Cooke v. Frank Brunckhorst Co., LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DENIS COOKE, on behalf of himself and all others

similarly situated,

MEMORANDUM &

Plaintiff, ORDER

-against-

23-CV-6333

FRANK BRUNCKHORST CO., LLC, (Marutollo, M.J.)

Defendant.

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JOSEPH A. MARUTOLLO, United States Magistrate Judge:

On March 22, 2024, this Court issued a Memorandum and Order granting, in part, Plaintiff

Denis Cooke’s motion seeking conditional certification as a Fair Labor Standards Act (“FLSA”)

collective action comprised of all former and current hourly workers of Defendant Frank

Brunckhorst Co., LLC, at any point in time between August 23, 2020 and August 23, 2023. See

Cooke v. Frank Brunckhorst Co., LLC, -- F. Supp. 3d -- , 2024 WL 1230231 (E.D.N.Y. Mar. 22,

2024) (the “Conditional Certification Order.”).

On April 5, 2024, Defendant filed a Motion for Reconsideration of this Court’s Conditional

Certification Order, arguing that this Court erred in granting conditional certification of the FLSA

collective action when it (i) found that Plaintiff asserted viable claims under the FLSA and (ii)

declined to follow purportedly controlling precedent from the New York Appellate Division,

Second Department. See Dkt. No. 29. As part of its Motion for Reconsideration, Defendant also

requested that this Court clarify the scope of the collective action; namely, that the collective action

should be limited to Defendant’s hourly non-exempt employees paid on a bi-weekly frequency of

pay at Defendant’s distribution facility at 24 Rock Street in Brooklyn, New York (“the Brooklyn

Facility”).

For the reasons set forth in this Memorandum and Order, Defendant’s Motion for

Reconsideration is GRANTED in part and DENIED in part. This Court declines to vacate its

Conditional Certification Order but finds that, in the absence of a sufficient opposition by Plaintiff,

good cause exists to modify the scope of the collective action. As discussed below, the Court

limits the collective to all former and current hourly non-exempt employees paid on a bi-weekly

frequency of pay at the Brooklyn Facility at any point in time between August 23, 2020 and August

23, 2023.

I. Background

The Court assumes the parties’ familiarity with the facts and refers the parties to Section I

of the Conditional Certification Order for a complete and thorough summation of the background

facts and procedural history relevant to this action. See Cooke, 2024 WL 1230231, at *1-3. For

purposes of addressing Defendant’s Motion for Reconsideration, the relevant class claims in the

Complaint are outlined herein.

Plaintiff asserts that Defendant failed to pay him and other similarly situated employees

minimum wage and overtime for work performed. See Dkt. No. 1, ¶¶ 83-96. Additionally,

Plaintiff asserts that when payment was actually remitted, Defendant’s bi-weekly payment

program contravened the FLSA and the New York Labor Law (“NYLL”) by resulting in untimely

payment. Id. at ¶¶ 40-44. That is because, pursuant to NYLL § 191(a), Plaintiff purports to be a

“manual worker” employed by Defendant in the City of New York—therefore triggering

Plaintiff’s entitlement to pay on a weekly basis. See generally id. at ¶¶ 97-102. Plaintiff asserts

that the harm caused to him included the incurrence of late fees, interest, and “other liabilities

related to non-prompt payment of its wages.” Id. at ¶ 47. On behalf of the collective, Plaintiff

asserts that “[t]here are numerous similarly situated current and former employees of Defendant

who have been similarly under or late paid in violation of the FLSA…” Id. at ¶ 50 (emphasis

added). Put simply by Plaintiff, the violations at issue revolve, in part, around Defendant’s failure

to “pay promptly and completely Plaintiff and the Class minimum wage and overtime wages for

all hours worked greater than forty (40) per week in violation of [the NYLL]). Id. at ¶¶ 94-95

(emphasis added).

A. Plaintiff’s Motion for Conditional Certification

On January 11, 2024, Plaintiff moved for conditional certification of a collective action

under the FLSA. See Dkt. Nos. 18-21. In support, Plaintiff argued that he made the requisite

showing that he and members of the FLSA collective are similarly situated. See Dkt. No. 19.

Specifically, in his brief, Plaintiff identified a common policy that he and other non-exempt

employees were subject to that purportedly violated the FLSA: “failure to pay promptly Plaintiff’s

minimum wage and/or overtime.” Id. at 11 (emphasis in original).1 Plaintiff supported his motion

with testimony of conversations with other non-exempt, hourly employees who confirmed to

Plaintiff that “they, too, were denied prompt payment of both minimum wage and overtime

compensation during the same time periods.” Id.; Dkt. No. 20, at 2.

