# Brown v. Tomra Metro, LLC > New York Supreme Court, Bronx County · March 22, 2019 · 2019 NY Slip Op 35240(U) URL: https://www.frixlaw.com/law-library/cases/11063329 ## Case - **Court:** New York Supreme Court, Bronx County - **Decided:** March 22, 2019 - **Citations:** 2019 NY Slip Op 35240(U) - **Precedential status:** Unpublished - **Opinion:** Opinion by Lucindo Suarez - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11063329 ## Opinion text 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 Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. 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 1 of 4 [* 1] 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). 2 of 4 [* 2] FILED: BRONX COUNTY CLERK 03/29/2019 04:21 PM INDEX NO. 32781/2018E NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 03/29/2019 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). 2 3 of 4 [* 3] 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. . 3 4 of 4 [* 4] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11063329. Public record. Not legal advice.