SUPREME COURTOF THE STATEOF NEW YORK ALBANY COUNTY

-----------------x RYAN PICARD, on behalf of himself and others similarly situated,,

Plaintiff, -againstBIGSBEE ENTERPRISES, INC. d1bIA MALLOZZI'S RESTAURANT,FAIRWAY VIEW LLC d|b Ia THE CLUBHOUSE AT WESTERNTURNPIKE, JRCOF ROTTERDAM, LLC, GOLDEN TOQUE, iNC., MALLOZZI DISTRIBUTINGLLC dlb I a MALLOZZI'S AT COLONIE COUNTRY CLUB, MORELLI IMPORTERS AND DISTRIBUTORS LLC. THE MALLOZZI GROUP LLC, JOHN MALLOZZI, and JOSEPHMALLOZZI,

Index No.: i cl8q1?

CLASSACTION COMPTAINT

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Plaintiff, on behalf of himself and all otherssimilarly situated,by and through his attorneys,Joseph& KirschenbaumLLP and Berke-Weiss & PechmanLLP, as and for his Complaint againstDefendantsBigsbeeEnterprises, Inc, dlb I aMaIlozzl's Restauranf Fairway View LLC dlb la The Clubhouseat WesternTurnpike, ]RC of Rotterdam,LLC, Golden Toque,Inc., MallozziDrstrtbuting LLC dlb I aMallozzl's at Colonie Country Club, Morelli Importers and Distributors LLC, The Mallozzi Group LLC, John Mallozzi, andJosephMal\ozzi (collectively,"Def.endants" or "Mallozz7"), allegesas follows: NATURE OF THE CASE 1. This is a"wage and hour" classactionin which Plaintiffclaims

Defendants,his employers,illegally retainedsubstantialportions of the gratuitiesof Plaintiff and the other serverswho worked at cateringfacilitiesowned and operatedby Defendants. Plaintiff also alleges, on behalf of a classof similarly-sifuatedemployees,

Clerk CountY Albany

Number11368334 Document AM 9:17:33 Rcvd0410412013

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that Defendantsfailed to provide a wage notice pursuant to New York Labor Law ("NYLL"), Article 6, S 195(1). 2. NYLL S 196-d,provides that: No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities,receivedby an employee,or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. 3. The Court of Appealsrn Samiento rs. WorldYacht lnc.,1.0 N.Y.3d70,74

(2008)stated:"We concludethat a chargethat is not a voluntary payment may be a chargepurported to be a gratuity' within the meaning of the stafue." 4. New York law further provides that "A chargepurported to be a gratuity

must be disfributed in full as gratuitiesto the serviceemployees or food serviceworkers who provided the service." Moreover,"[t]hereshallbe a 12N.Y.C.R,R. S 146-2.18(a). rebuttablepresumption that any chargein addition to charges for food, beverage...including but not limited to any chargefor "service"or "food service"is a Additionally, "The chargepurported to be a gratuity." 12 N.Y.C.R.R. S 746-2.1,8(b). employer has the burden of demonstrati.ng, by clearand convincingevidence,that the notification was sufficient to ensurethat a reasonable customerwould understandthat suchchargewas not purported to be a gratuIry." 72N.Y.C.R.R. S 1,46-2.79(b). JURISDICTION AND VENUE 5. the actsand/ or omissions Jurisdictionis proper in this Court because

giving rise to the causes County. of action allegedherein occurredin Schenectady 6. Venue is proper in this Court pursuant to New York Civil PracticeLaw

and RulesSection503(a)because Plaintiff residesin Albany County.

THE PARTIES 7. Plaintiff Ryan Picardis an Albany County residentand was employedby

Defendantsas a server atMallozzi's Restaurant from in or about March 2011through December2072. 8. Upon information and beliel Defendantsare part of a singleintegrated

enterprisethat jointly employed Plaintiff and similarly situatedemployees at all times relevant. EachDefendant has had substantialcontrol over Plaintiff's and similarly sifuated employees'working conditions,and over the unlawful policiesand practices alleged herein. 9. Defendant Bigsbee Enterprises, Inc. ("Bigsbee")dlb I aMaIlozzl's

locatedat Restaurantis a New York corporationwith its principal placeof business L930Curry Road,Schenectady, Bigsbee provides catering New York 12303-3902. servicesat severalvenues,including Mallozzl's Restaurant. 10. Bigsbeeis a coveredemployerwithin the meaningof the NYLL, and

within employed and/or jointly employed Plaintiff and similarly situatedemployees the meaning of the NYLL. 11. At all relevant times,Bigsbee maintained control, oversight,and direction

over Plaintiff and similarly situatedemployees, including policiesgoverning the allocation of servicechargesand other employment practicesthat applied to them. 12. Upon information and beiiel DefendantFairway View LLC dlb/a The

Clubhouse at WesternTurnpike ("Fairway View") is a New York iimited liability New York company with its principal officeslocatedat 1930Curry Road,Schenectady, 72303-3902. Fairway View provides cateringservicesat The Clubhouseat Western Turnpike.

