| Ackerman v New York Hosp. Med. Ctr. of Queens |
| 2015 NY Slip Op 02920 [127 AD3d 794] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1](April 8, 2015)
| Robert Ackerman, on Behalf of Himself and All OthersSimilarly Situated, Respondent, v New York Hospital Medical Center ofQueens, Appellant. |
Nixon Peabody, LLP, Jericho, N.Y. (Stephen J. Jones, Tara E. Daub, and Todd R.Shinaman of counsel), for appellant.
Faruqi & Faruqi, LLP, New York, N.Y. (Adam Gonnelli of counsel), forrespondent.
In a putative class action, inter alia, to recover damages pursuant to Labor Lawarticle 6, the defendant appeals from so much of an order of the Supreme Court, QueensCounty (Sampson, J.), entered April 17, 2014, as denied those branches of its motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the first and third causes of actionand the class action allegations of the complaint for failure to state a cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was a paramedic employed by the defendant New York HospitalMedical Center of Queens (hereinafter the Hospital). The plaintiff commenced thisputative class action on behalf of himself and a proposed class composed of otheremployees of the Hospital. The complaint alleged that the Hospital determined theplaintiff's wages on the basis of time, and that the timekeeping system utilized by theHospital rounded down to the nearest quarter-hour when employees worked past theirscheduled shift. The complaint further alleged that the Hospital's system never roundedup, only down, and that, pursuant to this policy, the Hospital, in violation of Labor Lawarticle 6, had withheld wages and overtime that the plaintiff had earned.
The Hospital moved pursuant to CPLR 3211 (a) (7) to dismiss, inter alia, the firstand third causes of action, and the class action allegations of the complaint for failure tostate a cause of action. In an order dated April 17, 2014, the Supreme Court, among otherthings, denied those branches of the Hospital's motion. The Hospital appeals. We affirmthe order insofar as appealed from.
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), thecourt must accept the facts as alleged in the complaint as true, accord the plaintiff thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007];Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Paolicelli v Fieldbridge Assoc., LLC, 120 AD3d 643, 644[2014]).
"Article 6 of the Labor Law sets forth a comprehensive set of statutory provisionsenacted to strengthen and clarify the rights of employees to the payment of wages"(Truelove v Northeast Capital & Advisory, 95 NY2d 220, 223 [2000];see Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457, 461 [1993]). Section 190of the Labor Law defines the term "wages" as "the earnings of an employee for labor orservices rendered, regardless of whether the amount of earnings is determined on a time,piece, commission or other basis" (Labor Law § 190 [1]). "Section 193prohibits an employer from making 'any deduction from the wages of an employee'unless permitted by law or authorized by the employee for certain payments made for theemployee's benefit" (Ryan vKellogg Partners Inst. Servs., 19 NY3d 1, 16 [2012], quoting Labor Law§ 193 [1] [a], [b]; see Matter of Hudacs v Frito-Lay, Inc., 90 NY2d342, 346-347 [1997]; Gennes vYellow Book of N.Y., Inc., 23 AD3d 520, 521 [2005]).
Here, the complaint alleged that the plaintiff was an employee of the Hospital, andthat his wages were determined on the basis of time (see Labor Law§ 190 [1]). The complaint further alleged that portions of the wages andovertime compensation that he had earned were improperly withheld by the Hospital inviolation of the Labor Law (see Labor Law § 193 [1]). Accordingly,the complaint adequately set forth causes of action to recover unpaid wages and overtimecompensation withheld from the plaintiff (see V. Groppa Pools, Inc. v Massello, 106 AD3d 723, 724[2013]; Jacobs v Macy's E., 262 AD2d 607, 608-609 [1999]; see also Konidaris v AeneasCapital Mgt., LP, 8 AD3d 244, 244 [2004]). Contrary to the Hospital'scontention, the first and third causes of action were "sufficiently particular to give thecourt and parties notice of the transactions, occurrences, or series of transactions oroccurrences, intended to be proved and the material elements of each cause of action"(CPLR 3013; see generally Taub v Amana Imports, 140 AD2d 687, 689[1988]).
Furthermore, the complaint included factual allegations addressing each of the fiveprerequisites to class certification (see CPLR 901 [a]). Accordingly, the classaction allegations in the complaint were adequately pleaded (see CPLR 901 [a];Bernstein v Kelso & Co., 231 AD2d 314, 323 [1997]). Moreover, contraryto the Hospital's contention, the class action allegations were set forth in the complaintwith sufficient particularity (see CPLR 3013; see generally Taub v AmanaImports, 140 AD2d at 689).
To the extent that the Hospital contends that the class action allegations should bedismissed pursuant to CPLR 3211 (a) (7) on the ground that the plaintiff failed toactually demonstrate the prerequisites for class certification enumerated under CPLR 901(a), that contention is without merit (see Bernstein v Kelso & Co., 231AD2d at 323). "Pursuant to CPLR 902, a motion to determine whether a class action maybe maintained is to be made within 60 days after the time to serve the responsivepleading has expired" (id. at 323; see CPLR 902). Here, the Hospital'smotion pursuant to CPLR 3211 (a) (7) was made prior to the service of the answer and,thus, the issue of whether class certification should or should not be granted is notproperly raised in the context of such a motion (see Negrin v Norwest Mtge., 293AD2d 726, 727 [2002]; Bernstein v Kelso & Co., 231 AD2d at 323). Rivera,J.P., Chambers, Miller and Duffy, JJ., concur.