Karter v Longevity Health Servs. LLC 2024 NY Slip Op 32542(U) July 24, 2024 Supreme Court, New York County Docket Number: Index No. 160961/2023 Judge: Mary V. Rosado 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. INDEX NO. 160961/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/24/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------------------X INDEX NO. 160961/2023 RONGRONG KARTER, MOTION DATE 07/06/2024 Plaintiff, MOTION SEQ. NO. 001 - V-
LONGEVITY HEALTH SERVICES LLC,GREATCARE DECISION + ORDER ON INC.,NI XIA ZHENG, BARBARA WANG MOTION Defendant. --~----------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19,21,22,23,24,26,27 were read on this motion to/for DISMISSAL
Upon the foregoing documents, Defendants Longevity Health Services LLC ("Longevity")
and Ni Xia Zheng ("Zheng") (collectively "Moving Defendants") motion to dismiss Plaintiff
Rongrong Karter's ("Plaintiff') complaint pursuant to CPLR § 3211(a)(l) and (7) is granted in
part and denied in part.
I. Background
Plaintiff alleges she was a home health aide employed by Longevity and Defendant
Greatcare Inc. from October 2017 until October 2018 (NYSCEF Doc. 1 at ,r 9). Zheng was the
president of Longevity while Defendant Barbara Wang was the owner of Greatcare (id. at ,r,r 10-
11 ). Plaintiff alleges that in violation of New York Labor Law, she was only paid for the hours she
was scheduled to work even though she was allegedly working in excess of those hours (id. at ,r
19). She further claims she was not paid required overtime. Plaintiff argues she was forced to split
her time between Longevity and Greatcare as part of a scheme to mask the true number of hours
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worked. Plaintiff further alleges that Defendants willfully disregarded record keeping requirements
to avoid paying proper compensation (id. ,i,i 33-34).
Defendants Longevity and Zheng now move, pre-answer, to dismiss all claims except for
Plaintiffs first and second causes of action. Moving Defendants argue that Plaintiffs sixth cause
of action for violation of NYLL § 191 ( 1)( a)(i) and NYLL § 198(1-a) do not provide for a private
cause of action. They assert the§ 195(3) claim should be dismissed because Plaintiff was provided
with wage statements. Moving Defendants further argue that the unjust enrichment and quantum
meruit claims should be dismissed as duplicative, and they seek dismissal of all crossclaims.
In opposition, Plaintiff argues the First Department has held NYLL § 191 does provide a
private cause of action. Plaintiff argues the First Department's reasoning has been adopted by
myriad Federal courts. Plaintiff further claims the wage statements produced by Moving
Defendants do not definitively contradict her allegations and therefore are insufficient to dismiss
her § 195(3) claims. She further argues the unjust enrichment and quantum meruit claims are not
duplicative as they seek the reasonable value of her work, which may exceed the bare minimum
wage to which she is entitled under her statutory claims. Greatcare and Wang oppose dismissal of
their crossclaims and argue that by nature of joint and several liability, they are entitled to assert
these crossclaims to protect their interests.
In reply, Moving Defendants continue to rely on precedent from outside the First
Department to support their argument that there is no private cause of action under NYLL § 191. . Moving Defendants further assert the quantum meruit and unjust enrichment claims are equitable
in nature and may not be maintained where an adequate remedy exists at law. They urge this Court
to follow a recent trial court decision dismissing a NYLL § 195 claim. Finally, Moving Defendants
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argue dismissal of the crossclaims are appropriate because indemnification and contribution are
unavailable under NYLL claims for unpaid wages.
II. Discussion
A. Standard
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must
give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings
and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v
Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). All factual allegations must be
accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept
2004]). Conclusory allegations or claims consisting of bare legal conclusions with no factual
specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358, 373
[2009]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure
to state a claim will be granted if the factual allegations do not allow for an enforceable right of
recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).
A motion to dismiss based on documentary evidence pursuant to CPLR § 321 l(a)(l) is
appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual
allegations, conclusively establishing a defense as a matter oflaw (Goshen v Mutual Life Ins. Co.
of New York, 98 NY2d 314 [2002]). The documentary evidence must be unambiguous, of
undisputed authenticity, and its contents must be essentially undeniable (VXI Lux Holdco S.A.R.L.
v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]). A court may not dismiss a complaint
based on documentary evidence unless the factual allegations are definitively contradicted by the
evidence (Leon v Martinez, 84 NY2d 83, 88 [1994]).
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B. NYLL §§ 191 & 198
Moving Defendants arguments as they relate to §§ 191 & 198 are without merit per the
First Department (Vega v CM and Associates Construction Management, LLC, 175 AD3d 1144
[1st Dept 2019]). The First Department's holding in Vega has been reaffirmed by the First
Department (Riggi v Charlie Rose Inc., 212 AD3d 486 [1st Dept 2023]) and followed by numerous
Federal District Courts (see, e.g. Zachary v BG Retail, LLC, 2024 WL 554174 at *8 [SDNY Feb.