The crux of Plaintiff’s argument relied on the fact that Plaintiff alleged that he was a

“manual” worker as defined by the NYLL. Dkt. No. 19, at 12. Plaintiff argues that, as a manual

worker, he and others similarly situated are entitled to weekly payments. Id. (citing NYLL §

191(1)(a)). Therefore, Defendant’s biweekly payment schedule was alleged to facially contravene

the weekly payment requirement for manual workers established by the NYLL. As to the FLSA,

Plaintiff argues that “courts have long interpreted [the FLSA] to include a prompt payment

requirement.” Id. at 11 (quoting, inter alia, Rogers v. City of Troy, N.Y., 148 F.3d 52, 56 (2d Cir.

1 Citations to the parties’ memoranda of law are to the ECF-bates numbered pages of those briefs.

1998)). Therefore, given the consistent interpretations of the FLSA and the NYLL in this Circuit,

Plaintiff argued that it was proper to maintain a FLSA collective action on such grounds.

Defendant opposed conditional certification as inappropriate in this case. See generally

Dkt. No. 22. While recognizing that findings on the merits are generally inappropriate at the

conditional certification stage, Defendant noted that a careful analysis of the FLSA claims alleged

by Plaintiff here was necessary to determine whether collective treatment is appropriate. Id. at 6.

Defendant first argued that Plaintiff failed to allege that he was not paid minimum wage or

overtime wages in violation of the FLSA. Id. In support, Defendant pointed to Plaintiff’s own

paystubs to “confirm that he earned well above the applicable minimum wage rate and that he was

paid overtime at the application over rate for all hours worked over 40 in any given week. Id.

(citing Dkt. No. 20-3). Indeed, Defendant asserted that Plaintiff’s sole substantive allegation is in

fact a timely payment claim—rooted in Plaintiff’s classification as a “manual worker.” Id. at 6-7.

Defendant maintained that this allegation is “plainly insufficient” to sustain a prompt payment

claim under the FLSA. Id. at 12.

Defendant also contended that while the FLSA is generally interpreted to include a prompt

payment requirement, it does not specify when “this wage must be paid.” Id. at 7. Indeed,

Defendant argued that Plaintiff should have been required to show that “Defendant missed

payments, unreasonably delayed payments, paid him later than the regular biweekly payroll period,

or otherwise deprived him of minimum wages or overtime pay to which he was entitled.” Id. at 8.

By failing to do so, Defendant argued that Plaintiff “failed to sustain his burden at this stage.” Id.

Stated otherwise, “because the FLSA does not require Plaintiff to be paid weekly, Plaintiff did not

and cannot adequately show that [] Defendant violated the FLSA’s prompt payment requirement

solely by virtue of its implementation of a lawful biweekly payroll schedule.” Id. at 9. Finally,

Defendant asserted that whether Plaintiff was a manual worker required to be paid weekly under

the NYLL (and whether Defendant did pay him weekly) is “irrelevant to the analysis of conditional

certification under the FLSA.”). Id. at 9-10 (emphasis in original).

Additionally, Defendant asserted that Plaintiff cannot maintain his underlying NYLL claim

for untimely payment because the New York Appellate Division, Second Department, recently

confirmed that it does not recognize a private right of action for violations of NYLL § 191(1). Id.

at 15. Relying on Grant v. Glob. Aircraft Dispatch, Inc., 223 A.D.3d 712, 204 N.Y.S.3d 117

(2024) (“Grant”), Defendant argued that the Second Department rejected the reasoning that the

failure to pay wages on a timely basis constitutes an “underpayment” and concluded that the

payment of full wages on a “regular biweekly payday does not constitute a nonpayment

underpayment of wages.” Dkt. No. 22, at 10.

Finally, Defendant argued that Plaintiff failed to establish that he was similarly situated

with the purported collective.

B. The Conditional Certification Order

On March 22, 2024, this Court granted in part Plaintiff’s motion to conditionally certify a

collective class. See generally Cooke, 2024 WL 1230231.

In finding that conditional certification is warranted, this Court found that Plaintiff had

“met his minimal burden of showing that the potential opt-in class members are similarly situated

for the purposes of conditional certification.” Id. at *4. Specifically, this Court recognized that

Plaintiff alleged that “Defendant failed to remit to Plaintiff and all others similarly situated timely

and complete minimum wage and overtime payments for work performed in violation of the

[FLSA] and the [NYLL].” Id. at *1. This Court also held that, as a purported “manual worker” in

New York City, Defendant would have been required to remit payment on a weekly basis by NYLL

191(1)(a). Id. at *5-6.

