The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JEPHTHE TURENNE, on behalf of himself
and all others similarly situated,
MEMORANDUM & ORDER
Plaintiff, 23-CV-3651 (EK)(JAM)
-against-
WIRELESS VISION HOLDINGS, LLC,
Defendant.
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ERIC KOMITEE, United States District Judge:
Plaintiff Jephthe Turenne brings this putative class
action under the New York Labor Law against his former employer,
Wireless Vision Holdings, LLC (“WVH”). WVH operates T-Mobile
retail stores across New York State, including the Brooklyn
locations where Turenne was employed. Turenne asserts claims
for failure to pay timely wages, failure to provide wage
notices, and failure to reimburse his uniform maintenance costs.
As discussed below, the Court has jurisdiction under the Class
Action Fairness Act, 28 U.S.C. § 1332(d).
WVH moves to dismiss Turenne’s pay-frequency and
wage-notice claims. It argues that Turenne lacks Article III
standing and a right of action to bring the former claim, and
that the latter claim is untimely. For the following reasons,
that motion is granted in part and denied in part.
Background
The following facts are drawn from the plaintiff’s
complaint, and are presumed true for the purposes of this order.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
WVH operates T-Mobile retail stores in New York State.
Compl. ¶ 17, ECF No. 1. Turenne worked at WVH’s Flatbush and
Bedford-Stuyvesant locations from February 2016 until November
2018. Compl. ¶ 23. He worked between five and six days each
week, “often” for more than forty hours per week. Id. ¶ 24. In
addition to customer-service duties, Turenne spent more than
twenty-five percent of his time on physical tasks like cleaning
the store, receiving deliveries, unboxing and stocking
merchandise, and shoveling snow off the sidewalk in the winter
months. Id. at ¶¶ 24-25
Turenne was paid “at or near minimum wage” on a bi-
weekly basis during his employment. Id. ¶¶ 26-27. But WVH paid
him late on “more than one occasion.” Id. ¶ 44. Turenne also
alleges that WVH “failed to supply [him] with wage notices”
required under Section 195 of the New York Labor Law. Id. ¶ 66.
He brings his claims on behalf of himself and a putative class
of “[a]ll exempt, hourly employees of Defendant in the State of
New York between the date six years preceding the filing of this
complaint and the date a class is certified in this action.”
Id. ¶ 48. He seeks over $5,000,000 in damages. Id. ¶ 12.
Legal Standard
At the pleading stage, plaintiffs must allege “facts
that affirmatively and plausibly suggest that [they] have
standing to sue.” Carter v. HealtPort Techs., LLC, 822 F.3d 47,
56 (2d Cir. 2016).1 Where “standing is challenged on the basis
of the pleadings, [the court must] accept as true all material
allegations of the complaint, and must construe the complaint in
favor of the complaining party.” W.R. Huff Asset Mgmt. Co., LLC
v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008).
On a motion to dismiss for failure to state a claim,
“the court’s task is to assess the legal feasibility of the
complaint.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir.
2020). In doing so, the court “must take the facts alleged in
the complaint as true, drawing all reasonable inferences in [the
plaintiff’s] favor.” In re NYSE Specialists Sec. Litig., 503
F.3d 89, 91 (2d Cir. 2007). To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts
“are not bound to accept as true a legal conclusion couched as a
factual allegation,” and “[t]hreadbare recitals of the elements
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
Discussion
WVH argues that Turenne’s pay-frequency claim under
Section 191 of the New York Labor Law should be dismissed for
two reasons: first, because he lacks Article III standing to
bring it; and second, because Section 191 does not provide a
private right of action. Def.’s Br. in Supp. of Mot. to Dismiss
(“Def. Mot.”) 13, 17, ECF No. 19. WVH also argues that
Turenne’s wage-notice claim is untimely. Id. at 20.
A. Subject-Matter Jurisdiction under CAFA
Apart from its standing arguments, WVH has not
challenged the Court’s subject-matter jurisdiction.
