UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW …blog.timesunion.com/tablehopping/files/2016/05/mazzone.pdf · Angelo and Matthew are collectively referred to herein as the

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ___________________________________________________JULIO A. OLVERA, on behalf of himself and others similarly situated,

Plaintiffs, v.

CLASS ACTION MAZZONE MANAGEMENT GROUP LTD., MAZZONE MANAGEMENT INC., TALA BISTRO LLC, 677 PRIME LLC,PRIME AT SARATOGA NATIONAL, LLC, APERITIVO BISTRO LLC, ANGELO COMPLAINT MAZZONE, AND MATTHEW MAZZONE,

JURY TRIAL DEMANDED

Defendants._______________________________

Plaintiff Julio A. Olvera (“Plaintiff”), individually and on behalf of all others similarly

situated, by his attorney, upon personal knowledge as to himself and upon information and belief

as to other matters, alleges as follows:

INTRODUCTION

1. This is a class and collective action lawsuit seeking to recover misappropriated

tips on behalf of Plaintiff and his similarly situated co-workers who were employed as hourly

food service workers for Mazzone Management Group, Ltd. and its related entities and affiliated

individuals (referred to collectively herein as “Defendants”).

2. Defendants own and operate the largest hospitality company in and around the

Albany, New York metropolitan area, including numerous restaurants (“Mazzone Restaurants”)

and on-premise and off-premise catering operations (“Mazzone Catering”).

3. As of 2013, the Defendants’ business reportedly earned over $30 million in

revenue each year and, by Defendants’ description, is the “largest mid-market catering company”

in the United States.

Case No.: 1:16-CV-0502 (BKS/DJS)

Case 1:16-cv-00502-BKS-DJS Document 1 Filed 04/29/16 Page 1 of 21

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4. As set forth below, despite millions of dollars in revenue, Mazzone Restaurants

and Mazzone Catering unlawfully retained a portion of their employees’ tips and failed to pay

minimum and overtime wages in violation of New York Labor Law (“NYLL”) and the Fair

Labor Standards Act, 29 U.S.C. §§201 et seq. (“FLSA”).

5. Specifically, Defendants illegally: (1) withheld a portion of servers’ tips when

patrons of Mazzone Restaurants ordered wine by the bottle or glass; (2) failed to remit gratuities

paid by customers of Mazzone Catering to Mazzone Catering service employees; and (3) failed

to pay overtime wages when employees worked over 40 hours a week.

6. Plaintiff brings these claims on behalf of himself and on behalf all similarly

situated current and former employees of Defendants.

PARTIES

Plaintiff

7. Plaintiff Julio A. Olvera (“Plaintiff” or “Olvera”) is a resident of Saratoga

Springs, New York. Olvera was employed by Defendants from approximately July 2009

through November 2010, and from August 2013 through October 2015, as a server and bartender

at “Prime at Saratoga National, LLC”, a Mazzone Restaurant. During the above time periods,

Olvera also worked on the wait staff of Mazzone Catering. At all relevant times, Olvera was an

employee of Defendants as defined in the FLSA and the NYLL. Olvera has, pursuant to 29

U.S.C. §216(b), consented in writing to be a party to the FLSA claims in this action.

Defendant Mazzone Corporate Entities

8. Defendant Mazzone Management Group Ltd., d/b/a Mazzone Hospitality, d/b/a

Angelo’s Tavolo, d/b/a Angelo’s Prime Bar & Grill, d/b/a Glen Sanders Mansion, d/b/a Mazzone


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Catering, d/b/a Key Hall at Proctors, d/b/a 90 State Events, d/b/a Prime at the Plaza, is a New

York corporation with a principal business address located 1 Glen Avenue, Scotia, New York

12302.

9. Defendant Mazzone Management Inc., d/b/a Mazzone Hospitality, d/b/a Hall of

Springs, d/b/a Art’s Dining, d/b/a Patron’s Club (hereinafter, “MMI” and collectively with

Mazzone Management Group, Ltd. “Mazzone”), is a New York corporation with a principal

business address located at the Glen Sanders Mansion, 1 Glen Avenue, Scotia, New York 12302.