Therefore, citing to controlling precedent in this Circuit, this Court held that NYLL § 191

permits a manual worker to bring a civil action for the delayed payment of wages—even if the

wages have subsequently been paid. Id. This Court, in its opinion, declined Defendant’s invitation

to analyze whether Plaintiff was in fact a manual worker within the meaning of the NYLL, noting

that such a determination is a merits issue not ripe for adjudication at the collective certification

stage. Id. at *8.

Accordingly, this Court granted conditional certification of “all former and current hourly

workers of Defendant at any point in time between August 23, 2020 and August 23, 2023.” Id. at

*12.

C. Defendant’s Motion for Reconsideration

On April 5, 2024, Defendant filed the instant Motion for Reconsideration of this Court’s

Conditional Certification Order. See generally Dkt. Nos. 29-30.

Defendant argues that its motion should be granted because this Court’s Conditional

Certification Order overlooked a “critical basis for denying conditional certification”—namely,

that “Plaintiff has failed to set forth a viable claim under the FLSA.” Dkt. No. 30 at 6. Defendant

also requests that, should the Court decline to reconsider its decision in its entirety, that the Court

clarify and confirm the scope of the collective and limit it to “hourly non-exempt employees paid

on a bi-weekly frequency of pay at [the Brooklyn Facility].” Id. at 1.

In its motion, Defendant argues that the “Court relies entirely on allegations related to

Plaintiff’s claim that he was a manual worker under the [NYLL] and overlooks the fact the FLSA

‘does not specify when a wage must be paid.’” Id. at 8 (emphasis in original) (citation omitted)).

Defendant notes that while this Court was correct in stating that the merits of a plaintiff’s FLSA

claim should not be evaluated at the first stage of certification, the applicable legal standard still

required Plaintiff to allege a “plausible” violation of law with respect to a similarly situated

collective. Id. Therefore, Defendant argues that “[i]t is entirely appropriate to consider whether

Plaintiff has asserted a viable claim under the FLSA before conditionally certifying a collective

action.” Id. (emphasis in original). Defendant contends that, had that inquiry been undertaken, it

would have been “immediately clear that collective treatment is not appropriate.” Id. at 9.

Next, Defendant argues that it is undisputed that “Defendant paid the entirety of the

collective action class regularly, bi-weekly, without delay, and on its normal paydays.” Id. at 10.

Defendant asserts that there are “no allegations that Defendant missed payments, unreasonably

delayed payments, paid Plaintiff later than the regular biweekly payroll period, or otherwise

deprived him of minimum wages or overtime pay to which he was entitled.” Id. Defendant

appears to argue that Plaintiff fails to allege minimum wage and overtime claims—and instead, is

merely alleging an untimely payment claim.

Further, Defendant argues that Plaintiff’s reliance on the NYLL’s frequency of pay

requirement is unavailing. Defendant contends that Plaintiff offered no authority for the premise

that “an alleged violation of the NYLL constitutes an automatic violation of the FLSA’s ‘prompt

payment’ requirement.” Id. at 13. Defendant argues that Plaintiff’s failure to do so supports the

fact that Plaintiff’s classification is irrelevant under the FLSA. Id. As biweekly pay is permitted

by the FLSA, Defendant maintains that Plaintiff fails to assert a proper wage claim under any

section of the FLSA. Id.

Finally, Defendant renewed its argument that this Court overlooked controlling case law

pertaining to Plaintiff’s underlying NYLL claim. Specifically, Defendant contends that this Court

overlooked a recent decision denying a private right of action for violations of NYLL § 191(1)

(requiring weekly pay for manual workers). Id. at 13-15. Pointing to a footnote in this Court’s

opinion, Defendant asserts that this Court improperly relied on Vega v. CM & Assocs. Constr.

Mgmt., LLC, 175 A.D.3d 1144 (N.Y. App. Div. 2019) (“Vega”) and, as Grant is a Second

Department case, Grant should be controlling by virtue of the Second Department’s “geographical

boundaries.” Id. at 15.

II. Legal Standards

The Second Circuit has described the standard for granting a motion for reconsideration as

“strict.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). “‘[R]econsideration will

generally be denied unless the moving party can point to controlling decisions or data that the court

overlooked—matters, in other words, that might reasonably be expected to alter the conclusion

reached by the court.’” Person v. Mulligan Security Corp., No. 22-CV-2980 (AMD) (LB), 2024

WL 2111522, at *2 (E.D.N.Y. May 10, 2024) (quoting Van Buskirk v. United Grp. of Cos., 935

F.3d 49, 54 (2d Cir. 2019)); see also Local Civ. R. 6.3 (providing that the moving party must “set[

] forth concisely the matters or controlling decisions which counsel believes the [c]ourt has

overlooked”).