Nevertheless, the Court must analyze its jurisdiction sua
sponte. E.g., FW / PBS Inc. v. City of Dallas, 493 U.S. 215,
231 (1990). Having done so, the Court concludes it has
jurisdiction over this action under the Class Action Fairness
Act (“CAFA”).
CAFA jurisdiction is appropriate if (1) the putative
class has at least 100 members, (2) “at least one class member
is diverse from at least one defendant,” and (3) the aggregate
amount-in-controversy exceeds $5 million. 2 Newberg &
Rubenstein on Class Actions § 6:14 (6th ed.); see 28 U.S.C.
§ 1332(d). Here, Turenne alleges that there are more than 400
putative class members, and that the aggregate amount-in-
controversy exceeds $5 million.2 Compl. ¶¶ 12, 50. Furthermore,
minimal diversity exists because Turenne is a citizen of New
York, id. ¶ 13, while WVH is an LLC formed under Delaware law
and headquartered in Michigan. Id. ¶¶ 3, 5; see 28 U.S.C.
§ 1332(d)(10) (“[A]n unincorporated association shall be deemed
to be a citizen of the State where it has its principal place of
business and the State under whose laws it is organized.”);
Windward Bora LLC v. Browne, 110 F.4th 120, 127 (2d Cir. 2024)
(an LLC is an unincorporated association for diversity
purposes).
Thus, at least at this stage, Turenne has sufficiently
pleaded facts establishing the Court’s jurisdiction.
B. Turenne’s Pay-Frequency Claim
New York employers must pay “manual workers” weekly
and “not later than seven calendar days after the end of the
week in which the wages are earned.” N.Y. Lab. Law § 191(1)(a).
WVH does not dispute that, because Turenne alleges that he spent
more than twenty-five percent of his time on physical tasks such
as cleaning the store, he is plausibly a “manual worker” under
2 WVH has not disputed Turenne’s allegations as to the amount-in-
controversy, so the Court presumes their sufficiency at this stage. See
Summerville v. Gotham Comedy Found., Inc., 765 F. Supp. 3d 293, 302 (S.D.N.Y.
2025) (when complaint invokes CAFA, “an allegation that the amount in
controversy exceeds $5 million creates a presumption that the amount in
controversy requirement is met”).
New York law. See N.Y. Dep’t of Labor Op. Ltr., No. RO-09-0066
(May 21, 2009); Rankine v. Levi Strauss & Co., 674 F. Supp. 3d
57, 67 (S.D.N.Y. 2023). Instead, they argue that he cannot
bring a pay-frequency claim because he lacks standing and / or
the right of action necessary to do so.
1. Article III Standing
WVH argues that because Turenne eventually received
payment in full, he lacks Article III standing to sue for
delayed wages. Def. Mot. 13. To allege standing, a plaintiff
must plead, among other things, that they “suffered an injury in
fact.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
“Any monetary loss suffered by the plaintiff satisfies this
element; even a small financial loss suffices.” Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016).
WVH’s argument lacks merit. “[T]he late payment of
wages is a concrete harm” that constitutes an injury-in-fact
under Article III. Caul v. Petco Animal Supplies, Inc., No. 20-
CV-3534 (RPK), 2021 WL 4407856, at *4 (E.D.N.Y. Sept. 27, 2021),
accord Rankine, 674 F. Supp. 3d at 63. It is a “basic
princip[le] of economics and accounting that a dollar today is
worth more than a dollar tomorrow.” Porsch v. LLR, Inc., 380 F.
Supp. 3d 418, 424 (S.D.N.Y. 2019) (quoting Atlantic Mut. Ins.
Co. v. Comm’nr, 523 U.S. 382, 383 (1998)). Thus, by temporarily
depriving Turenne of his wages, WVH plausibly deprived him of
the time value of those wages. Id.; see also Habitat Educ. Ctr.
v. U.S. Forest Serv., 607 F.3d 453, 457 (7th Cir. 2010). That
minimal monetary injury is sufficient to allege Article III
standing. Carter, 822 F.3d at 55.
