Preview
FILED: NEW YORK COUNTY CLERK 12/11/2014 10:20 AM INDEX NO. 160993/2014
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
xxxxxxxx xxxx and STAR JADA RIVERA, on behalf of Index No.: 160993/2014
themselves and others similarly situated,
FIRST AMENDED
Plaintiffs, CLASS ACTION
COMPLAINT
-against-
Jury Trial
HORNBLOWER NEW YORK, LLC; HORNBLOWER
YACHTS, INC.; HORNBLOWER CRUISES & EVENTS;
TERRY MACRAE; and any other related entities,
Defendants.
Plaintiffs, by his attorneys, Leeds Brown Law, P.C. and Virginia and Ambinder, LLP,
alleges upon knowledge to himself and upon information and belief as to all other matters as
follows:
PRELIMINARY STATEMENT
1. This action is brought pursuant to the New York Labor Law § 190 et seq., New
York Labor Law § 196-d, and 12 N.Y.C.R.R. § 146 et seq. (“Hospitality Wage Order”) to
recover unlawfully retained gratuities owed to Plaintiffs and other similarly situated persons who
are presently or were formerly employed by HORNBLOWER NEW YORK, LLC;
HORNBLOWER CRUISES & EVENTS; HORNBLOWER YACHTS, INC.; TERRY
MACRAE; and any other related entities (“Defendants”).
2. Upon information and belief, beginning in approximately November 2008 and
continuing through the present, Defendants have engaged in a policy and practice of unlawfully
retaining employees’ gratuities.
3. Upon information and belief, beginning in approximately November 2008 and
continuing through the present, Defendants have engaged in a policy and practice of charging its
customers a mandatory charge of approximately 20 to 22 % (the “Service Charge”) for functions
or admission related to Defendants’ charter yachts and dining cruises.
4. From November 2008 through the present, and upon information and belief, other
documents including menus, contracts, invoices and other catering related documents contained
the Service Charge without disclaiming that the Service Charge is not a gratuity for the staff.
5. A reasonable customer would believe that the Service Charge was in fact a
gratuity for Plaintiffs and similarly situated employees.
6. Defendants have engaged in a policy and practice of failing to pay the Service
Charge to Plaintiffs and similarly situated employees and instead retained the money for their
own benefit in violation of NYLL Article 6 § 196-d.
7. Plaintiffs has initiated this action seeking for himself and on behalf of all similarly
situated employees, for compensation, including gratuities, that they were deprived of – plus
interest, attorneys’ fees, liquidated damages, and costs.
THE PARTIES
8. Plaintiff xxxxxxxx xxxx is an individual who resides in the County of
Bronx, New York, and who worked for Defendants in food and service capacities during October
2014.
9. Plaintiff STAR JADA RIVERA is an individual who resides in the State of
Pennsylvania and who worked for Defendants in food and service capacities during July 2013.
10. Upon information and belief, Defendant HORNBLOWER NEW YORK, LLC, is
a foreign limited liability company organized and existing under the laws of the State of New
York, with its principal places of business at 353 West St., New York, New York, and is engaged
in the yacht touring, catering, and dining cruise business.
11. Upon information and belief, Defendant HORNBLOWER YACHTS, INC. is a
domestic corporation organized and existing under the laws of the State of New York, with its
principal places of business at 353 West St., New York, New York, and is engaged in the yacht
touring, catering, and dining cruise business.
12. Upon information and belief, Defendant HORNBLOWER CRUISES & EVENTS
is a domestic corporation organized and existing under the laws of the State of New York, with
its principal places of business at 353 West St., New York, New York, and is engaged in the
yacht touring, catering, and dining cruise business.
13. Upon information and belief, Defendant TERRY MACRAE is a resident of San
Francisco, California, with his principal places of business at 353 West St., New York, New
York, and is engaged in the yacht touring, catering, and dining cruise business.