1.3.

Fairway View is a coveredemployerwithin the meaningof the NYLL,

and employed and/or jointly employed Plaintiff and similarly situatedemployees within the meaning of the NYLL. 14. At all relevant times, Fairway View maintainedcontrol,oversigh! and

direction over Plaintiff and similarly situatedemployees, including policiesgoverning the allocationof servicechargesand other employmentpractices that applied to them. 15. Upon information and belief,]RC of Rotterdam,LLC ("JRC")is a New

York limited liability company with its principal placeof business locatedat 1930Curry Road, Schenectady, New York 1,2303-3902. at various JRCprovides cateringservices locations. 76. JRCis a coveredemployer within the meaningof the NYLL, and

employed and/or jointly employed Plaintiff and similarly situatedemployees within the meaning of the NYLL. 77. At ali relevant times, JRCmaintainedcontrol, oversighf and direction

over Plaintiff and similarly situated employees, including policiesgoverning the ailocation of servicechargesand other employmentpractices that applied to them, 18. Upon information and belief,Golden Toque,Inc. ("Golden Toque") is a

New York corporation with its principal placeof business located at1.930 Curry Road, Schenectady, New York 12303-3902. Golden Toqueprovides cateringservices at various locations. 19. Colden Toque is a coveredemployerwithin the meaning of the NYLL,

and employed and/or jointly employed Plainflff and similarly situatedemployees within the meaning of the NYLL.

20.

At all relevant times, Golden Toquemaintainedcontrol,oversighf and

direction over Plaintiff and similarly situatedemployees, including policiesgoverning the allocationof servicechargesand other employmentpractices that applied to them. 27. Upon information and beliel Mallozzi Distributing LLC dlb I aMallozzi

at Colonie Country Club ("Mallozzi Distributing") is a New York limited liability companywith its principal officeslocatedat L930Curry Road,Schenectady, New York 12303-3902. Mallozzi Distributing provides cateringservices at ColonieCountry Club. 22. Mallozzi Distributing is a coveredemployerwithin the meaning of the

NYLL, and employed and/or jointly employed Plaintiff and similarly situated employeeswithin the meaning of the NYLL. 23. At all relevant times, MallozziDistributing maintained control, oversight,

including policies and direction over Plaintiff and similariy situatedemployees, governing the allocation of servicechargesand other employmentpracticesthat applied to them. 24. Upon information and beliel Morelli Importers and Distributors LLC

("Morelli") is a New York limited liabilify companywith its principal place of business locatedat 1930Curry Road, Schenectady, Morelli provides New York 12303-3902. cateringservicesat various locations. 25. Morelli is a coveredemployer within the meaningof the NYLL, and

employed and/or jointly employed Plaintiff and similarly situatedemployeeswithin the meaning of the NYLL. 26. At all relevant times, Morelli maintainedcontrol, oversight and direction

over Plaintiff and similarly situated employees, including policiesgoverning the allocationof servicechargesand other employmentpracticesthat applied to them.

27.

Upon information and belief, The Mallozzi Group LLC ("Mallozzi

Group")is a New York limited liability company with its principal officeslocatedat 1930Curry Road, Schenectady,New York 72303-3902.Mallozzi Group provides cateringservices at The Italian American C1ub. 28. Mallozzi Group is a covered employer within the meaning of the NYLL,

and employedand/or jointly employed Plaintiff and similarly situatedemployees within the meaning of the NYLL. 29. At all relevant times, Mallozzi Group maintained control, oversight and

direction over Plaintiff and similarly situated employees, including policiesgoverning the allocationof servicechargesand other employmentpractices that applied to them. 30. Defendant John Mallozzi is an owner and operator of Mallozzi's and

exercises sufficient control of eachcateringlocation'sday-to-dayoperationsto be consideredan employer of Plaintiff and those similarly sifuatedunder New York Labor Law. 31,. MalIozzi is an owner and operatorof.Mallozzi'sand Defendant Joseph

exercises sufficient control of eachcateringlocation'sday-to-dayoperationsto be consideredan employer of Plaintiff and those similarly situatedunder New York Labor Law. 32. DefendantsBigsbeeEnterprises, Inc. dlb I aMallozzi's Restaurant,