2. Private Right of Action
WVH next argues that Section 191 only provides a
private right of action for wage “underpayments,” rather than
wage payment delays. Def. Mot. 17. This argument is also
unavailing, for similar reasons.
The New York Court of Appeals has yet to opine on the
scope of Section 191’s right of action. “Absent a clear
directive from a state’s highest court, federal authorities must
apply what they find to be the state law after giving proper
regard to the relevant rulings of other courts of the State.”
Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 497 (2d Cir.
2020). In doing so, federal courts are “bound to apply the law
as interpreted by a state’s intermediate appellate courts unless
there is persuasive evidence that the state’s highest court
would reach a different conclusion.” V.S. v. Muhammad, 595 F.3d
426, 432 (2d Cir. 2010). “When there is a split between [New
York] appellate departments,” the task remains the same — to
“determine how the New York Court of Appeals would decide the
issue.” Pacho v. Enterprise Rent-A-Car Co., 572 F. Supp. 2d
341, 346 (S.D.N.Y. 2008).
Section 198(1-a) of the New York Labor Law provides
that “[i]n any action instituted in the courts upon a wage claim
by an employee . . . in which the employee prevails, the court
shall allow such employee to recover the full amount of any
underpayment.” N.Y. Lab. Law § 198(1-a) (emphasis added). In
Vega v. CM & Associates Construction Management, LLC, the First
Department held that Section 198(1-a) “expressly provides a
private right of action for a violation of Labor Law Section
191,” and that regardless, such a right “may be implied.” 175
A.D.3d 1144, 1146 (1st Dep’t 2019). It reasoned that “the term
underpayment encompasses the instances where an employer
violates the frequency requirements” of Section 191(1) even
where it “pays all wages due,” because “underpay is defined as
‘to pay less than what is normal or required.’” Id. at 1145.
“The moment that an employer fails to pay wages in compliance
with [S]ection 191(1)(a), the employer pays less than what is
required.” Id.
Since Vega, district courts in this circuit have
adopted its reasoning. See Caul, 2021 WL 4407856, at *4
(collecting cases). In 2024, however, the Second Department
upset that equilibrium by declining to follow Vega. Grant v.
Glob. Aircraft Dispatch, Inc., 223 A.D.3d 712, 715 (2d Dep’t
2024). The Grant court reasoned instead that the “plain
language of [Section] 198(1-a) supports the conclusion that this
statute is addressed to nonpayment and underpayment of wages, as
distinct from the frequency of payment.” Id. Since the Grant-
Vega split, district courts in this circuit have overwhelmingly
sided with Vega. Compare Covington v. Childtime Childcare,
Inc., No. 23-CV-710, 2024 WL 2923702, at *4 (N.D.N.Y. June 10,
2024) (agreeing with Vega and collecting similar cases), with
Galante v. Watermark Servs. IV, LLC, No. 23-CV-6227, 2024 WL
989704, at *7 (W.D.N.Y. Mar. 7, 2024) (agreeing with Grant).
Vega remains persuasive. Grant holds that Section
198(1-a)’s lack of explicit reference to “frequency of payment”
means it provides no private right of action for late payments.
223 A.D.3d at 715. But there is little principled distinction
between a payment that is too little and one that is too late.
Because of the time-value of money, “an employee is underpaid
within the meaning of Section 198 each time her employer is
required, under Section 191, to pay her for one week of wages
and instead pays her nothing on that date.” Zachary v. BG
Retail, LLC, 716 F. Supp. 3d 339, 350 (S.D.N.Y. 2024). The
payment, when the employee eventually receives it, is worth less
than it would have been worth had the employee been paid on
time. So, an employee that has been paid late has necessarily
been underpaid.