10. Defendants list all the Mazzone restaurants on their website,

www.mazzonehospitality.com. According to Mazzone’s website, Mazzone operates six

Mazzone Restaurants: (1) Angelo’s 677 Prime; (2) Angelo’s Tavolo; (3) Angelo’s Prime Bar &

Grill; (4) Aperitivo Bistro; (5) Prime at Saratoga National; and (6) Tala Bistro. Moreover,

Mazzone conducted the operations of Mazzone Catering at numerous on-premises and off-

premises locations.

11. Upon information and belief, Mazzone has the power to hire and fire employees

of Mazzone Restaurants and Mazzone Catering and instituted the illegal practices described

herein. Mazzone’s control over hiring is illustrated by the fact that open positions at each of the

restaurants are listed on Mazzone’s website. Mazzone was Olvera’s employer under the FLSA

and the NYLL.

12. Upon information and belief, Mazzone and each of the Mazzone entities listed

above have an annual gross volume of sales in excess of $500,000 and are covered employers

within the meaning of the FLSA and NYLL.


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Mazzone Restaurants

13. Defendant Tala Bistro LLC, d/b/a Tala, An American Bistro (hereinafter, “Tala”),

is a New York limited liability company with an address for service of process located at 677

Broadway, Suite 500, Albany, New York 12207. According to its website, www.talabistro.com,

Tala does business at 626 New Loudon Road, Latham, New York 12110. Tala’s wine list

contains over one hundred selections, with prices ranging from $26 to $420 for wines by the

bottle and $7 to $20 for wines by the glass. Upon information and belief, Tala has an annual

gross volume of sales in excess of $500,000.

14. Defendant 677 Prime LLC d/b/a Angelo’s 677 Prime (hereinafter “677 Prime”) is

a New York limited liability company with a principal business address of 1 Glen Avenue,

Scotia, New York 12302. 677 Prime’s wine and beverage list contains over four hundred

selections, with prices ranging from $28 to $2,400 for wines by the bottle and $7 to $20 for

wines by the glass. Upon information and belief, 677 Prime has an annual gross volume of sales

in excess of $500,000.

15. Defendant Prime at Saratoga National, LLC (hereinafter, “PSN”) is a New York

limited liability company with a principal business address of 458 Union Avenue, Saratoga

Springs, New York 12866. PSN currently serves dinner four nights each week as well as a

Sunday brunch. PSN’s wine menu contains a selection of over two hundred selections, with

prices ranging from $28 to $2,400 for wines by the bottle and $8 to $14 for wines by the glass.

Upon information and belief, PSN has an annual gross volume of sales in excess of $500,000.

16. Defendant Aperitivo Bistro LLC (hereinafter, “Aperitivo”) is a New York limited

liability company with a principal business address of 1 Glen Avenue, Scotia, New York 12302.

According to its website, aperitivobistro.com, Aperitivo is located at 426 State Street,


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Schenectady, New York 12305. Aperitivo’s wine menu contains a selection of over eighty

selections, with prices ranging from $26 to $110 for wines by the bottle and $8 to $16 for wines

by the glass. Upon information and belief, Aperitivo has an annual gross volume of sales in

excess of $500,000.

17. Angelo Tavolo (hereinafter, “Tavolo”) is located at 1 Glen Ave, Scotia, New

York 12302. Tavolo's wine menu contains a selection of over ninety selections, with prices

ranging from $27 to $300 for bottles and $7 to $12 for wines by the glass. Upon information and

belief, Tavolo has an annual gross volume of sales in excess of $500,000.

18. Angelo’s Prime Bar & Grill (hereinafter, “Prime”) is located at 30 Clifton

Country Road, Clifton Park, New York 12065. Prime’s wine menu contains over fifty

selections, with prices ranging from $32 to $110 for wines by the bottle and $7 to $12 for wines

by the glass. Upon information and belief, Prime has an annual gross volume of sales in excess

of $500,000.

19. During all relevant times, the Mazzone Restaurants were each covered employers

within the meaning of the FLSA and NYLL.

Individual Defendants

20. Defendant Angelo Mazzone (“Angelo”) is a New York resident and serves as

Mazzone Group’s Chief Executive Officer.

21. Defendant Matthew Mazzone (“Matthew”) is a New York resident and serves as

Mazzone Group’s Chief Operations Officer. Matthew formerly served as Mazzone Group’s

Chief Financial Officer. Angelo and Matthew are collectively referred to herein as the

“Individual Defendants.”


