Opinion

Birthwright v. Advance Stores Company, Inc.

Court
District Court, E.D. New York
Filed
Jun 27, 2024
Cited by
0 cases
Authority
More cited than 31.6%

“A federal court sitting in diversity has to predict how the state court would resolve an ambiguity in state law.”

How later courts described this case

  • “A federal court sitting in diversity has to predict how the state court would resolve an ambiguity in state law.”
  • “We think this case is in that zone in which federal courts must do their best to guess what the highest state court will do.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT 12:04 pm, Jun  27, 2024

EASTERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

-------------------------------------------------------------X

EASTERN DISTRICT OF NEW YORK

HUGH BIRTHWRIGHT, individually and on

LONG ISLAND OFFICE

behalf of all others similarly situated,

MEMORANDUM OF

Plaintiff, DECISION AND ORDER

- against - Civil Action

No. 22-593 (GRB)(ST)

ADVANCE STORES COMPANY, INC.,

d/b/a ADVANCE AUTO PARTS,

Defendant.

-------------------------------------------------------------X

GARY R. BROWN, United States District Judge:

In this putative class action alleging a single claim for failure to timely pay wages pursuant

to New York Labor Law (“NYLL”) § 191, defendant moves for reconsideration and judgment on

the pleadings. For the following reasons, defendant’s motion is DENIED.

Background

The factual background and procedural history of the matter are set forth in Birthwright v.

Advance Stores Co., Inc., No. CV 22-0593 (GRB)(ST), 2023 WL 5718633, at *1 (E.D.N.Y. Sept.

5, 2023) (“Birthwright I”), familiarity with which is assumed and incorporated herein.

The instant motion seeks reconsideration of Birthright I after a change in the legal

landscape, to wit: the Second Department’s decision in Grant v. Glob. Aircraft Dispatch, Inc., 223

A.D.3d 712, 719 (2d Dep’t 2024), which held that “[New York] Labor Law § 198 does not

expressly provide for a private right of action to recover liquidated damages, prejudgment interest,

and attorneys’ fees where a manual worker is paid all of his or her wages biweekly, rather than

weekly, in violation of Labor Law § 191(1)(a).” Prior to Grant, this Court—and many courts in

this Circuit—relied on the First Department’s decision in Vega v. CM & Assocs. Constr. Mgmt.,

LLC, 175 A.D.3d 1144 (1st Dep’t 2019) in holding that a plaintiff may proceed under NYLL §

198 when he or she is paid biweekly instead of weekly, as required by § 191. See Birthwright I,

2023 WL 5718633, at *3 (collecting cases). Since there are now contradicting intermediate

appellate decisions among the state courts, this Court is tasked with the duty of predicting how the

New York Court of Appeals would decide the issue. See Michalski v. Home Depot, Inc., 225 F.3d

113, 116 (2d Cir. 2000) (“A federal court sitting in diversity has to predict how the state court

would resolve an ambiguity in state law.”); Cooper v. Am. Airlines, 149 F.2d 355, 359 (2d Cir.

1945) (“We think this case is in that zone in which federal courts must do their best to guess what

the highest state court will do.”).

This opinion follows.

Discussion

Standard of Review

Motions for judgment on the pleadings are decided under the well-established standard of

review for motions to dismiss, Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir.

2021) (citation omitted), as discussed in Toure v. Air France, No. 21-CV-1645 (GRB)(ST), 2022

WL 4079592, at *1 (E.D.N.Y. Sept. 6, 2022). Defendant also frames this motion as one for

reconsideration; the standard of review for such matters is discussed in In re 21st Birthday Denials

of Special Immigrant Juv. Status Applications by USCIS, No. 22-CV-1926 (GRB), 2023 WL

3949736, at *3 (E.D.N.Y. Feb. 10, 2023).

Private Right of Action Under NYLL § 191

Defendant argues that in light of the recent Second Department decision in Grant, this

Court should vacate its earlier decision in Birthwright I and find that plaintiff has no private right

of action under NYLL § 191. However, Grant merits no such outcome. “With one exception,

every court within this Circuit that has confronted the split in appellate authority has remained

persuaded by Vega.” Levy v. Endeavor Air Inc., No. 21-CV-4387 (ENV)(JRC), 2024 WL

1422322, at *2 (E.D.N.Y. Mar. 29, 2024) (collecting cases); see also Covington v. Childtime

Childcare, Inc., No. 23-CV-710 (BKS)(MJK), 2024 WL 2923702, at *4 (N.D.N.Y. June 10, 2024)

(same). For example, in a well-reasoned and thorough decision, Judge Vincent L. Briccetti

addressed largely the same arguments defendant raises here and ultimately rejected those claims.

See Zachary v. BG Retail, LLC, No. 22-CV-10521 (VB), 2024 WL 554174, at *9 (S.D.N.Y. Feb.

12, 2024). Additionally, courts in this district have followed suit. See, e.g., Levy, 2024 WL

1422322, at *2 (“Accordingly, the Court is 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.”); Garcia v. Skechers USA Retail, LLC, No. 23-CV-1055 (PKC)(JAM), 2024 WL 1142316,

at *7 (E.D.N.Y. Mar. 15, 2024) (“Accordingly, the Court concludes that the New York Court of

Appeals is likely to adopt Vega’s reasoning. As such, the Court finds that NYLL §§ 191 and 198

provide for a private right of action, and Plaintiff's Section 191 claim may proceed.”).

While acknowledging the split among the Appellate Divisions and the lack of clear

guidance from the Court of Appeals, this Court ultimately agrees with the detailed and persuasive

reasonings set forth in Zachary, Garcia, Levy, and others. Therefore, this Court concludes that the

New York Court of Appeals would agree with the holding of Vega and find that NYLL §§ 191

and 198 appear to provide for a private right of action.1

1 Article 6, Section 3(b)(9) of the New York State Constitution prevents this Court from certifying an unresolved

question of state law to the New York Court of Appeals, limiting such certifications to federal courts of appeals, the

U.S. Supreme Court, and appellate courts of last resort. See also N.Y. COMP. CODES R. & REGS. tit. 22, § 500.27(1).

New York’s rule of disallowing certification by district courts runs contrary to the majority of states. See Advisory

Group to the New York State and Federal Judicial Council, Practice Handbook on Certification of State Law

Questions by the United State Court of Appeals for the Second Circuit to the New York State Court of Appeals, at 4

n.2 (3d ed. 2016) (accessed at http://www.ca2.uscourts.gov/docs/Third% 20Edition% 20of% 20Certification% 20Han

dbook.pdf) [https://perma.cc/B9U4-CRKF]. Considering the sweeping ramifications of the issue presented herein—

and judicial efficiency, consistency, and comity—the exclusion of federal district courts from this procedure seems

ill-advised.

Conclusion

Based on the foregoing, defendant’s motion is DENIED. The parties are directed to

proceed with discovery with the assigned Magistrate Judge.

SO ORDERED.

Dated: June 27, 2024

Central Islip, New York

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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