Castillo v Fresh Dining Concepts LLC 2025 NY Slip Op 31264(U) April 11, 2025 Supreme Court, New York County Docket Number: Index No. 160985/2023 Judge: Lyle E. Frank 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: NEW YORK COUNTY CLERK 04/11/2025 04:48 PM INDEX NO. 160985/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/11/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 160985/2023 ALISIA CASTILLO MOTION DATE 09/20/2024 Plaintiff, MOTION SEQ. NO. 002 -v- FRESH DINING CONCEPTS LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 were read on this motion to/for DISMISS .
This is a class action lawsuit brought by plaintiff and on behalf of all other non-exempt
hourly paid employees (“Class”) who were or are employed by Fresh Dining Concepts LLC
(“Defendant”). The Court previously granted dismissal of the First, Fifth and Seventh causes of
action, but gave plaintiff leave to amend. Plaintiff amended those causes of action. Defendant
now moves pursuant to CPLR § 3211(a)(7) to dismiss the amended First, Fifth, and Seventh
Causes of Action in the Amended Complaint. Plaintiff opposes the motion. For the reasons set
forth below, the motion is granted in part and denied in part.1
Factual Background2
Plaintiff Alisia Castillo’s complaint alleges she is a former “fast food employee” who
was employed by Defendant Fresh Dining Concepts LLC for approximately 5 months. Plaintiff
alleges various employment abuses including that she was given uniform shirts to wear which
did “not fall under the wash and wear exception” and therefore was “entitled to uniform
1 The Court would like to thank Mingyue Deng and Emily Sheehy for their assistance in this matter. 2 As recited by the Court in its prior decision. 160985/2023 Motion No. 002 Page 1 of 6
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maintenance pay”; she was “required…to work shifts spanning two calendar days and with less
than 11 hours between the shifts (‘clopening’)” and was not paid a clopening premium; she was
not paid for “days in which [she] was sick”; she worked “shifts that began and ended more than
10 hours apart in one day” without being paid the spread-of-hours premium “for every day in
which the interval between their start and end times exceeded ten hours”; that “upon information
and belief” her hours in the timekeeping system were “alter[ed] to reflect less time than she
actually worked”; she was not provided with a “good faith estimate of hours, dates, times and
locations of her expected regular schedule”; she was not provided a written work schedule at
least 14 days in advance; that “Defendant regularly changed [her] schedule at the last minute and
failed to pay schedule change premiums”; and on occasion Defendant added time to her schedule
without written consent.
The complaint alleges that defendant provides t-shirts emblazoned with the company
logos to its employees. Plaintiff was provided with two t-shirts at the start of her employment
and one or two additional t-shirts during her employment. Plaintiff was required to wear the t-
shirts on every shift, which she alleges was more than five days per week.
Legal Standard
It is well settled that when considering a motion to dismiss pursuant to CPLR § 3211,
“the pleading is to be liberally construed, accepting all the facts alleged in the pleading to be true
and according the plaintiff the benefit of every possible inference.” Avgush v Town of Yorktown,
303 AD2d 340 [2d Dept 2003]. Dismissal of the complaint is warranted “if the plaintiff fails to
assert facts in support of an element of the claim, or if the factual allegations and inferences to be
drawn from them do not allow for an enforceable right of recovery.” Connaughton v Chipotle
Mexican Grill, Inc., 29 NY3d 137, 142 [2017].
160985/2023 Motion No. 002 Page 2 of 6
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Discussion
Defendant argues that the Court should partially dismiss Plaintiff’s Amended Complaint
because Plaintiff failed to properly allege factual details to state claims of Uniform Maintenance,
Unpaid Wages and Sick Leave Claims. Section 146-1.7(a) of the Hospitality Wage Order
provides that “...where an employer does not maintain required uniforms for any employee, the
employer shall pay the employee, in addition to the employee’s agreed rate of pay, uniform
maintenance pay at the weekly rate set forth below, based on the number of hours worked…”
See 12 NYCRR § 146-1.7(a). An exception to this is section 146-1.7(b) of the Hospitality Wage
Order, which provides that: An employer will not be required to pay the uniform maintenance
pay, where required uniforms:
1. are made of ‘wash and wear’ materials; 2. may be routinely washed and dried with other personal garments; 3. do not require ironing, dry cleaning, daily washing, commercial laundering, or other special treatment; and 4. are furnished to the employee in sufficient number, or the employee is reimbursed by the employer for the purchase of a sufficient number of uniforms, consistent with the average number of days per week worked by the employee.