CLASS ALLEGATIONS
14. This action is properly maintainable as a Class Action under Article 9 of the New
York Civil Practice Law and Rules.
15. This action is brought on behalf of Plaintiffs and a class consisting of similarly
situated employees who performed work for Defendants as service employees, including such
workers as wait staff, waiters, servers, captains, bussers, bartenders, food runners, maitre d’s, and
in various other related customarily-tipped trades.
16. The putative class is so numerous that joinder of all members is impracticable.
The size of the putative class is believed to be in excess of 50 employees. In addition, the names
of all potential members of the putative class are not known.
17. The questions of law and fact common to the putative class predominate over any
questions affecting only individual members. These questions of law and fact include, but are not
limited to:
(1) whether Defendants assessed charges to its customers in the nature of gratuities, as
those terms are defined under the New York Labor Law and the cases and regulations
interpreting same;
(2) whether Defendants’ patrons made payments to Defendants or which were received or
retained by Defendants which reasonable patrons would assume to have been in the
nature of gratuities; and
(3) whether Defendants improperly retained gratuities in violation of New York Labor
Law § 196-d and cases interpreting same.
18. The claims of the Named Plaintiffs are typical of the claims of the putative class.
The Named Plaintiffs and putative class were all subject to Defendants’ policies and willful
practices of improperly retaining gratuities in violation of New York Labor Law § 196-d.
19. Plaintiffs and their counsel will fairly and adequately protect the interests of the
putative class.
20. Plaintiffs have retained counsel experienced in complex wage and hour class
action litigation.
21. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy. The individual Plaintiffs and putative class lack the financial
resources to adequately prosecute separate lawsuits against Defendants.
22. A class action will also prevent unduly duplicative litigation resulting from
inconsistent judgments pertaining to the Defendants’ policies.
FACTS
23. Beginning in or about November 2008, Defendants employed, in furtherance of
its restaurant, hotel and catering business, numerous individuals including Plaintiffs and putative
class members, in trades including wait staff, waiters, servers, captains, bussers, bartenders, food
runners, maitre d’s, and in other related customarily-tipped trades (“service workers”).
24. Beginning in or about November 2008 and continuing through the present,
Defendants contracted with customers for dining cruises, yacht tours, or other events such as
parties, birthdays, gatherings, holidays, celebrations, weddings, anniversaries, and other parties
or occasions held on Defendants’ vessels (“cruise events”).
25. For these cruise events, Defendants utilized standard forms, including contracts,
bills, invoices and menus.
26. For many cruise event, Defendants contracted with a customer to provide food
and/or service at a pre-selected location, venue and time.
27. For other cruise events, Defendants contracted with customers to pay an
individual price per person.
28. For each cruise event, Defendants employed a staff of numerous service workers
to perform food and service related tasks.
29. Many of these service workers would perform services under the same contracts
at the same parties.
30. Defendants included a service charge in the amount of approximately 20 to 22 %
on the contract for cruise events or in the price per person for cruise events.
31. Defendants provided customers with other documents – such as menus, bills, and
invoices – that conveyed a “service charge” or “administrative charge”.
32. Defendants failed to disclaim that the Service Charge was not a gratuity for the
staff.
33. Defendants utilized the same standard forms for numerous events that contained a
mandatory Service Charge on it – without disclaimer.
34. Upon information and belief, reasonable patrons would have understood the
Service Charge to be in the nature of a gratuity.
35. Plaintiffs, and, upon information and belief, other members of the putative class,
were not paid the Service Charge.
36. Plaintiffs, and, upon information and belief, other members of the putative class,
were paid an hourly wage.
37. While employed by Defendants, Plaintiff xxxx and Plaintiff Rivera were paid
$12.00 and $15.00 per hour, respectively, in check, as their only compensation.
38. Plaintiff xxxx and Plaintiff Rivera did not receive any portion of the Service
Charge.
39. Upon information and belief, Defendants retained the Service Charge for
themselves.