Stated differently, to succeed on a motion for reconsideration, the movant must show “‘an

intervening change of controlling law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956

F.2d 1245, 1255 (2d Cir.1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice &

Procedure § 4478 at 790)).

Significantly, “[a] motion for reconsideration is “not a vehicle for relitigating old issues,

presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a

‘second bite at the apple[.]’” Weir v. Montefiore Medical Center, No. 23-CV-4468 (KPF), 2024

WL 2049411, at *2 (S.D.N.Y. May 6, 2024) (quoting Analytical Surveys, Inc. v. Tonga Partners,

L.P., 684 F.3d 36, 52 (2d Cir. 2012)); see also Shearard v. Geithner, No. 09–CV–0963(JS)(ETB),

2010 WL 2243414, at *1 (E.D.N.Y. May 30, 2010) (“Reconsideration is not a proper tool to

repackage and relitigate arguments and issues already considered by the Court in deciding the

original motion.”). The decision of whether to grant or deny a motion for reconsideration is

“within ‘the sound discretion of the district court.’” Premium Sports Inc. v. Connell, No. 10-CV-

3753 (KBF), 2012 WL 2878085, at *1 (S.D.N.Y. July 11, 2012) (quoting Aczel v. Labonia, 584

F.3d 52, 61 (2d Cir. 2009)).

III. Discussion

A. Defendant fails to meet the exacting standards for reconsideration

As a threshold matter, this Court finds that Defendant has failed to meet its burden for

reconsideration. Defendant fails to present the “exceptional circumstances” required to meet its

burden on a motion for reconsideration. Allen v. United Student Aid Funds, Inc., No. 17-CV-8192

(VSB), 2021 WL 1978544, at *3 (S.D.N.Y. May 17, 2021) (explaining that “[a] motion for

reconsideration is neither an occasion for repeating old arguments previously rejected nor an

opportunity for making new arguments that could have been previously advanced”; additionally,

it is not “a time to “advance new facts, issues or arguments not previously presented to the Court.”)

(internal citations and quotation marks omitted). Instead, Defendant both rehashes arguments set

forth in its prior Memorandum of Law in Opposition to Plaintiff’s Motion for Conditional

Certification and also presents wholly new arguments that could have, but were not, previously

advanced.

For example, Defendant’ first argument in favor of reconsideration—that its “pay practices

comply with the FLSA’s prompt payment standard as a matter of law”—is one that Defendant

fully briefed in its opposition to collective certification, see, e.g. Dkt. No. 22, at 11-15; Dkt. No.

30, at 7-11; and one that the Court has already addressed.

Defendant also raises new arguments—such as Defendant’s novel argument that Plaintiff’s

frequency of pay arguments should fail as a matter of law—without excuse as to why these

arguments were not raised previously. These arguments are therefore not cognizable on a motion

for reconsideration. See Novomoskvsk Joint Stock Company “Azot” v. Revson, 95-CV-5399 (JSR),

1999 WL 767325 at *1 (S.D.N.Y. Sept. 28, 1999) ([N]ew arguments ... are not to be considered

[on a motion for reconsideration] unless there is some valid reason they could not have been

previously advanced when the motion was originally argued.”). That is especially true for

Defendant’s argument that “[the] NYLL’s frequency of pay requirements are not read into the

FLSA’s prompt payment requirement.” Dkt. No. 30, at 11-13. Indeed, Defendant already had

the opportunity to advance this argument in its opposition to conditional certification. Dkt. No.

22, at 12-13. On reconsideration, Defendant merely asserts the exact argument but now invites

the Court to review its prior Conditional Certification Order under a standard outlined in a District

of Maine decision, Basinger v. Wal-Mart Stores, Inc., No. 98-334-P-H, 1999 WL 33117106, at

*3–5 (D. Me. Jan. 27, 1999). Dkt. No. 30, at 11-12. Such an invitation hardly qualifies as an

“intervening change in controlling law” (Virgin Atl. Airways, Ltd., 956 F.2d 1245 at 1255) and, in

advising the court to adopt a differing view on “the interpretation of a federal statute,” appears to

be an attempt to advance a new theory that could have been raised in Defendant’s original

briefings.

Accordingly, this Court finds that Defendant has failed to meet its exacting burden on

reconsideration by merely rehashing prior arguments or, in the alternative, advancing new legal

theories that are not cognizable on a motion for reconsideration.