Fairway View LLC d lb I a The Clubhouseat WesternTurnpike, IRC of Rotterdam,LLC, Golden Toque,Inc., MallozziDtsfributing LLC dlb I aMallozzl's at ColonieCountry Club, Morelli Importers and Distributors LLC, The Mallozzi Group LLC, John Mallozz| and Joseph Mallozzi are single and joint employersand have had a high degreeof interrelatedand unified operationsand sharecommonmanagemenf cenkalized control

of labor relations,common ownership,common control, commonbusiness purposes, and interrelatedbusinessgoals. CLASS ACTION ALLEGATIONS 33. Pursuantto Article 9 of the New York Civil Practice Law and Rules,

Plaintiff brings this sectionas a classaction on behalf of all serversemployedby Defendantsat Mallo zzl's within six yearsprior to the filing of this Complaint. 34. AscertainableClass: The proposedClassis ascertainable in that its

memberscanbe identified and locatedusing information containedin Defendants' payroll and personnelrecords. 35. Numerosity: The potential number of personsin the Classis so numerous

that joinder of all memberswould be unfeasibleand impractical. The dispositionof their claimsthrough this classaction will benefit both the parties and this Court. The number of personsin the Classis unknown to Plaintff at this time. However, it is estimatedthat the number exceeds 100individuals. 36. Typicality: The claims of Plaintiff (for gratuities,interestand attorney's

fees)is typical of the claims of all of the other membersof the Classbecause all of them sustainedsimilar injuries and damagesarising out of Defendants'common courseof conduct in violation of Iaw, and the injuries and damages of all of the other membersof the Classwere causedby Defendants'wrongful conduct as describedin this Complaint. 37. Adequacy: Plaintiff is an adequaterepresentative of the Class;will fairly

protect the interestsof the other membersof the Class;has no interestsantagonistic to the membersof the Class;and will vigorously pursue this suit via attorneyswho are competent,skilled and experiencedin litigating mattersof this Vpe. ClassCounselis competentand experiencedin litigating large wage payment classactions.

38.

Superiority: The nafure of this actionmakesthe use of the classaction

vehicle a particularly efficient and appropriateprocedureto afford relief to Plaintiff and the other membersof the Classfor the wrongs allegedherein,asfollows: a. This caseinvolves a iarge corporateDefendantand a large number of individuals with many relatively small claimsand commonissuesof law and fact; b. If eachindividual member of the Classwas required to file an gain an individual lawsuit Defendantswould necessarily with its vastly superiorfinancial unconscionable advantagebecause, and legal resources, it would be able to exploit and overwhelm the limited resources of eachindividual member of the Class; c. Requiring eachindividuai member of the Classto pursue an of lawful individual remedy would alsodiscouragethe assertion to pursue an disinclined claimsby membersof the Classwho would be and justifiable fear of an appreciable actionagainstDefendantbecause of retaliation; d. The Prosecutionof separateactionsby the individual membersof the Class,even if possible,would createa substantialrisk of inconsistent or varying verdicts or adjudicaflonswith respectto the individual potentially membersof the CiassagainstDefendan! would establish incompatiblestandardsof conductfor Defendant,would result in legal determinationwith respectto individual membersof the Classwhich would, as a practical matter,be dispositiveof the interestof the other and/ or membersof the Classwho are not parfles to the adjudications; of the the members of would substantiallyimpair or impede the ability Classto protect their own interests; e. The claims of the individual membersof the Classmay not be sufficiently large to warrant vigorous individual prosecution thereto; consideringali of the concomitantcostsand expenses f . Furthermore,as the damagessufferedby eachindividual member of and burden of the Classmay be relatively small, the expense individual litigation would make it difficult or impossiblefor individual member of the Classto redressthe wrongs done to them, while an important public interestwill be servedby addressingthe matter as a classaction; and g. The coststo the court systemof adjudicationof suchindividualized litigation would be substantial.

39.