The Court is therefore persuaded that the New York
Court of Appeals would agree with Vega that late payments in
violation of Section 191 are underpayments within the meaning of
Section 198, and that those late payments are therefore
privately actionable.3
C. Turenne’s Wage-Notice Claim
Turenne also asserts that WVH “willfully failed to
supply [him] the [the] wage notices . . . required by” New York
Labor Law Section 195(1). Compl. ¶¶ 65-67. That Section
requires an employer to “provide his or her employees . . . at
the time of hiring, a notice containing” information including
their rate of pay, any allowances, the name of the employer, the
telephone number of the employer, and any “other information as
the commissioner deems material and necessary.” N.Y. Lab. Law
§ 195(1). Turenne alleges that he never received any such
notice and seeks “statutory penalties of fifty dollars [for]
each day” that WVH failed to provide wage notices, up to $5,000.
Id. ¶ 68.
3 The Court is also persuaded that Section 198 implies a right of action
for late payments. See Zachary, 716 F. Supp. 3d at 347. The Court of
Appeals will find an implied right of action when (i) “the plaintiff is one
of the class for whose particular benefit the statute was enacted”; (ii)
“recognition of a private right of action would promote the legislative
purpose”; and (iii) creation of such a right would be consistent with the
legislative scheme.” Konkur v. Utica Acad. of Sci. Charter Sch., 185 N.E.3d
483, 485 (N.Y. 2022). The NYLL was enacted “to protect workers who are
generally dependent upon their wages for sustenance.” Vega, 175 A.D.3d at
1146. Allowing those same workers to bring suits to protect their rights is
consistent with the overall legislative scheme, which “explicitly provides
that individuals may bring suit against an employer for violations of the
labor laws, even if the Commissioner chooses not to do so.” Id. at 1146-47.
Turenne has not plausibly alleged Article III standing
to bring this claim. When a law authorizes statutory damages
for an “informational injury,” a plaintiff must identify
“downstream consequences from failing to receive the required
information” to allege Article III standing. TransUnion LLC v.
Ramirez, 594 U.S. 413, 442 (2021). Here, Turenne alleges an
informational injury — that he did not receive wage notices.
Compl. ¶ 68. He alleges no “downstream” injury that resulted
from this non-receipt, and seeks only statutory damages.
TransUnion, 594 U.S. at 442. An “informational injury that
causes no adverse effects cannot satisfy Article III.” Id.
Indeed, district courts in this circuit have consistently
dismissed similar claims on standing grounds. See, e.g., Neor
v. Acacia Network, Inc., No. 22-CV-4814, 2023 WL 1797267, at *4
(S.D.N.Y. Feb. 7, 2023) (plaintiffs lacked standing “because
they fail[ed] to demonstrate how the lack of accurate wage
notices and statements led to either a tangible injury or
something akin to a traditional cause of action”); Sevilla v.
House of Salads One LLC, No. 20-CV-6072, 2022 WL 954740, at *7
(E.D.N.Y. Mar. 30, 2022) (same).
In sum, Turenne lacks standing to bring his
wage-notice claim, and that claim is accordingly dismissed
without prejudice.4
Conclusion
For these reasons, the defendant’s motion to dismiss
is granted as to Turenne’s wage-notice claim and denied as to
his pay-frequency claim. The parties are referred to Judge
Marutollo for pretrial supervision.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: September 25, 2025
Brooklyn, New York
4 As WVH notes — and as Turenne does not contest — this claim is also
time-barred. Def. Mot. 20. The relevant statute of limitations is six
years, N.Y. Lab. Law §§ 198(3), and Section 195(1) violations occur “at the
time of hiring.” Id. § 195(1)(a); see Pest v. Bridal Works of N.Y., Inc.,
268 F. Supp. 3d 413, 434 (E.D.N.Y. 2017). Turenne was initially hired in
February 2016, Compl. ¶ 23, and he filed this action on May 16, 2023. See
generally Compl. Because this gap is more than six years, his wage-notice
claim is time-barred.