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22. The Individual Defendants maintained control over, oversaw, and directed the

operation of the Defendants’ restaurants and catering business, including Defendants’

employment practices, during the relevant period.

23. The Individual Defendants jointly employed Plaintiff and similarly situated

employees at all relevant times, and were each covered employers within the meaning of the

FLSA and NYLL.

24. All Defendants named herein were and remain part of a single integrated

enterprise that jointly employed Plaintiff and similarly situated employees. Defendants were an

enterprise because they performed their related activities for a common business purpose.

25. Defendants, either directly or indirectly, have the power to hire and fire

employees of Mazzone Catering and Mazzone Restaurants, control such employees work

schedules and employment conditions, determine the rate and method of payment of such

employees, and maintain at least some records relating to such employees’ compensation.

JURISDICTION AND VENUE

26. This Court has original federal question jurisdiction under 28 U.S.C. §1331

because this case is brought under FLSA, 29 U.S.C. §§201, et seq. This Court has supplemental

jurisdiction over the NYLL claims pursuant to 28 U.S.C. §1367, as they are so related in this

action within such original jurisdiction that they form part of the same case or controversy under

Article III of the United States Constitution.

27. This Court has jurisdiction under 28 U.S.C. §1332(d). The amount in controversy

in this matter exceeds the sum or value of $5,000,000, exclusive of interest and costs.

28. At least one member of the proposed class is a citizen of a state different from that

of at least one Defendant.


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29. Each Defendant is subject to personal jurisdiction in New York as they are

domiciled in New York and each specifically intended to commit the illegal acts set forth herein

in New York.

30. Venue is proper in this District pursuant to 28 U.S.C. §1391 because Defendants

conduct business in this District, because a substantial portion of the wage violations giving rise

to Plaintiff’s claims occurred in this District, and because the acts and/or omissions giving rise to

the claims herein allegedly took place in this District.

FURTHER SUBSTANTIVE ALLEGATIONS

31. As alleged above, Plaintiff was employed by Defendants as a waiter at Defendant

PSN, a Mazzone Restaurant, from July 2009 until November 2010 and from August 2013 until

October 2015.

32. As alleged above, Plaintiff also worked for Mazzone Catering during the same

period, where he was a server at events catered by Mazzone Catering.

Illegally Retaining Tips for Wine Purchases

33. While Plaintiff was employed at PSN, Mazzone caused PSN to illegally retain a

portion of Plaintiff’s tips when customers served by Plaintiff ordered wine by the bottle or glass.

Specifically, Mazzone retained tips in the amount of 3% of wine bottle purchases and 1% of

wine glass purchases.

34. Whenever Plaintiff asked about this policy, Mazzone’s managers instructed

Plaintiff to speak with Sheila Burke, who is listed as Vice President of Restaurants on Mazzone’s

website.

35. As Vice President of Restaurants, part of Ms. Burke’s duties involved visiting the

various Mazzone restaurants and enforcing this illegal program. When Plaintiff asked Ms. Burke

about the practice, he was told that it was required to maintain Mazzone’s wine program.


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36. The practice constitutes an unlawful retention of Plaintiff’s and similarly-situated

tipped service staff employees’ wages under the FLSA. Under the FLSA, an employer may pay

an employee an amount below the minimum wage if the employer allows the employee to retain

all tips owed to him. Furthermore, under the FLSA, an employer cannot retain any portion of the

tips paid to employees who do not earn the minimum wage. See 29 U.S.C. §203(m). Thus,

Mazzone’s practice of retaining tips from service staff when customers ordered wine violates the

FLSA.

37. NYLL also bars tipping practices and actions that violate the FLSA. In addition,

Defendants’ practice violated NYLL §196-d, which prohibits employers from retaining tips

received by employees.

38. Plaintiff has learned that other Mazzone Restaurants illegally retain employee

tips. Mazzone Catering frequently employed Plaintiff and other employees of different Mazzone

Restaurants to work at catered events. When Plaintiff worked at these catering events, he spoke

to service employees who worked at numerous Mazzone Restaurants. These employees stated

that the practice of illegally withholding tips when customers ordered wine was instituted at the

Mazzone Restaurants in which they worked.

39. Consequently, Defendants paid Plaintiff and similarly situated employees

compensation below the statutory amount required by law.

