The opinion
Brown v Tomra Metro, LLC
2019 NY Slip Op 35240(U)
March 22, 2019
Supreme Court, Bronx County
Docket Number: Index No. 32781/2018
Judge: Lucindo Suarez
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FILED: BRONX COUNTY CLERK 03/29/2019 04:21 PM INDEX NO. 32781/2018E
NYSCEF DOC. NO. 20 Mtn. Seq. # I RECEIVED NYSCEF: 03/29/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRO X: PART 19
THOMAS BROWN, JEREMY BROWN,
RAFAEL AZCONA and WALDYS HERNAN Z, Index No.: 32781/2018
on behalf of themselves and all other similarly sit....
u"-'
a ""'e...,_.....-
Plaintiffs,
- against - DECISION and ORDER
TOMRA METRO. LLC.
Defendant.
PAPERS NUMBERED
Defendant's Notice of Motion, Affirmation in Support, Memorandum 1, 2, 3, 4
bflaw in Support, Exhibits
Plaintiffs' Memorandum of Law in Opposition, Declaration of 5, 6, 7
Andrew Jordan, Esq ., Exhibits
Defendanf s Reply Memorandum 8
Upon the enumerated papers, Defendant's motion for a partial dismissal is granted in accordance
with the annexed decision and order.
Dated: 3/22/2019
0 SUAREZ, J.S.C.
LUClNDO SUAREZ, J.S.C.
Check one: Motion is: Check if appropriate:
□ Case Disposed in Entirety CiJ Granted □ GIP □ Schedule Appearance □ Settle Order
CiJ Case Still Active □ Denied □ Other □ Fiduciary Appointment □ Submit Order
□ Referee Appointment
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FILED: BRONX COUNTY CLERK 03/29/2019 04:21 PM INDEX NO. 32781/2018E
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 03/29/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: PART 19
THOMAS BROWN, JEREMY BROWN,
RAFAEL AZCONA and WALDYS HERNANDEZ Index No.: 32781 /20 18
on behalf of themselves and all other similarly situated,
Plaintiffs
- against - DECISION and ORDER
TOMRA METRO, LLC
Defendant.
PRESE T: Hon. Lucinda Suarez
The issue in Defendant's motion to dismiss is whether NYLL § 198( 1-d) shall be
construed as a 'penalty" under CPLR §901 (b ), and if so whether it will bar Plaintiffs class
action claims under its second and fourth causes of action. The court finds that YLL § 198(1 -d)
for purposes of CPLR §90l(b) is a penalty therefore, requiring a dismissal of Plaintiffs' second
and fourth causes of action.
Under YLL § 198(1-d), if any employee is not provided a statement or statements as
required b YLL § 195(3) he/she shall recover in a civil action damages of $250.00 for each
work day that the violations occuned or continue to occur, but not to exceed a total of $5,000.00
together with costs and reasonable attorney's fees.
Pursuant to CPLR §90l(b), "unless a statute creating or imposing a penaJty, or a
minimum measure of recovery specifically authorizes the recovery thereof in a class action an
action to recover a penalty, or minimum measure ofrecovery created or imposed by statute may
not be maintained as a class action. " Downing v. Fir I Lenox Terrace Assoc. , 107 A.D.3d 86, 965
N.Y.S.2d 9 (1st Dep't 2013).
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The Court of Appeals has held although it never construed the term "penalty" within the
meaning of CPLR §90 1(b) it has articulated various rules regarding the identification of
penalties in other contexts. Sperry v. Crompton Otp.. 8 .Y.3d 204,863 N.E.2d 1012, 831
N.Y.S.2d 760 (2 007). It further pro ided that where a stanite expressly denominates an
enhanced damages provision to be compensatory in nature, it will not be deemed a penalty. Id.
Furthem1ore, the Court of Appeals have found that when used in the context of statute of
limitations, "the words penalty or forfeiture ... refer to ornething imposed in a puniti ve way for
an infraction of a public law and do not include a liability created for the purpose of redressing a
private injw-y even though the wrongful act be a public wrong and punishable as such. Id. ; see
also Sicola v. Prudential Sav. Bank of Brooklyn, N. Y , 5 .Y.2d 254, 258, 157 .E.2d 284, 184
N. Y.S.2d l 00 (1959).
Here, Plaintiffs commenced thi s class action alleging several claims under the New York
Labor Law and its regul ations fo r Defendant's purported failure to pay proper wages overtime
payments, and to provide accurate wage statements. Pl aintiffs in their second and fourth causes
of action are seeking reasonable attorney s fees, cost and injunctive and declaratory relief as
provided b NYLL § I 98(1-d). Plaintiffs contend that YLL§ 198( 1-d) provides olely for
damages not a penalty for Defendant' s failure to provide accurate wage statements. However,
their arguments are unavailing.
Gleaming from the lan guage of YLL§ 198( 1-d) which provides: " [o]n behalf of any
employee not provided a statement as required by NYLL § 195(3), the commissioner may bring
any lega l action necessary ... in addition to any other remedies and penalties otherwise available
under thi article ... " evinces the legislators ' intent that this stanite was to be construed as a
penalty. (empha is added).
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FILED: BRONX COUNTY CLERK 03/29/2019 04:21 PM INDEX NO. 32781/2018E
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 03/29/2019
Moreover NYLL §198(1-d) is not analogous to the statutes analyzed by the Court of
Appeals in Sperry and Sicola. There the court found that a statute that expressly provides an
enhanced damages provision to be compensatory in nature or when the word "penalty" is used in
the context of statute oflimitations will not be deemed a penalty.
Here however, there is no explicit dictate by the legislators or in the legislative intent of
YLL § 198( 1-d) that said statute is compensatory in nature. Further, unlike the assertion of a
statute of limitations defense where penalty" is meant to address an infraction of a public law
thi s statute gauging from the legislative intent was specifically created for the purpose of
redressing a private injury namely wage theft prevention by penalizing employers who engage in
such prohibited business practices. See 1997 N. Y. ALS 605 1997 .Y. LAWS 605 1997 N. Y.
S.N. 5071. Likewise said statute does not authorize a class action to recover a penalty.
Therefore, this court finds that that NYLL § l 98(1 -d) in the context of CPLR §90 I (b)
shall be construed as a penalty" requiring a dismissal of Plaintiffs' second and fourth causes of
action.
Accordingly it is
ORDERED that Defendant' s motion for a partial dismissal is granted; and it is further
ORDERED that Plaintiffs' second and fourth causes of action in its amended complaint
are dismissed · and it is further
ORDERED, that the Clerk of the Court is directed to dismiss Plaintiffs' second and
fourth causes of action in favor of Defendant.
This constitutes the decision and order of the court.
Dated: March 22 2019
Lucmdo Suarez J.S.C.
LUCINDO UAREZ J.S. .
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