40. Upon information and belief, Defendants willfully disregarded and purposefully
evaded recordkeeping requirements of applicable New York State law by failing to maintain
proper and complete records of service charges in the nature of gratuities, as required under 12
NYCRR § 146-2.
41. Upon information and belief, Defendants TERRY MACRAE was an officer,
director, shareholder, CEO, and/or president of Defendant’s entities, and (i) had the power to hire
and fire employees for the Defendant entities; (ii) supervised and controlled employee work
schedules or conditions of employment for the Defendant entities; (iii) determined the rate and
method of payment for Defendants’ employees; and (iv) maintained employment records for
Defendants.
FIRST CAUSE OF ACTION AGAINST DEFENDANTS:
UNLAWFUL WITHOLDING OF GRATUITIES
42. Pursuant to New York Labor Law Article 6 § 196-d, and the supporting New
York State Department of Labor Regulations, “No employer or his agent or an officer or agent of
any corporation, or any other person shall demand or accept, directly or indirectly, any part of
the gratuities, received by an employee, or retain any part of a gratuity or of any charge
purported to be a gratuity for an employee.”
43. Pursuant to 12 NYCRR 146-2.18(b), “There shall be a rebuttable presumption
that any charge in addition to charges for food, beverage, lodging, and other specified materials
or services, including but not limited to any charge for ‘service’ or ‘food service,’ is a charge
purported to be a gratuity.”
44. Pursuant to 12 NYCRR 146-2.19(b), “The employer has the burden of
demonstrating, by clear and convincing evidence, that the notification [via a disclaimer] was
sufficient to ensure that a reasonable customer would understand that such charge was not
purported to be a gratuity.”
45. HORNBLOWER NEW YORK, LLC is an employer, within the meaning
contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New
York State Department of Labor Regulations.
46. HORNBLOWER CRUISES & EVENTS is an employer, within the meaning
contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New
York State Department of Labor Regulations.
47. HORNBLOWER YACHTS, INC. is an employer, within the meaning
contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New
York State Department of Labor Regulations.
48. TERRY MACRAE is an employer, within the meaning contemplated, pursuant to
New York Labor Law Article 6 § 190(3) and the supporting New York State Department of
Labor Regulations.
49. Plaintiffs and other members of the putative class are employees, within the
meaning contemplated, pursuant to New York Labor Law Article 6 § 190(2) and the supporting
New York State Department of Labor Regulations.
50. Upon information and belief, Plaintiffs and all members of the putative class
constituted “employees” as that term is defined under New York Labor Law § 190 et seq. and
case law interpreting the same.
51. Gratuities provided by Defendants’ patrons to service employees constitute
“wages” as that term is defined under Article 6 of the New York Labor Law, specifically
including but not limited to New York Labor Law §§ 193, 196-d, 198(3).
52. Defendants unlawfully withheld and retained portions of gratuities provided to
service employees.
53. Defendants unlawfully withheld and retained Service Charges.
54. Defendants therefore violated New York Labor Law Article 6 § 196-d and the
supporting New York State Department of Labor Regulations by withholding and retaining
portions of gratuities and Service Charges earned by service employees.
55. By the foregoing reasons, Defendants have violated New York Labor Law Article
6 § 190 et seq. and the supporting New York State Department of Labor Regulations, and are
liable to Plaintiffs and other members of the putative class action in an amount to be determined
at trial, plus interest, attorneys’ fees, and costs.
WHEREFORE, Plaintiffs, individually and on behalf of all other persons similarly
situated who were employed by Defendants demand judgment:
(1) on their first cause of action against Defendants, in an amount to be determined at trial,
plus interest, attorneys’ fees, and costs, pursuant to the cited Labor Law sections;
(2) together with such other and further relief the Court may deem appropriate.