12, 2024]; Garcia v Skechers USA Retail, LLC, 2024 WL 1142316 at *6 [EDNY Mar. 15, 2024]).
While the Court is aware that the Second Department has disagreed with the First Department (see
Grant v Global Aircraft Dispatch, Inc., 23 AD3d 712 [2d Dept 2024]), this Court is bound by the
First Department. The Court declines to accept Moving Defendants' invitation to disregard the
controlling case law of this jurisdiction. Therefore, this portion of the motion is denied.
C. NYLL § 195(3)
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Karter v Longevity Health Servs. LLC 2024 NY Slip Op 32542(U) July 24, 2024 Supreme Court, New York County Docket Number: Index No. 160961/2023 Judge: Mary V. Rosado 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. INDEX NO. 160961/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/24/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------------------X INDEX NO. 160961/2023 RONGRONG KARTER, MOTION DATE 07/06/2024 Plaintiff, MOTION SEQ. NO. 001 - V-
LONGEVITY HEALTH SERVICES LLC,GREATCARE DECISION + ORDER ON INC.,NI XIA ZHENG, BARBARA WANG MOTION Defendant. --~----------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19,21,22,23,24,26,27 were read on this motion to/for DISMISSAL
Upon the foregoing documents, Defendants Longevity Health Services LLC ("Longevity")
and Ni Xia Zheng ("Zheng") (collectively "Moving Defendants") motion to dismiss Plaintiff
Rongrong Karter's ("Plaintiff') complaint pursuant to CPLR § 3211(a)(l) and (7) is granted in
part and denied in part.
I. Background
Plaintiff alleges she was a home health aide employed by Longevity and Defendant
Greatcare Inc. from October 2017 until October 2018 (NYSCEF Doc. 1 at ,r 9). Zheng was the
president of Longevity while Defendant Barbara Wang was the owner of Greatcare (id. at ,r,r 10-
11 ). Plaintiff alleges that in violation of New York Labor Law, she was only paid for the hours she
was scheduled to work even though she was allegedly working in excess of those hours (id. at ,r
19). She further claims she was not paid required overtime. Plaintiff argues she was forced to split
her time between Longevity and Greatcare as part of a scheme to mask the true number of hours
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worked. Plaintiff further alleges that Defendants willfully disregarded record keeping requirements
to avoid paying proper compensation (id. ,i,i 33-34).
Defendants Longevity and Zheng now move, pre-answer, to dismiss all claims except for
Plaintiffs first and second causes of action. Moving Defendants argue that Plaintiffs sixth cause
of action for violation of NYLL § 191 ( 1)( a)(i) and NYLL § 198(1-a) do not provide for a private
cause of action. They assert the§ 195(3) claim should be dismissed because Plaintiff was provided
with wage statements. Moving Defendants further argue that the unjust enrichment and quantum
meruit claims should be dismissed as duplicative, and they seek dismissal of all crossclaims.
In opposition, Plaintiff argues the First Department has held NYLL § 191 does provide a
private cause of action. Plaintiff argues the First Department's reasoning has been adopted by
myriad Federal courts. Plaintiff further claims the wage statements produced by Moving
Defendants do not definitively contradict her allegations and therefore are insufficient to dismiss
her § 195(3) claims. She further argues the unjust enrichment and quantum meruit claims are not
duplicative as they seek the reasonable value of her work, which may exceed the bare minimum
wage to which she is entitled under her statutory claims. Greatcare and Wang oppose dismissal of
their crossclaims and argue that by nature of joint and several liability, they are entitled to assert
these crossclaims to protect their interests.
In reply, Moving Defendants continue to rely on precedent from outside the First
Department to support their argument that there is no private cause of action under NYLL § 191. . Moving Defendants further assert the quantum meruit and unjust enrichment claims are equitable
in nature and may not be maintained where an adequate remedy exists at law. They urge this Court
to follow a recent trial court decision dismissing a NYLL § 195 claim. Finally, Moving Defendants
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argue dismissal of the crossclaims are appropriate because indemnification and contribution are
unavailable under NYLL claims for unpaid wages.
II. Discussion
A. Standard
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must
give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings
and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v
Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). All factual allegations must be
accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept
2004]). Conclusory allegations or claims consisting of bare legal conclusions with no factual
specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358, 373
[2009]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure
to state a claim will be granted if the factual allegations do not allow for an enforceable right of
recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).
A motion to dismiss based on documentary evidence pursuant to CPLR § 321 l(a)(l) is
appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual
allegations, conclusively establishing a defense as a matter oflaw (Goshen v Mutual Life Ins. Co.
of New York, 98 NY2d 314 [2002]). The documentary evidence must be unambiguous, of
undisputed authenticity, and its contents must be essentially undeniable (VXI Lux Holdco S.A.R.L.
v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]). A court may not dismiss a complaint
based on documentary evidence unless the factual allegations are definitively contradicted by the
evidence (Leon v Martinez, 84 NY2d 83, 88 [1994]).