Illegally Failing To Transmit Service Charges to Employees

40. Additionally, during part of this period, Mazzone Catering, which was operated

by Mazzone and the Individual Defendants, charged customers a “Service Charge.” A

reasonable consumer who saw “Service Charge” on their bill would believe that that such charge

constituted a gratuity. Such “Service Charge,” however, was never distributed to Mazzone

Catering service employees.


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41. Under New York law, there is a “rebuttable presumption that any charge in

addition to charges for food, beverage, lodging, and other specified materials or services,

including but not limited to any charge for ‘service’ or ‘food service,’ is a charge purported to be

a gratuity.” N.Y. Comp. Codes R. & Regs. tit. 12, §146-2.18.

42. Defendants did not clearly and expressly disclose to customers in language that

they would readily understand that the “Service Charge” was not a gratuity or tip, and would not

be distributed to members of the tipped service staff, or would be specifically used as an

administrative fee. Thus, Defendants’ practice violated NYLL §196-d, which prohibits

employers from retaining tips received by employees.

Failing to Pay Overtime Wages

43. Under New York Law, N.Y. Comp. Codes R. & Regs. tit. 12, §146-1.4, and

federal law, 29 USC §207(a)(1), Defendants were required to pay Plaintiff one and one-half

times his regular wage when he worked over 40 hours a week.

44. Defendants, however, failed to pay Plaintiff overtime wages when he worked over

40 hours a week in violation of New York and federal law.

DEFENDANTS’ CONDUCT WAS WILLFUL

45. Defendants’ conduct, as set forth in this Complaint, was willful and in bad faith,

and has caused significant damages to Plaintiff and similarly situated employees.

46. Defendants knew, or recklessly disregarded, that improperly forcing the Plaintiff

and similarly situated employees to share their tips with Defendants would economically injure

such employees. Defendants nevertheless conducted the operation of this illegal scheme to

enrich themselves.


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47. Defendants knew, or recklessly disregarded, that failing to pay overtime wages to

Plaintiff and similarly situated employees would economically injure such employees.

Defendants nevertheless conducted the operation of this illegal scheme to enrich themselves.

FLSA COLLECTIVE ACTION ALLEGATIONS

48. The First and Second Claims for Relief are properly brought under and

maintained as an opt-in collective action pursuant to 29 U.S.C. §216(b) of the FLSA.

49. Plaintiff brings the First Claim for Relief as a collective action pursuant to FLSA

Section 16(b), 29 U.S.C. §216(b), on behalf of all tipped, hourly workers employed by Mazzone

Restaurants (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers)

within three years prior to this lawsuit’s filing date through the date of final disposition of this

action (“FLSA Period”), and who were subject to Defendants’ unlawful practices of illegally

retaining portions of tips when customers purchased wine (“FLSA Collective Tip Plaintiffs”).

50. Plaintiff brings the Second Claim for Relief on behalf of all tipped, hourly

workers employed by Mazzone Restaurants and Mazzone Catering (waiters, waitresses,

bartenders, bussers, runners, and other hourly service workers) within the FLSA Period and who

were subject to Defendants’ unlawful practices of failing to pay employees one and one-half

times their regular rate of pay when they worked overtime (“FLSA Collective Overtime

Plaintiffs”, and collectively with the FLSA Collective Tip Plaintiffs, the “FLSA Collective

Plaintiffs”).

51. Defendants employed Plaintiff during the FLSA Period.

52. During the FLSA Period, Defendants employed more than 50 employees, each

falling within the FLSA Collective Plaintiffs.


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53. Defendants controlled how much the FLSA Collective Plaintiffs were

compensated, maintained records of employment for the FLSA Period, assigned and supervised

all tasks given to the FLSA Collective Plaintiffs, and maintained and exercised control as to how

the FLSA Collective Plaintiffs were to perform their tasks.

54. At all relevant times, Plaintiff and the other FLSA Collective Plaintiffs have had

substantially similar job requirements and pay.

55. Defendants willfully retained tips due to FLSA Collective Plaintiffs contrary to

law.

56. Defendants failed to compensate Plaintiff in the amount of one and one-half times

his regular rate of pay as required under 9 U.S.C. §207(a)(1).