Dated: New York, New York
December 11, 2014
__s/Lloyd Ambinder___
Lloyd Ambinder
Suzanne Leeds
VIRGINIA & AMBINDER, LLP
111 Broadway, Suite 1403
New York, NY 10016
(212) 943-9080
- and -
Jeffrey K. Brown
Michael A. Tompkins
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
(516) 873-9550
Attorneys for Plaintiffs and Putative Class
Preview
FILED: NEW YORK COUNTY CLERK 12/11/2014 10:20 AM INDEX NO. 160993/2014 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK xxxxxxxx xxxx and STAR JADA RIVERA, on behalf of Index No.: 160993/2014 themselves and others similarly situated, FIRST AMENDED Plaintiffs, CLASS ACTION COMPLAINT -against- Jury Trial HORNBLOWER NEW YORK, LLC; HORNBLOWER YACHTS, INC.; HORNBLOWER CRUISES & EVENTS; TERRY MACRAE; and any other related entities, Defendants. Plaintiffs, by his attorneys, Leeds Brown Law, P.C. and Virginia and Ambinder, LLP, alleges upon knowledge to himself and upon information and belief as to all other matters as follows: PRELIMINARY STATEMENT 1. This action is brought pursuant to the New York Labor Law § 190 et seq., New York Labor Law § 196-d, and 12 N.Y.C.R.R. § 146 et seq. (“Hospitality Wage Order”) to recover unlawfully retained gratuities owed to Plaintiffs and other similarly situated persons who are presently or were formerly employed by HORNBLOWER NEW YORK, LLC; HORNBLOWER CRUISES & EVENTS; HORNBLOWER YACHTS, INC.; TERRY MACRAE; and any other related entities (“Defendants”). 2. Upon information and belief, beginning in approximately November 2008 and continuing through the present, Defendants have engaged in a policy and practice of unlawfully retaining employees’ gratuities. 3. Upon information and belief, beginning in approximately November 2008 and continuing through the present, Defendants have engaged in a policy and practice of charging its customers a mandatory charge of approximately 20 to 22 % (the “Service Charge”) for functions or admission related to Defendants’ charter yachts and dining cruises. 4. From November 2008 through the present, and upon information and belief, other documents including menus, contracts, invoices and other catering related documents contained the Service Charge without disclaiming that the Service Charge is not a gratuity for the staff. 5. A reasonable customer would believe that the Service Charge was in fact a gratuity for Plaintiffs and similarly situated employees. 6. Defendants have engaged in a policy and practice of failing to pay the Service Charge to Plaintiffs and similarly situated employees and instead retained the money for their own benefit in violation of NYLL Article 6 § 196-d. 7. Plaintiffs has initiated this action seeking for himself and on behalf of all similarly situated employees, for compensation, including gratuities, that they were deprived of – plus interest, attorneys’ fees, liquidated damages, and costs. THE PARTIES 8. Plaintiff xxxxxxxx xxxx is an individual who resides in the County of Bronx, New York, and who worked for Defendants in food and service capacities during October 2014. 9. Plaintiff STAR JADA RIVERA is an individual who resides in the State of Pennsylvania and who worked for Defendants in food and service capacities during July 2013. 10. Upon information and belief, Defendant HORNBLOWER NEW YORK, LLC, is a foreign limited liability company organized and existing under the laws of the State of New York, with its principal places of business at 353 West St., New York, New York, and is engaged in the yacht touring, catering, and dining cruise business. 11. Upon information and belief, Defendant HORNBLOWER YACHTS, INC. is a domestic corporation organized and existing under the laws of the State of New York, with its principal places of business at 353 West St., New York, New York, and is engaged in the yacht touring, catering, and dining cruise business. 12. Upon information and belief, Defendant HORNBLOWER CRUISES & EVENTS is a domestic corporation organized and existing under the laws of the State of New York, with its principal places of business at 353 West St., New York, New York, and is engaged in the yacht touring, catering, and dining cruise business. 13. Upon information and belief, Defendant TERRY MACRAE is a resident of San Francisco, California, with his principal places of business at 353 West St., New York, New York, and is engaged in the yacht touring, catering, and dining cruise business. CLASS ALLEGATIONS 14. This action is properly maintainable as a Class Action under Article 9 of the New York Civil Practice Law and Rules. 