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B. NYLL §§ 191 & 198
Moving Defendants arguments as they relate to §§ 191 & 198 are without merit per the
First Department (Vega v CM and Associates Construction Management, LLC, 175 AD3d 1144
[1st Dept 2019]). The First Department's holding in Vega has been reaffirmed by the First
Department (Riggi v Charlie Rose Inc., 212 AD3d 486 [1st Dept 2023]) and followed by numerous
Federal District Courts (see, e.g. Zachary v BG Retail, LLC, 2024 WL 554174 at *8 [SDNY Feb.
12, 2024]; Garcia v Skechers USA Retail, LLC, 2024 WL 1142316 at *6 [EDNY Mar. 15, 2024]).
While the Court is aware that the Second Department has disagreed with the First Department (see
Grant v Global Aircraft Dispatch, Inc., 23 AD3d 712 [2d Dept 2024]), this Court is bound by the
First Department. The Court declines to accept Moving Defendants' invitation to disregard the
controlling case law of this jurisdiction. Therefore, this portion of the motion is denied.
C. NYLL § 195(3)
The Court denies the portion of the motion seeking dismissal of the NYLL § 195(3) claim.
Plaintiff alleges that her wage statements were inaccurate by failing to list all hours worked,
including overtime hours. The plain language of NYLL § 195(3) requires wage statements to
include a statement of "the number of overtime hours worked" (see also Copper v Cavalry Staffing,
LLC, 132 F.Supp.3d 460, 468 [EDNY Sept. 25, 2015]). The wage statements produced by
Defendants do not definitively contradict Plaintiffs allegations that her wage statements did not
include accurate calculations of the number of overtime hours worked. If anything, this is an issue
of fact which must be flushed out in discovery (see also Tanski v AvalonBay Communities, Inc.,
2016 WL 8711203 [EDNY Sept. 30, 2016]).
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D. Unjust Enrichment and Quantum Meruit Claims
Plaintiffs unjust enrichment and quantum meruit claims are not duplicative of her New
York Labor Law claims. Plaintiff is seeking statutory penalties and compensation for unpaid wages
in her New York Labor Law claims but is seeking the reasonable value of her services in her unjust
enrichment and quantum meruit claims. The reasonable value of Plaintiffs services may exceed
the value set by Moving Defendants for her hourly wage (Mikhaylov v Y & B Transportation Co.,
2017 WL 1048071 at * 6 [EDNY Mar. 17, 2017]). Moreover, as these claims are pled in the
alternative, it would be premature to dismiss them as they may be viable alternatives for recovery
in the event Plaintiffs NYLL claims are dismissed on summary judgment (Sosnowy v A. Perri
Farms, Inc., 764 F.Supp2d 457 [EDNY Feb. 10, 2011]; see also Kaur v Royal Arcadia Palace,
Inc., 643 F.Supp.2d 276,297 [EDNY Dec. 27 2007] [denying dismissal of unjust enrichment claim
because it was pled in the alternative and would be adjudicated if statutory claims were
dismissed]).
E. Greatcare and Wang's Crossclaims
Much as there is no right to contribution or indemnification for employers under the Fair
Labor and Standards Act, the same rationale applies to wage shaving and failure to pay claims
under the New York Labor Law (see generally Herman v RSR Sec. Services Ltd., 172 F3d 132,
143 [2d Cir 1999]; see also Gustafson v Bell Atlantic Corp., 171 F Supp2d 311 [SDNY Oct. 26,
2001 ]). This is because these statutes are designed to regulate the conduct of employers towards
their employees, and to allow for indemnification in such circumstances would, in essence, allow
employers to simply shift away the risk of their statutory violations. Moreover, as the statutory
violations are not based on negligence but are based on intentional acts or omissions, contribution
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is unavailable. Greatcare and Wang have failed to cite to any authority m support of their
crossclaims. Therefore, the crossclaims are dismissed.
Accordingly, it is hereby,
ORDERED that Defendants Longevity Health Services LLC and Ni Xia Zheng motion to
dismiss is granted solely to the extent that Defendants Barbara Wang and Greatcare Inc.'s
crossclaims for indemnification and contribution are dismissed, and the motion is otherwise
denied, and it is further
ORDERED that Defendants Longevity Health Services LLC and Ni Xia Zheng shall file
an answer to Plaintiffs complaint within twenty days of entry of this Decision and Order; and it
is further
ORDERED that the parties are directed to appear for an in-person preliminary conference
on September 18, 2024 at 10:00 a.m. in Room 442, 60 Centre Street, New York, New York. If the
parties are able to agree to a proposed preliminary conference order, they are directed to e-mail
same to SFC-Part33-Clerk@nycourts.gov on or before September 17, 2024, which may obviate
the need to appear for the in-person preliminary conference; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
7/24/2024 DATE A Y V. ROSADO, J.S.C.
~ CHECK ONE : CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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