B. Plaintiff asserted plausible claims for untimely payment

But even if, arguendo, Defendant had met its burden on reconsideration, this Court’s

finding that Plaintiff properly alleged at least one policy or practice that runs afoul of the FLSA—

“the practice of failing to remit prompt and timely payment”—remains unchanged. Cooke, 2024

WL 1230231 at *6, Dkt. No. 30, at 7-8.

Defendant argues that Plaintiff (and the Court) were incorrect in asserting that state statutes

may be implicated in qualifying the FLSA’s “prompt payment requirement.” Dkt. No. 30 at 11.

In support, Defendant cites to the aforementioned 1999 opinion from the District of Maine

cautioning courts to be “doubly reluctant” in finding an interplay between federal and state

employment statutes. Id. at 12 (quoting Basinger, 1999 WL 33117106, at *3-5).

The FLSA provides that “[e]very employer shall pay to each of his employees . . . who in

any workweek is engaged in commerce or in the production of goods for commerce . . . not less

than the minimum wage.” Rogers, 148 F.3d at 55 (quoting 29 U.S.C. § 206(b)). The FLSA “does

not specify when this wage must be paid.” Id. (emphasis in original). “Although the FLSA does

not explicitly require that wages be paid on time, the courts have long interpreted the statute to

include a prompt payment requirement.” Id. (citations omitted). While “the FLSA requires wages

to be paid in a timely fashion,” Second Circuit precedent “demonstrate that what constitutes timely

payment must be determined by objective standards . . .” Id. at *57. Such considerations are

intended to reflect the fact that the FLSA “was not designed to codify or perpetuate industry

customs and contracts but to achieve a uniform national policy in terms of wages and hours.” Id.

(quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 741 (1981) (quotations

omitted).

Indeed, “the FLSA sets a national ‘floor’ in terms of working conditions, in order to protect

workers from the substandard wages and excessive hours that might otherwise result from the free

market.” Rogers, 148 F.3d at 57. The FLSA sets federal minimum wage, overtime pay, equal

pay, recordkeeping, and child labor standards for employers (29 U.S.C. §§ 201 et seq.) which can

be “governed by an interplay of the FLSA and the NYLL.” Belizaire v. RAV Investigative & Sec.

Servs. Ltd., 61 F. Supp. 3d 336, 352 (S.D.N.Y. 2014). “Both the FLSA and the NYLL also govern,

in different respects, the timing of payments from an employer to an employee. While the statutory

language of the FLSA does not prescribe any particular payment schedule, courts have consistently

interpreted Section 206(a) of the statute to include a prompt payment requirement.” Id. (citing 29

U.S.C. § 206(a)); see also, e.g., Rogers, 148 F.3d at 57 (“it is clear that the FLSA requires wages

to be paid in a timely fashion”); United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487,

491 (2d Cir.1960) (“While the FLSA does not expressly set forth a requirement of prompt

payment, such a requirement is clearly established by the authorities. . . .”). Finally, under the

FLSA, late wages are considered a form of unpaid wages. See Rigopoulos v. Kervan, 140 F.2d

506, 507 (2d Cir. 1943).

In setting a “national floor,” Congress has empowered states to augment protections

conferred by the FLSA by statute. For example, while the FLSA sets federal minimum wage

standards, “the minimum wage applicable to an employee in New York is governed by an interplay

of the FLSA and the NYLL.” See Belizaire, 61 F. Supp. 3d at 352-353 (explaining that, where

state law conferred greater protection—like a higher minimum wage—state law controlled).

Indeed, a similar arrangement was contemplated by New York’s legislature in devising

Labor Law § 191, whose legislative purpose “is to protect workers who are generally “dependent

upon their wages for sustenance.” Freeland v. Findlay’s Tall Timbers Distribution Ctr., LLC, 681

F. Supp. 3d 58, 73 (W.D.N.Y. 2023) (quoting Sheehy v. Big Flats Community Day, 73 N.Y.2d

629, 543 N.Y.S.2d 18, 541 N.E.2d 18 (1989)). The New York Labor Law has identified “manual

workers” as class of individuals who “shall be paid weekly and not later than seven calendar days

after the end of the week in which the wages are earned.” NYLL § 191 (1)(a)(i). Therefore, where

the FLSA declined to set an exact frequency of pay requirement, the FLSA has allowed states—

like New York—to augment protections where necessary, the latter which tracks the spirit of the

FLSA.

