Opinion
17321 Index No. 158218/18 Case No. 2022–01412
02-14-2023
Garrado ODIGIE, Plaintiff–Appellant, v. GATEWAY SECURITY GUARD SERVICES, INC. et al., Defendants–Respondents.
White & Case, LLP, New York (Gabriella E. Pace, III of counsel), for appellant.
White & Case, LLP, New York (Gabriella E. Pace, III of counsel), for appellant.
Manzanet–Daniels, J.P., Kapnick, Kern, Singh, Scarpulla, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 22, 2022, which, to the extent appealed from, denied plaintiff's motion for a default judgment against all defendants on his claims for unpaid wages as a third-party beneficiary, unpaid vacation time, and damages based on defendants’ failure to provide wage statements and a notice of pay rate, and dismissed the complaint as against individual defendants Peter Eromosele and Monday Eromosele, unanimously reversed, on the law, without costs, the complaint reinstated as against the individual defendants, and plaintiff's motion granted on liability as to these additional claims against all defendants, with damages to be determined after the assessment ordered by the Supreme Court.
Supreme Court should have allowed the action to proceed as against the individual defendants. Plaintiff alleged that the individual defendants shared management responsibilities for defendant Gateway Security Guard Services, Inc., discussed and determined employees’ shift assignments, and distributed wage statements and paychecks. These undisputed allegations are sufficient to establish that the individual defendants were "employers" under the Labor Law (see Bonito v. Avalon Partners, Inc., 106 A.D.3d 625, 626, 967 N.Y.S.2d 19 [1st Dept. 2013] ). In addition, the factual allegations contained in plaintiff's affidavit under CPLR 3215(f) are sufficient to support the claims against the individual defendants (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ).
Furthermore, plaintiff alleges facts sufficient to state a cause of action for unpaid wages as a third-party beneficiary to the contract between Gateway and Heritage Health and Housing, where he was assigned as a security guard. Plaintiff asserted the existence of a valid contract, that the minimum wage provision in the contract was intended for the benefit of him and the other security guards, and that the benefit was immediate rather than incidental (see Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786, 811 N.Y.S.2d 294, 844 N.E.2d 748 [2006] ; Wroble v. Shaw Envtl. & Infrastructure Eng'g of N.Y., P.C., 166 A.D.3d 520, 521, 88 N.Y.S.3d 21 [1st Dept. 2018] ). Because plaintiff did not have the benefit of discovery, his affidavit, which provides firsthand confirmation of the alleged facts, is sufficient to state a cause of action (see Whittemore v. Yeo, 117 A.D.3d 544, 545, 986 N.Y.S.2d 69 [1st Dept. 2014] ).
Plaintiff also alleged facts sufficient to state a viable claim for unpaid vacation time, as he alleged that defendants had assured him that he would be paid for this time, and that he relied on those assurances in continuing to work for defendants (see Andruzzi v. County of Nassau, 34 A.D.3d 607, 608, 826 N.Y.S.2d 324 [2d Dept. 2006] ). Defendants failed to either rebut these allegations beyond their initial answer or respond to plaintiff's discovery requests, thus plaintiff is entitled to judgment on this claim (see Al Fayed v. Barak, 39 A.D.3d 371, 372, 833 N.Y.S.2d 500 [1st Dept. 2007] ). Finally, plaintiff alleged sufficient facts to support his claim for damages under Labor Law §§ 198(1–b) and (1–d), based on defendants’ failure to provide him with a notice of pay rate upon hiring or accurate wage statements reflecting his overtime hours at Heritage Health and Housing. As with the claim regarding plaintiff's vacation time, defendants failed to rebut these allegations or respond to discovery requests, and plaintiff is therefore entitled to judgment on these claims (see Al Fayed, 39 A.D.3d at 372, 833 N.Y.S.2d 500 ). As to the amount of damages, plaintiff is entitled to the statutory maximum amount set forth in Labor Law § 198 in 2011, before it was amended in 2015 (see Labor Law § 195[1][a] and [3] ).