57. The claims of Plaintiff stated herein are essentially the same as those of the other

FLSA Collective Plaintiffs.

58. There are numerous similarly-situated current and former employees of

Defendants who were subject to the aforementioned conduct in violation of the FLSA who will

benefit from the issuance of a Court-supervised notice of the present lawsuit and the opportunity

to join therein. Those similarly-situated employees are known to Defendants and are readily

identifiable through Defendants’ records.

CLASS ACTION ALLEGATIONS

59. Plaintiff brings the Third, Fourth, and Fifth Claims for Relief pursuant to Rule 23

of the Federal Rules of Civil Procedure (“F.R.C.P.”) on behalf of the following three defined

classes (referred to occasionally collectively herein as the “NY Classes”):

a. All tipped, hourly workers employed by Mazzone Restaurants (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers) within six years prior to this lawsuit’s filing date through the date of final disposition of this action (“NY Class Period”), and who were subject to


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Defendants’ unlawful practice of retaining portions of tips when customers purchased wine (“NY Restaurant Class”).

b. All tipped, hourly workers employed by Mazzone Catering (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers) within NY Class Period, and who were subject to Defendants’ unlawful practice of taking deductions from the Class members tip pool by failing to pass along the 20% “Service Charge” placed on customers’ bills to employees as a gratuity. (“NY Catering Class”).

c. All tipped, hourly workers employed by Mazzone Restaurants and Catering (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers) within the NY Class Period, and who were subject to Defendants’ unlawful practice of failing to pay one and one-half times regular pay for overtime hours worked. (“NY Overtime Class”).

60. New York State law prohibits employers from requiring tipped employees from

sharing tips with non-service employees or management. NYLL §196-d.

61. NYLL also bars tipping practices and actions that violate the FLSA.

62. Defendants’ practice of requiring Plaintiffs and members of the NY Restaurant

Class and the NY Catering Class to pay a portion of their tips to ineligible persons and/or the

house were and are in violation of NYLL.

63. Moreover, New York law requires Defendants to pay Plaintiff and similarly

situated employees one and one-half times their regular pay where such employees work over 40

hours a week.

64. The NY Classes’ members are readily ascertainable. The number and identity of

the NY Classes is determinable from the records of Defendants. The hours assigned and worked,

the positions held, and the rates of pay for each NY Class member are also determinable from

Defendants’ records. For purposes of notice and other purposes related to this action, their

names and addresses are readily available from Defendants. Notice can be provided by means

permissible under F.R.C.P. 23.


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65. The proposed NY Classes are so numerous that joinder of all members is

impracticable, and the disposition of their claims as a class will benefit the parties and the Court.

Although the precise number of such persons is unknown, and the facts on which the calculation

of that number are presently within the sole control of Defendants, upon information and belief,

there are more than fifty (50) members of each of the NY Classes.

66. Plaintiff is able to fairly and adequately protect the interests of each of the NY

Classes and has no interests legitimately antagonistic to either of the NY Classes. Plaintiff is

represented by attorneys who are experienced and competent in both class action litigation and

employment litigation.

67. Plaintiff’s claims are typical of those claims which could be alleged by any

member of each of the NY Classes, and the relief sought is typical of the relief which would be

sought by each member of each NY Class in separate actions. Each of the three NY Classes’

members were subject to the same respective corporate practices of Defendants, as alleged

herein, of illegal retention of tips. Defendants’ corporate-wide policies and practices affected all

NY Class members similarly, and Defendants benefited from the same type of unfair and/or

wrongful acts as to each Class member. Plaintiff and other NY Class members sustained similar

losses, injuries, and damages arising from the same unlawful policies, practices, and procedures.

Plaintiff had the same or similar duties as other NY Restaurant Class, NY Catering Class, and

NY Overtime Class members.

68. A class action is superior to other available methods for the fair and efficient

adjudication of the controversy – particularly in the context of wage and hour litigation where

individual class members lack the financial resources to vigorously prosecute a lawsuit against

corporate defendants. Class action treatment will permit a large number of similarly-situated


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persons to prosecute their common claims in a single forum simultaneously, efficiently, and

without the unnecessary duplication of efforts and expense that numerous individual actions

engender.

69. Because the losses, injuries, and damages suffered by each of the individual Class

members are small, the expenses and burden of individual litigation would make it extremely

difficult or impossible for the individual NY Class members to redress the wrongs done to them.