Defendant argues that Plaintiff failed to sufficiently plead facts to demonstrate that the
Hospitality Wage Order section 146-1.7(b) exception to Section 146-1.7(a) of the Hospitality
Wage Order was not met. Specifically, Defendant argues that Plaintiff fails to make any factual
assertions that demonstrate why four uniforms was not a sufficient number for working five days
a week. Defendant further argues that Plaintiff failed to make any allegations to demonstrate that
the “wash and wear” exception under Hospitality Wage Order section 146-1.7(b) is not
applicable here. Additionally, Defendant argues that Plaintiff failed to state specific allegations
in the Amended Complaint that would provide the number of hours that Plaintiff worked straight
160985/2023 Motion No. 002 Page 3 of 6
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or overtime per week, the amount that Plaintiff should have received for working those hours,
and the rate of pay for regular and overtime. Defendant also argues that Plaintiff failed to
specifically plead the compensation that she is entitled to for working the required hours to
accrue paid sick time.
First Cause of Action: Uniform Maintenance
The complaint alleges that defendant provides t-shirts emblazoned with the company
logos to its employees. Plaintiff was provided with two t-shirts at the start of her employment
and one or two additional t-shirts during her employment. Plaintiff was required to wear the t-
shirts on every shift, which she alleges was more than five days per week.
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Castillo v Fresh Dining Concepts LLC 2025 NY Slip Op 31264(U) April 11, 2025 Supreme Court, New York County Docket Number: Index No. 160985/2023 Judge: Lyle E. Frank 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: NEW YORK COUNTY CLERK 04/11/2025 04:48 PM INDEX NO. 160985/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/11/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 160985/2023 ALISIA CASTILLO MOTION DATE 09/20/2024 Plaintiff, MOTION SEQ. NO. 002 -v- FRESH DINING CONCEPTS LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 were read on this motion to/for DISMISS .
This is a class action lawsuit brought by plaintiff and on behalf of all other non-exempt
hourly paid employees (“Class”) who were or are employed by Fresh Dining Concepts LLC
(“Defendant”). The Court previously granted dismissal of the First, Fifth and Seventh causes of
action, but gave plaintiff leave to amend. Plaintiff amended those causes of action. Defendant
now moves pursuant to CPLR § 3211(a)(7) to dismiss the amended First, Fifth, and Seventh
Causes of Action in the Amended Complaint. Plaintiff opposes the motion. For the reasons set
forth below, the motion is granted in part and denied in part.1
Factual Background2
Plaintiff Alisia Castillo’s complaint alleges she is a former “fast food employee” who
was employed by Defendant Fresh Dining Concepts LLC for approximately 5 months. Plaintiff
alleges various employment abuses including that she was given uniform shirts to wear which
did “not fall under the wash and wear exception” and therefore was “entitled to uniform
1 The Court would like to thank Mingyue Deng and Emily Sheehy for their assistance in this matter. 2 As recited by the Court in its prior decision. 160985/2023 Motion No. 002 Page 1 of 6
1 of 6 [* 1] FILED: NEW YORK COUNTY CLERK 04/11/2025 04:48 PM INDEX NO. 160985/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/11/2025
maintenance pay”; she was “required…to work shifts spanning two calendar days and with less
than 11 hours between the shifts (‘clopening’)” and was not paid a clopening premium; she was
not paid for “days in which [she] was sick”; she worked “shifts that began and ended more than
10 hours apart in one day” without being paid the spread-of-hours premium “for every day in
which the interval between their start and end times exceeded ten hours”; that “upon information
and belief” her hours in the timekeeping system were “alter[ed] to reflect less time than she
actually worked”; she was not provided with a “good faith estimate of hours, dates, times and
locations of her expected regular schedule”; she was not provided a written work schedule at
least 14 days in advance; that “Defendant regularly changed [her] schedule at the last minute and
failed to pay schedule change premiums”; and on occasion Defendant added time to her schedule
without written consent.