Existence of Predominance of Common Questionsof Factand Law:

Common questionsof law and fact exist as to membersof the Classwhich predominate over questionsaffectingonly individual membersof the Class,including, but not limited to, the following: a. Whether Defendantsunlawfully failed to distribute gratuitiesto Plaintiff and other membersof the Classin violation of N.Y. Lab. L. I 796-d; b. Whether Plaintiff and the other membersof the Classare enfitled to and damages,and if so,the meansof measuringsuch damages; c. Whether Defendantsare liable for attorneys'feesand costs. 40. Plainfffs intend to sendnotice to all membersof the Classto the extent

required by Article 9. STATEMENT OF FACTS 41,. Mallozzi. 42. Throughout Plaintiff's employment,Defendantschargedall banquet Plaintiff worked for Defendantsat various cateringhalls operatedby

customersa mandatory "20/o ServicePersonnelCharge" on top of their cateringbill. Although a reasonable customerwould have believedthat the mandatory "20/o Service PersonnelCharge" was a gratulty,Defendantsdid not distribute this gratuity lservice chargeto the servers,who were paid a flat hourly rate. 43. When askedby customersif they receivedgratuities,Plaintiff and

membersof the classwere to respond,as instructedby Defendants, that they did receivetips. 44. lossesfrom Plaintiff and membersof the classsustainedsubstantial

Defendants'withholding of gratuities.

45.

Other employeeswho worked for Defendantsand who are membersof

the Classwere subjectedto the samepoliciesand practicesconcerning the retentionof gratuities atMallozzi's Restaurant and have sustainedsimilar lossesof compensation due to Defendants'illegal actions. 46. Upon informafion and belief, the damagesof the Classexceed $1,000,000

exclusiveof interesf costs,feesand disbursements. FIRST CTAIM FOR RELIEF (Illegal Deductionsfrom Gratuities,N.Y.Lab. L. S 1,96-d) 47. Plaintiff reallegesand incorporatesby reference in all all allegations

precedingparagraphs. 48. At all times relevant,Plaintiff has been an employeewithin the meaning

of NYLL Article 6, SS190et,seq,, of and any supporting New York StateDepartunent Labor Regulations. 49. At all times relevan! Defendantshave beenan employerwithin the

meaning of NYLL, Article 6, SS190et seq., and any supporting New York State Department of Labor regulations. 50. At a1ltimes relevant Defendantsdemandedor accepted, directly or

indirectly, or retained a portion of the mandatory charges that were paid by customers purported to be gratuities for Plaintiff. 51. At all fimes relevant,Defendantshave beenagentsor officersof a

corporation within the meaning of NYLL, Article 6,5796-d and the supporting New York StateDepartment of Labor regulations. 52. By Defendants'knowing or intentional demand for, acceptance of, and/or

retention of the mandatory charges paid by customerswhen contractingwith Defendants,when such customerswere led to beiievethat suchmandatory charges

t0

would be paid to Plaintiff, Defendantshave willfully violated NYLL, Article 6 51,96-d and the supporting New York StateDeparbnentof Labor Regulations. 53. Due to Defendants'violations of the NYLL, Plaintiff is entitled to recover

from Defendantsunpaid wages,reasonable attorneys'fees, costs,and pre-judgmentand post-judgment interest. 54. damages. WHEREFORE, Plaintiff, individually and on behalf of himself and all other members of the Class,prays for relief asfollows: 1. Certificationof this caseas a classactionpursuant to CPLRSS901 and902 for the classof empioyeesdescribed herein,certificationof Plaintiff as the classrepresentative, and designationof Plaintiff's counselas Class Counsel; 2. Unpaid wages,as portions of servicechargesand/or gratuitiesretained by Defendantsthat were paid by customersand intended for Plaintiffs, and which customersreasonably believedto be gratuitiesfor Plaintiffs, pursuant to the NYLL and supporting New York StateDepartmentof Labor Regulations; 3. 4. 5. Pre-judgmentand post-judgmentinteresf as provided by law; Reasonable attorneys'feesand costsof the action,including expert fees; Appropriate equitableand injunctive relief to remedy Defendants' violations of New York law, including but not limited to an order enjoining Defendantsfrom continuing its unlawful practices; and Plaintiff and the other membersof the Classdo not seekliquidated

l1

6.

Suchother injunctive and equitablerelief as the Court may deem just and proper. necessary,

Dated:March 29,2013

Respectfully submitted, & KIRSCHENBAUM LLP JOSEPH

D. Maimon Kirschenbaum

su' ['VA-

tlrl

Matthew Kadushan 233Broadway,5'hFloor New York NY 10279

(272)688-s640

N. Tischler Jessica Floor 488Madison Avenue, 11'h New York, New York 1,0022 (212) sB3-9500 Attorney sfor Plaintiff

I2