15. This action is brought on behalf of Plaintiffs and a class consisting of similarly situated employees who performed work for Defendants as service employees, including such workers as wait staff, waiters, servers, captains, bussers, bartenders, food runners, maitre d’s, and in various other related customarily-tipped trades. 16. The putative class is so numerous that joinder of all members is impracticable. The size of the putative class is believed to be in excess of 50 employees. In addition, the names of all potential members of the putative class are not known. 17. The questions of law and fact common to the putative class predominate over any questions affecting only individual members. These questions of law and fact include, but are not limited to: (1) whether Defendants assessed charges to its customers in the nature of gratuities, as those terms are defined under the New York Labor Law and the cases and regulations interpreting same; (2) whether Defendants’ patrons made payments to Defendants or which were received or retained by Defendants which reasonable patrons would assume to have been in the nature of gratuities; and (3) whether Defendants improperly retained gratuities in violation of New York Labor Law § 196-d and cases interpreting same. 18. The claims of the Named Plaintiffs are typical of the claims of the putative class. The Named Plaintiffs and putative class were all subject to Defendants’ policies and willful practices of improperly retaining gratuities in violation of New York Labor Law § 196-d. 19. Plaintiffs and their counsel will fairly and adequately protect the interests of the putative class. 20. Plaintiffs have retained counsel experienced in complex wage and hour class action litigation. 21. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The individual Plaintiffs and putative class lack the financial resources to adequately prosecute separate lawsuits against Defendants. 22. A class action will also prevent unduly duplicative litigation resulting from inconsistent judgments pertaining to the Defendants’ policies. FACTS 23. Beginning in or about November 2008, Defendants employed, in furtherance of its restaurant, hotel and catering business, numerous individuals including Plaintiffs and putative class members, in trades including wait staff, waiters, servers, captains, bussers, bartenders, food runners, maitre d’s, and in other related customarily-tipped trades (“service workers”). 24. Beginning in or about November 2008 and continuing through the present, Defendants contracted with customers for dining cruises, yacht tours, or other events such as parties, birthdays, gatherings, holidays, celebrations, weddings, anniversaries, and other parties or occasions held on Defendants’ vessels (“cruise events”). 25. For these cruise events, Defendants utilized standard forms, including contracts, bills, invoices and menus. 26. For many cruise event, Defendants contracted with a customer to provide food and/or service at a pre-selected location, venue and time. 27. For other cruise events, Defendants contracted with customers to pay an individual price per person. 28. For each cruise event, Defendants employed a staff of numerous service workers to perform food and service related tasks. 29. Many of these service workers would perform services under the same contracts at the same parties. 30. Defendants included a service charge in the amount of approximately 20 to 22 % on the contract for cruise events or in the price per person for cruise events. 31. Defendants provided customers with other documents – such as menus, bills, and invoices – that conveyed a “service charge” or “administrative charge”. 32. Defendants failed to disclaim that the Service Charge was not a gratuity for the staff. 33. Defendants utilized the same standard forms for numerous events that contained a mandatory Service Charge on it – without disclaimer. 34. Upon information and belief, reasonable patrons would have understood the Service Charge to be in the nature of a gratuity. 35. Plaintiffs, and, upon information and belief, other members of the putative class, were not paid the Service Charge. 36. Plaintiffs, and, upon information and belief, other members of the putative class, were paid an hourly wage. 37. While employed by Defendants, Plaintiff xxxx and Plaintiff Rivera were paid $12.00 and $15.00 per hour, respectively, in check, as their only compensation. 