70. On the other hand, important public interests will be served by addressing the

matter as a class action. The adjudication of individual litigation claims would result in a great

expenditure of Court and public resources; however, treating the claims as a class action would

result in a significant saving of these costs. The prosecution of separate actions by individual

members of the NY Classes would create a risk of inconsistent and/or varying adjudications with

respect to individual members of each of the NY Classes, establishing incompatible standards of

conduct for Defendants and resulting in the impairment of NY Class members’ rights and the

disposition of their interests through actions to which they were not parties. The issues in this

action can be decided by means of common, class-wide proof. In addition, if appropriate, the

Court can, and is empowered to, fashion methods to efficiently manage this action as a class

action.

71. Defendants and other employers throughout the state violate NYLL. Current

employees are often too afraid to assert their rights out of fear of direct and indirect retaliation.

Former employees are fearful of bringing claims because doing so can harm their employment,

future employment, and future efforts to secure employment. Class actions provide class

members who are not named in the complaint a degree of anonymity which allows for the

vindication of their rights while eliminating or reducing these risks.


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72. There are questions of law and fact common to each of the NY Classes which

predominate over any questions affecting only individual class members, including:

a. Whether Defendants employed Plaintiff and the NY Classes within the

meaning of NYLL;

b. Whether Defendants paid Plaintiff and the NY Class at the proper

minimum wage rate for all hours worked;

c. Whether Defendants paid Plaintiff and the NY Overtime Class overtime

wages;

d. At what common rate, or rates subject to common methods of calculation,

were Defendants required to pay the NY Class members for their work;

e. Whether Defendants have a policy of retaining a portion of Plaintiff’s and

the NY Classes’ members’ tips and whether such policy violates NYLL;

f. Whether Defendants misappropriated Plaintiff’s and the NY Restaurant

Class members’ tips based on sales of wine and distributed a portion of

those tips to ineligible workers at the Defendants’ businesses in violation

of NYLL;

g. Whether Defendants misappropriated Plaintiff’s and the NY Catering

Class members’ tips by charging Defendants’ catering customers and large

parties a mandatory “Service Fee” that could be reasonably construed as a

gratuity;

h. What the proper measures of damages sustained by each of the NY

Classes are; and

i. Whether Defendants’ conduct was “willful.”


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73. The case is maintainable as a class action under F.R.C.P. 23(b)(1) because

prosecution of actions by or against individual members of the NY Classes would yield

inconsistent or varying adjudications and create risks of incompatible standards of conduct for

Defendants. Further, adjudication of each individual NY Class members’ claim as a separate

action would be dispositive of the interest of other individuals not part to this action, thus

impeding their ability to adequately protect their interests.

74. Class certification is also appropriate under F.R.C.P. 23(b)(3) because questions

of law and fact common to the NY Classes predominate over any questions affecting only

individual members, and because a class action is superior to other available methods that can

fairly and efficiently adjudicate this lawsuit. Defendants’ common and uniform policies and

practices denied the NY Class members the wages to which they are entitled. Members’

damages are small compared to the expense and burden of individually prosecuting this lawsuit.

Moreover, class certification is superior because it obviates the need for unduly duplicative

litigation that might result in inconsistent judgments regarding Defendants’ practices and

conduct.

75. Plaintiff intends, to the extent required by F.R.C.P. 23, to provide notice to all

members of the NY Restaurant Class, the NY Catering Class, and the NY Overtime Class. The

Classes’ members’ names and addresses are available from Defendants.

FIRST CLAIM (FLSA Minimum Wage Claim, 29 U.S.C. §§201, et seq.)

76. Plaintiff, on behalf of himself and the FLSA Collective Tip Plaintiffs, re-alleges

and reincorporates by reference all preceding paragraphs herein.

77. Each Defendant is an “employer” engaged in interstate “commerce” and/or in the

production of “goods” for “commerce,” within the meaning of the FLSA, 29 U.S.C. §203. At all


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relevant times, Defendants have employed “employees,” including Plaintiff and the FLSA

Collective Plaintiffs.

78. Pursuant to applicable law, Defendants were required to pay Plaintiff and other

FLSA Collective Tip Plaintiffs the federal minimum wage rate for all hours worked.

