Hornblower Yachts, LLC are inextricably intertwined. In Donnetta v. S.A.R.L. DeGestion Pierre Cardin, 3 Misc. 3d 1106(A), (Sup. Ct., N.Y. Cty. 2004) the only case cited by Plaintiffs, there were uncontradicted assertions by plaintiff that, among other things, U.S. licensing royalties were paid either directly to the French corporation or the U.S. corporation. The French corporation maintained a bank account in the U.S. to pay the operations and payroll of the U.S. 3 Hornblower Yachts, LLC was converted to its present status from a corporate entity named Hornblower Yachts, Inc., also incorporated in the State of California. See Stoll Declaration, Ex. C. 7 corporation which had no independent source of income. The court found that the French corporation had opened an office in New York to administer and enforce its U.S. trademark licenses and thus could “reasonably anticipate” that it would be subject to the jurisdiction of the New York courts. No such facts have been alleged in this case, nor would they be true if they were. As stated in the Affidavit of Richard Jacobs, Esq., annexed to the moving papers, Hornblower Yachts, LLC , is a California limited liability company that operates cruises only in the State of California and has no ties of any kind to New York. The only allegations about Hornblower Yachts in the Amended Complaint is the erroneous allegation that it is a New York corporation, hardly the type of “sufficient start” towards proving ties with New York that the court noted in HBK Master Fund L.P. v. Troika Dialog USA, Inc., 85 A.D. 3d 665 (1* Dept. 2011). Finally, Plaintiffs’ attempt to claim that they have reason to believe that Hornblower Yachts is, in fact, conducting business in New York from its reading In the Matter of Hornblower Yachts. LLC v. Harvey, 121 A.D. 3d 1513 (4" Dept. 2014) is entirely misplaced. There is nothing in Matter of Hornblower that states or even suggests that Hornblower Yachts is conducting business in New York. In fact, quite the opposite. Hornblower Yachts had considered making a bid for the New York State license for operating cruises from Niagara Falls, New York, but the State of New York declined to open the process for bidding. The Appellate Division ruled that New York was not required to do so. Thus, Hornblower Yachts was actually precluded from conducting that particular business in New York. Plaintiff present no evidence, or even a colorable reason to believe that Hornblower Yachts has ever engaged in any business in New York State. CONCLUSION For all of the foregoing reasons, Defendants respectfully submit that they are entitled to an order granting the Motion to Dismiss in whole or in part, and to such other, further and different relief as to this court may seem just and proper. Dated: New York, New York March 26, 2015 Respectfully submitted: KANE KESSLER, P.C. Attorneys for Defendants Hornblower New York LLC, Hornblower Yachts, LLC and Terry MacRae (> <1 NSN h A. Stoll 1350 Av we of the Americas New York, N.Y. 10019 (212)519-5165 jstoll@kanekessler.com Yo: Virginia & Ambinder, LLP Attorneys for Plaintiffs 40 Broad Street, 7" Floor New York, N.Y. 10004 (212) 943-9080 lambinder@vandallp.com LEEDS BROWN LAW FIRM, P.C Attorneys for Plaintiffs One Old Country Place, Suite 347 Carle Place, N.Y. 11514 (516)873-9550 jbrown@leedsbrownlaw.com