Courts in this Circuit have found defendants to have violated the FLSA by failing to issue

prompt payment pursuant to NYLL § 191. See, e.g., Rosenbaum v. Meir, 658 F. Supp. 3d 140,

147 (E.D.N.Y. 2023) (“This Court recognizes the instant Complaint does not allege overtime

claims in violation of the FLSA but rather contends Defendants violated the [the FLSA] by failing

to issue prompt payment.”); Beh v. Cmty. Care Companions Inc., No. 19-CV-1417 (JLS) (HBS),

2021 WL 3914297, at *4 (W.D.N.Y. Feb. 1, 2021), report and recommendation adopted, 2021

WL 3914320 (W.D.N.Y. June 23, 2021) (“declin[ing] to reject” proposed FLSA untimely payment

claims brought by purported manual workers pursuant to Section 191); see also Anzures v.

Maredin Rest. Corp., No. 22-CV-2798 (EK) (JRC), 2024 WL 1376812, at *15 (E.D.N.Y. Jan. 24,

2024), report and recommendation adopted, 2024 WL 1367963 (E.D.N.Y. Apr. 1, 2024)

(awarding liquidated damages pursuant to NYLL § 191).

Here, at this first stage of conditional certification, Plaintiff has adequately alleged that the

Defendant may be liable under the FLSA’s prompt payment requirement upon a finding that

weekly payment—and not bi-weekly payment—should have been remitted to Plaintiff (and the

putative class). Plaintiff has alleged that his job duties included, but were not limited to, “customer

service, general labor; building maintenance and repair, heavy and light cleaning and material

moving, etc.” Dkt. No. 1, at ¶ 19. Under NYLL § 190(4), “manual worker” means “a mechanic,

workingman or laborer.” More helpfully, the New York Department of Labor has long interpreted

the term to include “employees who spend more than 25 percent of their working time performing

physical labor.” N.Y. Dep’t of Labor Opinion Letter, No. RO-09-0066 (May 21, 2009). By this

criterion, carpentry workers, cooks, wait staff, grocery store employees, janitorial staff, hotel

maids, airport chauffeurs, and pizzeria workers have been found to be “manual workers.” Beh,

2021 WL 3914297, at *3. Whether Plaintiff (and the putative class members) are actually “manual

workers” or whether actual violations of law occurred are merit-based determinations that are

inappropriate at this stage. Singh v. Anmol Food Mart, Inc., No. 22-CV-5475 (RER) (JAM), 2024

WL 308241, at *2 (E.D.N.Y. Jan. 26, 2024) (“When applying this lenient evidentiary standard, a

court evaluates pleadings and affidavits, but does not resolve factual disputes, decide substantive

issues going to the ultimate merits, or make credibility determinations.”).

In support of its contention that “the case law is clear that weekly pay in not required under

the FLSA,” (Dkt. No. 30, at 9) (emphasis in original), Defendant points to its sole authority from

this Circuit in Coley v. Vannguard Urb. Improvement Ass’n, Inc., No. 12-CV-5565 (PKC) (RER),

2016 WL 7217641, at *12 (E.D.N.Y. Dec. 13, 2016) for the premise that the FLSA expressly

permits bi-weekly pay. But a review of Coley fails to clarify its relevance here. In part, Coley

actually held that Defendant was liable for violating the FLSA and the NYLL “by chronically

failing to pay Plaintiffs timely and in full” pursuant to NYLL § 191.

Further, Defendant argues that that “the imputation of the NYLL standard for frequency of

wage payments would run counter” to Congress’ intent for the FLSA “to achieve a uniform

national policy of guaranteeing compensation for all work or employment engaged by employees

governed by [the FLSA].” Dkt. No. 30, at 12. But this argument is unavailing. There is no

indication—from Defendant’s authorities in support or the FLSA itself—that Congress intended

on subjecting every employer and employee governed by the FLSA to a bi-weekly payment

regime.

Accordingly, the Court declines to reconsider its ruling on Plaintiff’s untimely payment

claims.

C. New York Labor Law Section 191(1) confers Plaintiff a private right of action

Defendant argues that this Court overlooked the Second Department’s decision in Grant.

Defendant takes issue with Footnote 3 of this Court’s opinion finding that Plaintiff is entitled to

recover under NYLL 191. See Dkt. No. 30, at 8-9. Defendant argues that Grant is controlling

here as the Second Department covers a similar geographical area as this District. Id. at 14.

In Grant, the Second Department held that the payment of full wages on a regular biweekly

payday does not constitute a “nonpayment” or “underpayment” of wages. Id. In support,

Defendant points to Galante v. Watermark Servs. IV, LLC, No. 23-CV-6227, 2024 WL 989704,

*7 (W.D.N.Y. Mar. 7, 2024) (“Galante”) (agreeing with the Second Department’s decision in

Grant and holding that section 198(1-a) does not provide a private right of action, either express

or implied, for violations of section 191(1)(a)). Therefore, as the Second Department found that

no private right of action exists under NYLL 191(1), Defendant argues that this Court erred in

finding otherwise.