79. Defendants were not eligible to avail themselves of the tipped minimum wage rate

under the FLSA, 29 U.S.C. §203(m), and supporting federal regulations, including but not

limited to 29 C.F.R. §531.50 et seq., because Defendants did not permit Plaintiff and other

members of the FLSA Collective Tip Plaintiffs to retain all tips that they received, in violation of

the FLSA, 29 U.S.C. §203(m).

80. Specifically, Defendants retained tips in the amount of 3% of wine bottle sales

and 1% of wine glass sales.

81. Throughout the applicable period, Defendants willfully failed to pay Plaintiff and

other FLSA Collective Tip Plaintiffs the applicable minimum wage for each hour worked and

retained Plaintiff’s and other FLSA Collective Tip Plaintiffs’ tips.

82. Plaintiff seeks damages in the amount of his and the FLSA Collective Tip

Plaintiffs’ respective unpaid compensation, liquidated (double) damages provided under the

FLSA for minimum wage violations, attorneys’ fees and costs, and such other legal and equitable

relief as this Court deems just and proper.

SECOND CLAIM (Overtime Claim, 29 USC §207(a)(1))

83. Plaintiff, on behalf of himself and the FLSA Collective Overtime Plaintiffs, re-

alleges and reincorporates by reference all preceding paragraphs herein.

84. Each Defendant is an “employer” engaged in interstate “commerce” and/or in the

production of “goods” for “commerce,” within the meaning of the FLSA, 29 U.S.C. §203. At all


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relevant times, Defendants have employed “employees,” including Plaintiff and the FLSA

Collective Plaintiffs.


FLSA Collective Overtime Plaintiffs the federal minimum wage rate for all hours worked.

86. Specifically, Defendants failed to pay Plaintiff and other FLSA Collective

Overtime Plaintiffs one and one-half times their regular rate of pay where they worked over 40

hours a week.


other FLSA Collective Overtime Plaintiffs the applicable minimum wage for each hour worked

and retained Plaintiff’s and other FLSA Collective Tip Plaintiffs’ tips.

88. Plaintiff seeks damages in the amount of his and other FLSA Collective Tip

Plaintiffs’ respective unpaid compensation, liquidated (double) damages provided under the

FLSA for minimum wage violations, attorneys’ fees and costs, and such other legal and equitable

relief as this Court deems just and proper.

THIRD CLAIM (N.Y. State Minimum Wage Act, NYLL §§650 et seq.)

89. Plaintiff, on behalf of himself and NY Restaurant Class members, re-alleges and

reincorporates by reference all preceding paragraphs herein.

90. NYLL also bars tipping practices and actions that violate the FLSA.

91. Defendants willfully failed to pay Plaintiff and members of the NY Restaurant

Class the minimum wage for all hours worked and retained tips when customers purchased

bottles or glasses of wine in violation of NYLL.

92. Defendants’ failure to pay Plaintiff and other NY Restaurant Class members the

minimum wage was willful within the meaning of NYLL §663.


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93. As a result of Defendants’ willful violations of NYLL, Plaintiff and the NY

Restaurant Class are entitled to recover their respective unpaid compensation, liquidated

damages as provided for by NYLL Article 6, §198, attorneys’ fees and costs, pre- and post-

judgment interest, and such other legal and equitable relief as this Court deems just and proper.

FOURTH CLAIM (Illegal Deductions from Gratuities, NYLL §196-d)

94. Plaintiff, on behalf of himself and members of the NY Restaurant Class and NY

Catering Class members, re-alleges and reincorporates by reference all preceding paragraphs

herein.

95. Defendants retained portions of Plaintiff’s and the NY Restaurant Class members’

tips by improperly deducting a percentage of their tips after each shift based on each employee’s

wine sales in violation of NYLL §196-d.

96. Defendants further retained gratuities due to the NY Catering Class in violation of

NYLL §196-d by failing to remit the “Service Charge” paid by customers to the NY Catering

Class.

97. Defendants unlawfully distributed tips earned by Plaintiffs and the NY Restaurant

Class and NY Catering Class members to ineligible parties, including Defendants themselves.