The complaint alleges that defendant provides t-shirts emblazoned with the company
logos to its employees. Plaintiff was provided with two t-shirts at the start of her employment
and one or two additional t-shirts during her employment. Plaintiff was required to wear the t-
shirts on every shift, which she alleges was more than five days per week.
Legal Standard
It is well settled that when considering a motion to dismiss pursuant to CPLR § 3211,
“the pleading is to be liberally construed, accepting all the facts alleged in the pleading to be true
and according the plaintiff the benefit of every possible inference.” Avgush v Town of Yorktown,
303 AD2d 340 [2d Dept 2003]. Dismissal of the complaint is warranted “if the plaintiff fails to
assert facts in support of an element of the claim, or if the factual allegations and inferences to be
drawn from them do not allow for an enforceable right of recovery.” Connaughton v Chipotle
Mexican Grill, Inc., 29 NY3d 137, 142 [2017].
160985/2023 Motion No. 002 Page 2 of 6
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Discussion
Defendant argues that the Court should partially dismiss Plaintiff’s Amended Complaint
because Plaintiff failed to properly allege factual details to state claims of Uniform Maintenance,
Unpaid Wages and Sick Leave Claims. Section 146-1.7(a) of the Hospitality Wage Order
provides that “...where an employer does not maintain required uniforms for any employee, the
employer shall pay the employee, in addition to the employee’s agreed rate of pay, uniform
maintenance pay at the weekly rate set forth below, based on the number of hours worked…”
See 12 NYCRR § 146-1.7(a). An exception to this is section 146-1.7(b) of the Hospitality Wage
Order, which provides that: An employer will not be required to pay the uniform maintenance
pay, where required uniforms:
1. are made of ‘wash and wear’ materials; 2. may be routinely washed and dried with other personal garments; 3. do not require ironing, dry cleaning, daily washing, commercial laundering, or other special treatment; and 4. are furnished to the employee in sufficient number, or the employee is reimbursed by the employer for the purchase of a sufficient number of uniforms, consistent with the average number of days per week worked by the employee.
Defendant argues that Plaintiff failed to sufficiently plead facts to demonstrate that the
Hospitality Wage Order section 146-1.7(b) exception to Section 146-1.7(a) of the Hospitality
Wage Order was not met. Specifically, Defendant argues that Plaintiff fails to make any factual
assertions that demonstrate why four uniforms was not a sufficient number for working five days
a week. Defendant further argues that Plaintiff failed to make any allegations to demonstrate that
the “wash and wear” exception under Hospitality Wage Order section 146-1.7(b) is not
applicable here. Additionally, Defendant argues that Plaintiff failed to state specific allegations
in the Amended Complaint that would provide the number of hours that Plaintiff worked straight
160985/2023 Motion No. 002 Page 3 of 6
3 of 6 [* 3] FILED: NEW YORK COUNTY CLERK 04/11/2025 04:48 PM INDEX NO. 160985/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/11/2025
or overtime per week, the amount that Plaintiff should have received for working those hours,
and the rate of pay for regular and overtime. Defendant also argues that Plaintiff failed to
specifically plead the compensation that she is entitled to for working the required hours to
accrue paid sick time.
First Cause of Action: Uniform Maintenance
The complaint alleges that defendant provides t-shirts emblazoned with the company
logos to its employees. Plaintiff was provided with two t-shirts at the start of her employment
and one or two additional t-shirts during her employment. Plaintiff was required to wear the t-
shirts on every shift, which she alleges was more than five days per week.