38. Plaintiff xxxx and Plaintiff Rivera did not receive any portion of the Service Charge. 39. Upon information and belief, Defendants retained the Service Charge for themselves. 40. Upon information and belief, Defendants willfully disregarded and purposefully evaded recordkeeping requirements of applicable New York State law by failing to maintain proper and complete records of service charges in the nature of gratuities, as required under 12 NYCRR § 146-2. 41. Upon information and belief, Defendants TERRY MACRAE was an officer, director, shareholder, CEO, and/or president of Defendant’s entities, and (i) had the power to hire and fire employees for the Defendant entities; (ii) supervised and controlled employee work schedules or conditions of employment for the Defendant entities; (iii) determined the rate and method of payment for Defendants’ employees; and (iv) maintained employment records for Defendants. FIRST CAUSE OF ACTION AGAINST DEFENDANTS: UNLAWFUL WITHOLDING OF GRATUITIES 42. Pursuant to New York Labor Law Article 6 § 196-d, and the supporting New York State Department of Labor Regulations, “No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” 43. Pursuant to 12 NYCRR 146-2.18(b), “There shall be a rebuttable presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any charge for ‘service’ or ‘food service,’ is a charge purported to be a gratuity.” 44. Pursuant to 12 NYCRR 146-2.19(b), “The employer has the burden of demonstrating, by clear and convincing evidence, that the notification [via a disclaimer] was sufficient to ensure that a reasonable customer would understand that such charge was not purported to be a gratuity.” 45. HORNBLOWER NEW YORK, LLC is an employer, within the meaning contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New York State Department of Labor Regulations. 46. HORNBLOWER CRUISES & EVENTS is an employer, within the meaning contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New York State Department of Labor Regulations. 47. HORNBLOWER YACHTS, INC. is an employer, within the meaning contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New York State Department of Labor Regulations. 48. TERRY MACRAE is an employer, within the meaning contemplated, pursuant to New York Labor Law Article 6 § 190(3) and the supporting New York State Department of Labor Regulations. 49. Plaintiffs and other members of the putative class are employees, within the meaning contemplated, pursuant to New York Labor Law Article 6 § 190(2) and the supporting New York State Department of Labor Regulations. 50. Upon information and belief, Plaintiffs and all members of the putative class constituted “employees” as that term is defined under New York Labor Law § 190 et seq. and case law interpreting the same. 51. Gratuities provided by Defendants’ patrons to service employees constitute “wages” as that term is defined under Article 6 of the New York Labor Law, specifically including but not limited to New York Labor Law §§ 193, 196-d, 198(3). 52. Defendants unlawfully withheld and retained portions of gratuities provided to service employees. 53. Defendants unlawfully withheld and retained Service Charges. 54. Defendants therefore violated New York Labor Law Article 6 § 196-d and the supporting New York State Department of Labor Regulations by withholding and retaining portions of gratuities and Service Charges earned by service employees. 55. By the foregoing reasons, Defendants have violated New York Labor Law Article 6 § 190 et seq. and the supporting New York State Department of Labor Regulations, and are liable to Plaintiffs and other members of the putative class action in an amount to be determined at trial, plus interest, attorneys’ fees, and costs. WHEREFORE, Plaintiffs, individually and on behalf of all other persons similarly situated who were employed by Defendants demand judgment: (1) on their first cause of action against Defendants, in an amount to be determined at trial, plus interest, attorneys’ fees, and costs, pursuant to the cited Labor Law sections; (2) together with such other and further relief the Court may deem appropriate. Dated: New York, New York December 11, 2014 __s/Lloyd Ambinder___ Lloyd Ambinder Suzanne Leeds VIRGINIA & AMBINDER, LLP 111 Broadway, Suite 1403 New York, NY 10016 (212) 943-9080 - and - Jeffrey K. Brown Michael A. Tompkins LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 (516) 873-9550 Attorneys for Plaintiffs and Putative Class