98. As a result of Defendants’ willful violations of NYLL, Plaintiff and the NY

Classes’ members are entitled to recover their respective unpaid compensation (including

without limitation unpaid overtime wages), liquidated damages as provided for by NYLL Article

6, §198, attorneys’ fees and costs, pre- and post-judgment interest, and such other legal and

equitable relief as this Court deems just and proper.


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FIFTH CLAIM (Failure to Pay Overtime, 12 NYCRR §146-1.4)

99. Plaintiff, on behalf of himself and the New York Overtime Class, re-alleges and

reincorporates by reference all preceding paragraphs herein.


members of the New York Overtime Class one and one-half time regular pay where Plaintiff and

the New York Overtime Class worked over 40 hours a week.


the New York Overtime Class the applicable minimum wage for each hour worked.

102. Plaintiff and the NY Classes’ members are entitled to recover their respective

unpaid compensation (including without limitation unpaid overtime wages), liquidated damages

as provided for by NYLL Article 6, §198, attorneys’ fees and costs, pre- and post-judgment

interest, and such other legal and equitable relief as this Court deems just and proper.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for a judgment against the Defendants awarding the

following relief:

a) That the Court determine that this lawsuit may proceed as an FLSA collective

action;

b) That the Court determine that this lawsuit may proceed as a class action under

F.R.C.P. 23(b)(1) and (3);

c) That Defendants have violated applicable provisions of the FLSA as to Plaintiff

and the FLSA Collective Plaintiffs;

d) That Defendants have violated applicable provisions of NYLL as to Plaintiff and

the NY Classes;


21

e) That Defendants’ violations as described above are found to have been willful;

f) An award of unpaid wages owed, including interest thereon;

g) Penalties, including liquidated damages, subject to proof at trial;

h) Reasonable attorneys’ fees and costs, including fees pursuant to 29 U.S.C. §216,

N.Y. Lab. L. §663 and/or other applicable law;

i) Pre-judgment and post-judgment interest; and

j) Such other and further relief, in law or equity as this Court deems just and proper.

JURY DEMAND

Pursuant to F.R.C.P. 28(b), Plaintiff demands a trial by jury on all issues so triable.

Dated: April 29, 2016 New York, New York

Fleischman Law Firm, PLLC

______________________________________Keith M. Fleischman [520004] Joshua D. Glatter (Pro Hac Motion to Be Submitted)Ananda N. Chaudhuri [520010] 565 Fifth Avenue, 7th Floor New York, NY 10017 Tel: 212-880-9567 Fax: 917-591-5245

Law Offices of Joseph T. Moen Joseph T. Moen (Pro Hac Motion to Be Submitted)45 Prospect Street Cambridge, MA 02139 Tel: 617-575-9240


CO\SE\-T TO SUE

I, Julio A. Olvera. am a former employee of the Defendants in this action. I consent to be

the Plaintiff in this action and understand that I have minimum rvage and or,'efiime claims under

the Fair Labor Standards Act and New York Labor Lau's.

Case No.: 1:16-CV-0502 (BKS/DJS)

Case 1:16-cv-00502-BKS-DJS Document 1-1 Filed 04/29/16 Page 1 of 1

JS 44 (Rev. 12/12) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 530 General’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1 OriginalProceeding

’ 2 Removed fromState Court

’ 3 Remanded fromAppellate Court

’ 4 Reinstated orReopened

’ 5 Transferred fromAnother District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE0206-3656298 $400.00 BKS DJS

Case No.: 1:16-CV-0502

Olvera, Julio, A.

Saratoga

Fleischman Law Firm, PLLC, 565 Fifth Ave., 7FL, New York, NY 10036;Law Office of Joseph T. Moen, 45 Prospect Street, Cambridge, MA02139

Mazzone Management Group LTD.; Mazzone Management Inc.; Tala Bistro LLC; 677 Prime LLC; Aperitivo Bistro LLC; Mazzone, Angelo;Mazzone, Matthew

Schenectady

29 U.S.C. §§201, et seq.; 29 USC §207(a)(1)

FLSA Minimum Wage Claim; Overtime Claim

04/29/2016

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JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendmentto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takesprecedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, thecitizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, issufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more thanone nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filingdate.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers ormultidistrict litigation transfers.Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionalstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docketnumbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


Documents

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW …blog.timesunion.com/tablehopping/files/2016/05/mazzone.pdf · Angelo and Matthew are collectively referred to herein as the