Plaintiff has not pled sufficient factual allegations. Plaintiff fails to make any factual
assertions that demonstrate why four uniforms was not a sufficient number of uniforms for the
number of days she worked. Plaintiff only alleges in the Amended Complaint that the number of
uniforms received during her employment was not a sufficient number for her workweek.
Plaintiff also fails to plead factual details as to demonstrate that the uniform would require
special cleaning, which may include ironing or dry cleaning. This is consistent with Yunganaula
v. Garcia, where it was determined that a party is not entitled to maintenance pay when the party
fails to allege that the uniform required more maintenance than just laundering. Yunganaula v.
Garcia, 2021 WL 5993622, at *11 (E.D.N.Y. Aug. 11, 2021) report and recommendation
adopted as modified, 2021 WL 5984851 (E.D.N.Y. Dec. 17, 2021). The party’s uniform in that
case consisted of a “cook hat, shirts, and pants.” (Compl. ¶ 49; May 2020 Yunganaula Decl. ¶
13). Furthermore, the plaintiff has failed to allege that the uniform was not made of “wash and
wear” materials deeming the Hospitality Wage Order section 146-1.7(b) exception not
applicable.
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Moreover, a review of the cases cited and annexed complaints of other matters, highlights
the deficiencies in this amended complaint. Those complaints contained allegations that
uniforms had to be purchased at the plaintiff’s own cost, and that they were only provided one
shirt or outfit to be worn daily, those are distinguishable from the instant matter. The Court finds
that the Amended Complaint contains a recitation of the elements of the statute and no factual
allegations, accordingly, the Court grants dismissal of the First Cause of Action.
Fifth Cause of Action: Failure to Pay Wages
The Amended Complaint provides assertions that Plaintiff worked up to 2 hours after the
end of her shift, and that Defendant removed 30 minutes of the time that Plaintiff worked each
time that Plaintiff did not take a break. Am. Compl. ¶¶ 55, 58. Moreover, Plaintiff pleads in the
Amended Complaint that she “regularly” worked more than 40 hours per week without receiving
overtime pay. Am. Compl. ¶¶ 57-58. Plaintiff failed to provide an actual number of the total
hours worked per week and compare that to the wages that Plaintiff earned. Plaintiff merely
alleges in the Amended Complaint that she is entitled an excess of 10 hours for the work that she
performed outside of the time that she was clocked in for. Am. Compl. ¶ 59. While not overly
detailed, with the benefit of every favorable inference the pleading is sufficient under First
Department case law to survive a motion to dismiss. See Mendoza v. Cornell Univ., 215 A.D.3d
590, 591 [1st Dept. 2023] (holding that dismissal is proper where a plaintiff did not allege that
they worked more than 40 hours a week and did not give sufficient detail to support a reasonable
inference that she worked more than 40 hours in a given week); Kirby v. Carlo’s Bakery 42nd &
8th LLC, 212 A.D.3d 441, 442 [1st Dept. 2023] (holding that a plaintiff has a valid claim when
alleging that she worked more than 40 hours per week and that she was never paid for the
overtime). Therefore, dismissal of the Fifth Cause of Action is premature.
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Seventh Cause of Action: Paid Sick Leave
The Court finds that Plaintiff sufficiently plead facts demonstrating that she was entitled
to paid sick leave, with the benefit of every possible favorable inference. The Amended
Complaint is admittedly short on details. Plaintiff failed to provide the specific dates that she was
out sick and alleges she should have been compensated for, the number of unpaid sick leave
days, and the compensation that she is owed on behalf of her paid sick leave claim.
However, as with the unpaid wages claim, here there are sufficient allegations to survive
this motion, as plaintiff alleges the number of days she was sick for which she was not paid, and
that she accumulated those sick days. To this Court, this meets the notice pleading standard and
state a claim for unpaid sick leave days. Accordingly, it is hereby
ORDERED that the motion to dismiss the first cause of action is granted; and it is further
ADJUDGED that the motion to dismiss the fifth and seventh causes of action are denied.
4/11/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
160985/2023 Motion No. 002 Page 6 of 6
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