Since Grant was published but before Defendant’s Motion for Reconsideration was filed,

two courts in this District have issued opinions expressly declining to follow Grant. In Levy v.

Endeavor Air Inc., No. 21-CV-4387 (ENV) (JRC), 2024 WL 1422322, at *1 (E.D.N.Y. Mar. 29,

2024), the court denied the defendant’s motion for reconsideration in light of Grant. “In accord

with every other court in this Circuit that had, at that time, considered whether § 191 provides a

private right of action, the [Levy court] applied Vega to find that it did. Id. at *1.

The Levy court reasoned that Grant is “undermined by the statute’s legislative history, and

courts within this Circuit find that history persuasive in declining to follow Grant.” Id. (citing

Zachary v. BG Retail, LLC, No. 22-CV-10521, 2024 WL 554174, at *5 (S.D.N.Y. Feb. 12, 2024)).

The Levy court explained that the “2010 amendments to § 198 ‘intend[ ] to allow employees ‘to

recover the full amount of any underpayments’—an intention best served by recognizing that

‘money has a real time value,’ and thus a late payment is a qualifying underpayment.” Levy, 2024

WL 1422322, at *2 (citing Garcia v. Skechers USA Retail, LLC, No. 23-CV-1055 (PKC) (JAM),

2024 WL 1142316, at *6 (E.D.N.Y. Mar. 15, 2024)). Accordingly, the Levy court was “persuaded

that the New York Court of Appeals would adopt Vega’s holding that §§ 191 and 198 expressly

confer upon employees a private right of action.” Levy, 2024 WL 1422322, at *2.

The Court in Levy also expressly rejected Galante (which Defendant relied on), noting that,

“[w]ith one exception, every court within this Circuit that has confronted the split in appellate

authority has remained persuaded by Vega.” Id. Indeed, “post-Grant federal district courts have

rejected the Grant holding that the absence of explicit reference to ‘late payments’ in § 198—the

enforcement mechanism for article 6 of the NYLL—means that that section contains no express

right of action for § 191 violations, reasoning instead that late payments are underpayments, and

therefore § 198's language encompasses § 191 violations.” Id. (collecting cases).

Moreover, the plain language of § 191 conflicts with the Grant court’s reading that

“[s]ection 198’s enforcement mechanism is not triggered when an employer and manual worker

agree to a biweekly payment schedule.” Zachary, 2024 WL 554174 at *8. NYLL § 191(2)

“provides that ‘[n]o employee shall be required as a condition of employment to accept wages at

periods other than as provided in this section.’” Id. Thus, “[a] judge’s belief that a manual worker

should be able to agree to a different payment schedule, and that such agreement should obviate

an employer’s liability for failing to comply with the law, does not override an overt legislative

judgment to the contrary.” Id.; Garcia, 2024 WL 1142316, at *6 (same); Levy, 2024 WL 1422322,

at *2. In sum, the Levy court found that NYLL § 191 “confers upon employees a private right of

action.” Id. at *2.

Similarly, another court in this District recently declined to follow Grant. See Garcia,

2024 WL 1142316, at *6. The Garcia court acknowledged that “New York courts are currently

split as to whether Section 191 . . . confers a private right of action, and the New York Court of

Appeals has not yet addressed this question.” Id. at 6. Concluding that following Grant would be

inconsistent with the legislative scheme underlying Section 191, the Garcia court also found that

the New York Court of Appeals is likely to adopt the reasoning in Vega. Therefore, the plaintiff’s

Section 191 claim in Garcia was allowed to proceed.

Here, neither party acknowledged the Levy and Garcia decisions, nor the other numerous

S.D.N.Y. and N.D.N.Y. decisions declining to follow Grant (or Galante for that matter). See, e.g.,

Bazinett v. Pregis LLC, No. 1:23-CV-790 (MAD) (ML), 2024 WL 1116287 (N.D.N.Y. Mar. 14,

2024) (“The Court predicts that based on the current legal landscape, the New York Court of

Appeals would accept Vega.”); Urena v. Sonder USA Inc., No. 22 CIV. 7736 (VM), 2024 WL

1333012 (S.D.N.Y. Mar. 28, 2024) (inviting the parties to consider whether their case should be

stayed pending the Court of Appeal’s resolution of the department split); Zachary, 2024 WL

554174 *8 (S.D.N.Y. Feb. 12, 2024) (“Although this Court cannot predict with certainty how the

New York Court of Appeals would rule, the reasoning in Vega and the dissent in Grant persuade

the Court that the Court of Appeals would likely agree with Vega and reject Grant.”); Sarmiento

v. Flagge Contracting Inc., No. 22-CV-9718 (VSB) (JLC), 2024 WL 806137, at *9 (S.D.N.Y. Feb.

