This is a putative class action law suit which arises out of a dispute concerning the compensation of waiters, servers and busboys who are employed to work banquets and special event dinners held at two banquet facilities which defendant Pier Sixty, LLC ("Pier Sixty") operates within the Chelsea Piers complex in Manhattan. Pier Sixty is a limited liability company whose sole members are the defendant AK Pier Sixty LLC and nonparty Chelsea Piers, L.P. The defendant James Kirsch is a principal member of AK Pier Sixty LLC, a Pier Sixty affiliate which allegedly approves Pier Sixty's expenditures and budgets.

The plaintiffs worked as temporary banquet servers at Pier Sixty through the defendant Gotham Personnel, a staffing agency. In this action, the plaintiffs allege that the defendants have violated Labor Law §196-d, which provides that " No employer . . . shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." The plaintiffs claim that they acted as servers at events held by the defendants and that even though the defendants imposed a mandatory gratuity charge to their customers at these events, they never received any portion of such a charge.

Previously, Pier Sixty had moved to dismiss the complaint as against it, pursuant to CPLR 3211(a)(7), for failure to state a cause of action. It argued that the plaintiffs fell outside of the statutory ambit of Labor Law § 196-d since they were not employees of Pier Sixty but merely independent contractors who were assigned by Gotham to work at Pier Sixty events. By decision and order dated January 12, 2009, this court denied the motion to dismiss, finding that the determination of whether a worker is an employee of the defendant within the meaning of Labor Law § 196-d requires a factual assessment of the degree of control exercised by Pier Sixty and that such an assessment could not be made on a preanswer motion to dismiss. In that same decision, the court also denied the motion to dismiss brought by the other defendants, finding that the documentary [*2]evidence on which the motion was based did not conclusively establish a defense to the plaintiffs' claims. Following the completion of discovery, Pier Sixty, AK Pier Sixty and James Kirsch now move for summary judgment dismissing the complaint as against them.

Discussion

On its motion, Pier Sixty once again argues that the claims asserted against it must be dismissed because it was not the plaintiffs' employer. As the court stated in its previous decision, the critical inquiry in determining whether an employment relationship exists under Labor Law § 196-d pertains to the degree of control exercised by the putative employer over the results produced or the means used to achieve that result. See Bynog v. Cipriani Group, 1 NY3d 193, 198 (2003). In Bynog, the Court of Appeals identified a number of factors relevant to assessing control, including whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits from the putative employer, (4) was on the putative employer's payroll and (5) was on a fixed schedule. See Bynog v. Cipriani Group, 1 NY3d at 198; Lazo v. Mak's Trading Co., 84 NY2d 896, 897 (1994). Pier Sixty contends that the record in this action clearly indicates that an assessment of these factors establishes, as a matter of law, that the plaintiffs were not employees of Pier Sixty. According to Pier Sixty, it is Gotham which (1) is solely responsible for the hiring and firing of its banquet servers, (2) fixes their work schedules, (3) determines the terms and conditions of their employment, (4) determines their rate of pay and provides their compensation and (5) maintains all of their employment records. Pier Sixty also contends that the Gotham servers worked at their own convenience since they were free to reject assignments to Pier Sixty and accept employment from other establishments. Finally, Pier Sixty insists that there are numerous other factors, not specifically mentioned by the Court of Appeals in Bynog, which weigh against a finding that Pier Sixty employed the plaintiffs, including the fact that Pier Sixty (1) did not provide the plaintiffs with their uniform or tools, (2) did not provide the plaintiffs with the requisite workers' compensation insurance and (3) only provided plaintiffs with minimal instruction and/or supervision.

Although there may be a number of factors which reflect a lack of control over the plaintiffs, there are also a number of significant ways in which Pier Sixty did exercise such control. As the court pointed out in its original decision, Pier Sixty apparently required its temporary workers to attend a four-week training session, had supervisors present during events to offer instruction and correction to the temporary employees and required the temporary employees to wear a jacket which Pier Sixty provided. On this summary judgment motion, Pier Sixty has not offered any evidence to contradict these earlier findings. On the contrary, additional evidence has been adduced which indicates that Pier Sixty's supervision of the temporary workers was significantly more extensive than it suggests. Thus, there was deposition testimony, both from plaintiffs and from witnesses produced by Pier Sixty, which indicate that Pier Sixty captains continuously instructed and corrected the temporary employees throughout the course of an event and had the authority to send workers home for failing to follow instructions and/or for infractions of Pier Sixty's rules. There is also evidence which suggests that Pier Sixty had control over the Gotham servers' rate of payment and maintained their employment time records.

Notably, unlike Bynog, where the workers were supervised at events by a representative of [*3]their temporary employment agency, 1 NY3d at 199, there is no evidence in this case which suggests that Gotham had any role in controlling or supervising its workers' performance of their duties while at Pier Sixty. Indeed, no Gotham representative or supervisor was present during the course of a Pier Sixty event and the plaintiffs could thus only be supervised or controlled by Pier Sixty employees. Under the circumstances, there is an issue of fact as to whether the plaintiffs were employees of Pier Sixty within the meaning of Labor Law §196-d. Pier Sixty's motion for summary judgment must therefore be denied.

As to defendants AK Pier Sixty and James Kirsch, plaintiffs argue that these defendants should be deemed their employers because of their alleged "operational control" over Pier Sixty's general business activities and operations. This argument, however, is inconsistent with the Court of Appeals analysis in Bynog which, as already discussed, held that the proper analysis in determining liability under Labor Law § 196-d should be whether the putative employer exercised any control over the workers in question. See Bynog v. Cipriani Group, 1 NY3d at 198.

In this respect, there is no evidence that either Kirsch or AK Pier Sixty took any active role either in supervising the plaintiffs' work or in setting the terms and conditions of the plaintiffs' employment at Pier Sixty. Indeed, the plaintiffs do not dispute that Pier Sixty had its own general manager who maintained all of the operational control over its events and did not receive management directives from either Kirsch or any of the other AK Pier Sixty members. Although Kirsch may have helped found Pier Sixty and clearly had a significant role in its initial operations, the plaintiffs do not even suggest that he exercised any degree of control over its day to day operations, much less the results of the plaintiff's work or the methods used to achieve those results. The complaint must therefore be dismissed as against these defendants.

Accordingly, the defendants' motion for summary judgment is granted to the extent that the complaint is hereby dismissed as against the defendants AK Pier Sixty and James Kirsch. The motion is otherwise denied.

The parties shall appear before the court in Room 412, 60 Centre Street, New York, New York on November 3, 2010 at 10:30 a.m. for a settlement conference.

ENTER ORDER

Dated: 9/30/10Marylin G. Diamond, J.S.C.