Tiro v. Public House Investments, LLC

288 F.R.D. 272, 2012 WL 6053961
CourtDistrict Court, S.D. New York
DecidedDecember 4, 2012
DocketNos. 11 Civ. 7679(CM), 11 Civ. 8249(CM)
StatusPublished
Cited by5 cases

This text of 288 F.R.D. 272 (Tiro v. Public House Investments, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tiro v. Public House Investments, LLC, 288 F.R.D. 272, 2012 WL 6053961 (S.D.N.Y. 2012).

Opinion

DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION OF STATE LAW CLAIMS

COLLEEN McMAHON, District Judge.

On October 28, 2011, Cristoforo Tiro (“Tiro”), Leonardo Cortes (“Cortes”), Enrique Hernandez (“Hernandez”), and Humberto Campos Lara (“Lara”) (collectively, “Plaintiffs”) commenced this action on behalf of themselves and all similarly situated “tipped/front of house” employees presently or formerly employed at New York City restaurants Public House New York (“Public House”), Butterfield 8 Restaurant & Lounge (“Butterfield”), Wicker Park Bar & Bistro (“Wicker Park”), and/or Tammany Hall Tavern/Black Finn (“Black Finn”) (collectively, “New York Restaurants”) against Public House Investments, LLC (“PHI”), Public House NYC, LLC (“Public House LLC”), Public House MGMT. NYC, LLC (“Public House Mgmt.”), Butterfield 8 NYC, LLC (“Butterfield LLC”), Martell’s NYC, LLC (“Martell’s LLC”), Black Finn NYC, LLC (“Black Finn LLC”), Chris Cocozziello (“Coco”), Brian Harrington (“Harrington”), [275]*275Gary Cardi (“Cardi”), and Frank Falesto (“Falesto”) (collectively, “Defendants”) for violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). On November 15, 2011, Plaintiffs Rodolfo Tejada Villa (“Villa”) and Hernandez (also collectively, “Plaintiffs”) filed a second complaint on behalf of themselves and all similarly situated “non-tipped/baek of house” employees at the New York Restaurants against Defendants, also for violations of the FLSA and NYLL. On January 27, 2012, these cases were consolidated.

Plaintiffs now move for certification of two classes of New York Restaurant employees for their New York state-law claims. One proposed class would consist of tipped, hourly food-service workers employed at one or more of the New York Restaurants from October 28, 2005 through the date of the final judgment in this matter. The other proposed class would consist of all non-tipped, non-exempt kitchen workers employed at one or more of the New York Restaurants from November 15, 2005 through the date of the final judgment in this matter.

For the reasons stated below, Plaintiffs’ motion is GRANTED IN PART.

BACKGROUND

1. The Parties

a. Tipped/Front of House Employee Plaintiffs

Cristoforo Tiro was employed as a bus-ser/runner at Public House from May 21, 2007 until October 9, 2011. (Tiro Compl. ¶ 6.) Leonardo Cortes has been employed as a barback at Public House since February 26, 2008. (Id. ¶ 10.) Enrique Hernandez was employed as a busser/runner at Public House from November 10, 2008 until October 1, 2011. (Id. ¶ 14; Villa Compl. ¶ 10.) Humberto Campos Lara has been employed as a barback at Public House since December 6, 2008. (Tiro Compl. ¶ 18.)

b. Non-Tipped/Back of House Employee Plaintiffs

Rodolfo Tejada Villa has been employed as a non-exempt food preparer at Public House since November 21, 2010. (Villa Compl. ¶ 6.) Villa also worked as a food preparer at Wicker Park in June 2011. (Id.) In addition to working in a tipped/front of house position at Public House, Hernandez also worked as a non-exempt dishwasher at Butterfield from April 14, 2009 through August 2009. (Id. ¶ 10; Tiro Compl. ¶ 14)

c. Defendants

Public House Investments, LLC is a Pennsylvania corporation solely owned by Brian Harrington. PHI provides management and promotional services to the New York Restaurants.

Public House NYC, LLC is a New York corporation solely owned by Chris Cocozziel-lo. Public House LLC’s function is to own and operate the restaurant Public House New York.

Public House MGMT. NYC, LLC is a New York corporation solely owed by Chris Co-eozziello. Public House Mgmt. is no longer an active company, but according to Defendants, its purpose was “as a vehicle to track expenses and receive consultant fees” and had no employees. (Defs.’ Mot. in Opp. 7.)

Butterfield 8 NYC, LLC is a New York corporation solely owned by Chris Cocozziel-lo. Butterfield LLC’s function is to own and operate the restaurant Butterfield 8 Restaurant & Lounge.

Martell’s NYC, LLC is a New York corporation solely owned by Frank Falesto. Mar-tell’s LLC’s function is to own and operate the restaurant Wicker Park, which closed in November 2011.

Black Finn NYC, LLC is a New York corporation solely owned by Chris Cocozziel-lo. Black Finn LLC’s function is to own and operate the restaurant Tammany Hall Tavern (formerly Black Finn).

Gary Cardi is the sole member and owner of Public House Logan Square in Philadelphia, PA, a non-defendant in this action. Cardi is also a high-level employee at PHI.

2. Facts

The facts of this case are straight forward. Plaintiffs claim that while employed at one or [276]*276more of the New York Restaurants, they and other similarly situated employees were not paid in accordance with the FLSA and NYLL. Plaintiffs claim that Defendants are all employers within the meaning of the FLSA and NYLL and have a practice and policy of failing to pay minimum, overtime, and spread-of-hours wages, failing to record time, and — for the tipped/front of house Plaintiffs-tip stealing and misappropriation. Furthermore, Plaintiffs allege that Defendants are part of a single integrated enterprise that jointly employed and failed to pay Plaintiffs properly. Particularly, Plaintiffs claim that Harrington, Coco, Cardi, and Fal-esto collectively own and operate each of the New York Restaurants, and these restaurants shared common management — PHI— which is responsible for payroll and timekeeping practices at each restaurant as against each Plaintiff.

The only facts differing from Plaintiff to Plaintiff in the complaints are the number of hours of regular or overtime wages remaining unpaid. Only the tipped/front of house employees have a claim for tip misappropriation or stealing.

3. Procedural History

On October 28, 20H, Tiro, Cortes, Hernandez, and Lara commenced this action on behalf of themselves and all similarly situated tipped/front of house employees presently or formerly employed at the New York restaurants against PHI, Public House LLC, Public House Mgmt., Butterfield LLC, Martell’s LLC, Black Finn LLC, Coco, Harrington, Cardi, and Falesto. for FLSA and NYLL violations. On November 15, 2011, Villa and Hernandez filed a second complaint on behalf of themselves and all similarly situated non-tipped/baek of house employees at the same four restaurants against Defendants also for FLSA and NYLL violations. On January 27, 2012, these eases were consolidated. The court presumably conditionally certified classes pursuant to the FLSA, and a number of individual plaintiffs have filed consents to sue under the FLSA.1

Plaintiffs now move for class certification of two classes of New York Restaurant employees for their NYLL claims. The first class would consist of tipped, hourly food-service workers employed at one or more of the restaurants from October 28, 2005 through the date of the final judgment in this matter. The second class would consist of all non-tipped, non-exempt kitchen workers employed at one or more of the restaurants from November 15, 2005 through the date of the final judgment in this matter.

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Cite This Page — Counsel Stack

Bluebook (online)
288 F.R.D. 272, 2012 WL 6053961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiro-v-public-house-investments-llc-nysd-2012.