27, 2024) (“The Zachary court carefully analyzed the decisions in Vega and Grant and, in agreeing

with Vega, concluded that a late wage claim under Section 191 is privately actionable ‘even if that

right is not expressly codified in the NYLL.’ . . . To the extent it is necessary to reach that question,

I agree with the court’s analysis in Zachary and recommend it be followed here.”) (internal

citations omitted).

This Court sees no valid reason to modify its original ruling or depart from other persuasive

rulings from this District. This Court therefore declines to reconsider its application of Vega to

this instant matter.

D. Scope of the collective class

Defendant requests that the Court clarify and modify the scope of the collective class. Dkt.

No. 30, at 15. The Court’s March 22, 2024 opinion conditionally certified a class composed of

“all former and current hourly workers of Defendant at any point in time between August 23, 2020

and August 23, 2023.” See Cooke, 2024 WL 1230231 at *12. Defendant proposed that notice

should be sent only to Defendant’s hourly non-exempt employees paid on a bi-weekly frequency

of pay at Defendant’s Brooklyn Facility. Dkt. No. 3018 1259, at 15. Defendant asserts that it

maintains a principal place of business in Sarasota with employees in facilities nationwide. Id.

Given that Plaintiff does not “allege that he is similarly situated to any broader group of employees

beyond those located in the Brooklyn facility,” Defendant avers that such a limitation in scope is

warranted. Id.

This Court reconsiders its Conditional Certification Order in this regard. While this Court

invited Plaintiff to opine on this request (Text Order dated April 5, 2024), Plaintiff failed to

sufficiently do so by declining to meaningfully oppose Defendant’s request. See Trinidad, 962 F.

Supp. 2d at 558 (“Although all Pret stores in New York City are owned by the same parent

company, plaintiffs have not demonstrated across all locations a uniform policy of failure to pay

overtime compensation.”).

Finding that Defendant has proffered a compelling reason to limit the scope of the putative

collective class, this Court hereby modifies its earlier ruling to limit the scope of the collective

class to all former and current hourly non-exempt employees paid on a bi-weekly frequency of pay

at the Brooklyn Facility at any point in time between August 23, 2020 and August 23, 2023.

E. Subsequent motion practice

While this Court finds that Defendant’s Motion for Reconsideration fails to meet the

exacting burden set forth in this Circuit, this Court notes that Plaintiff’s Complaint may contain

certain deficiencies that may be cured by an Amended Complaint—especially since it is unclear

whether some of Plaintiff’s claims would survive dispositive motion practice. Additionally, this

Court notes that Defendant declined to avail itself to the opportunity to engage in early dispositive

motion practice by choosing to interpose an Answer (Dkt. No. 11) and is only currently

entertaining the idea of moving pursuant to Fed. R. Civ. P 12(c) (Dkt. No. 30, at n.1). The Court

thus agrees that motion practice may help narrow certain claims ahead of discovery and may

facilitate early resolution.

The Court will address Defendant’s anticipated motion to dismiss (Dkt. No. 33), the

parties’ motion to stay discovery (Dkt. No. 37); and a potential resolution at the May 22, 2024

status conference.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Reconsideration is GRANTED in part

and DENIED in part.

The Court further orders that:

(1) By June 7, 2024, Defendant shall produce to Plaintiff, in computer readable format,

the full names, current home address or last known address, cell phone number, work and personal

email addresses, and dates of employment with job titles of all former and current hourly non-

exempt employees paid on a bi-weekly frequency of pay at the Brooklyn Facility at any point in

time between August 23, 2020 and August 23, 2023.

(2) By May 29, 2024, the parties are to meet and confer in good faith, and by June 7, 2024,

the parties shall file a revised Proposed Notice and consent form that complies with the directives

set forth herein;

(3) By July 1, 2024, Plaintiff or his designated representative shall cause a copy of the

Notice and Consent to Join Form to be disseminated to the covered employees by first class mail,

email, and text message.

Dated: Brooklyn, New York

May 18, 2024 SO ORDERED.

/s/ Joseph A. Marutollo

JOSEPH A. MARUTOLLO

United States Magistrate Judge