Supreme Court, New York County, June 6, 2022

James F. Sullivan, New York City, for plaintiff.

DeCotiis, FitzPatrick, Cole & Giblin, LLP, Paramus, New Jersey (Justin D. Santagata of counsel), for defendant.

I. Background

Plaintiff worked as a retail associate for defendant from{**78 Misc 3d at 364} October 1, 2019, to October 30, 2020. Plaintiff moves for summary judgment, CPLR 3212 (b), seeking liquidated damages, interest, and attorneys' fees under Labor Law § 198 (1-b) for defendant's alleged violations of Labor Law §§ 191 (1) (a) and 195 (3). The court grants summary judgment to plaintiff in part as follows.

II. Labor Law § 191

Labor Law § 191 (1) (a) (i) provides that "[a] manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned." Manual workers are defined as "employees who spend more than 25 percent of their working time performing physical labor." (Beh v Community Care Companions Inc., 2021 WL 3914297, *3, 2021 US Dist LEXIS 197316, *6-9 [WD NY, Feb. 1, 2021, No. 19-CV-1417-JLS-HBS], report and recommendation adopted 2021 WL 3914320, 2021 US Dist LEXIS 130723 [WD NY, June 23, 2021, No. 19-CV-1417-JLS-HBS]; NY St Dept of Labor Op No. RO-09-0066 [May 21, 2009].) Manual labor is work such as "stocking shelves or doing yard work." (Matter of Angello v Labor Ready, Inc., 7 NY3d 579, 581 [2006].) Labor Law § 191 (1) (d), in contrast, provides that a "clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer."

The parties do not dispute that defendant paid plaintiff every two weeks, but she [*2]maintains that she qualified as a manual worker because her duties included "working the cash register, preparing coffee, restocking shelves, assisting customers, taking customer orders, and keeping the store clean." (Aff of Cheyenne E. Davis ¶ 5.) In opposition, John Pernini, defendant's general manager, and Rhea Manansala, defendant's director of human resources, both attest that retail associates primarily operate the cash register and serve small pastries, and other employees are responsible for preparing coffee, cooking, stocking inventory, and cleaning. Pernini and Manansala concede that retail associates occasionally may prepare coffee when food preparation staff are occupied, but they both insist that any coffee preparation amounts to only 15-20 minutes of a retail associate's shift of eight hours. Pernini and Manansala further maintain that any cleaning by a retail associate is limited to wiping down counters at the end of a shift, for 20-30 minutes per shift.{**78 Misc 3d at 365}

Pernini and Manansala may possess personal knowledge of a retail associate's duties, but they provide no basis to establish their personal knowledge of the duties that plaintiff performed during her shifts. (Shultz v Cambridge Dev., L.L.C., 200 AD3d 624, 624 [1st Dept 2021]; Blackstock v Accede Inc., 194 AD3d 476 [1st Dept 2021]; Yaffe v Shkreli, 187 AD3d 592, 592 [1st Dept 2020]; Saunders v J.P.Z. Realty, LLC, 175 AD3d 1163, 1164 [1st Dept 2019].) Although defendant attempted to remedy this deficiency through a supplemental affidavit, it was submitted as a surreply after this motion's return date. (Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010].)

[1] Nevertheless, plaintiff's own affidavit leaves a factual question whether plaintiff worked as a manual or clerical worker. Plaintiff attests that she spent her days "engaged in physical labor" (Davis aff ¶ 5) but not that the physical labor constituted at least 25% of her duties. Nor does plaintiff distinguish her time spent on physical labor from her time spent assisting customers and taking customer orders, categorized as clerical work under Labor Law § 191 (1) (d), or working as a cashier, which likely was largely stationary, indistinguishable from working at a computer or assisting customers, and thus clerical as well. Since the extent of plaintiff's physical duties remain undefined, plaintiff fails to establish her entitlement to summary judgment on her Labor Law § 191 (1) claim.

III. Labor Law § 195 (1) (a)

Under Labor Law § 195 (1) (a), New York employers must provide an employee, in both English and the employee's primary language, a written wage notice of the employer's business information and the employee's salary information, including the employee's rate and frequency of pay. (12 NYCRR 146-2.2; Chichinadze v BG Bar Inc., 517 F Supp 3d 240, 259 [SD NY 2021].) An employer's failure to provide this information within 10 business days of the employee's first day of employment entitles the employee to damages of $50 per day until a wage notice is provided, up to a maximum of $5,000. (Labor Law § 198 [1-b]; Chichinadze v BG Bar Inc., 517 F Supp 3d at 259.) Plaintiff attests that she never received a wage notice from defendant pursuant to Labor Law § 195 (1) (a) after she started her employment with defendant October 1, 2019. Defendant contends that plaintiff received the required wage notice through defendant's scheduling software program, "HomeBase," since plaintiff signed up for HomeBase to receive her work schedule. Defendant further{**78 Misc 3d at 366} insists the wage notice may be obtained through additional disclosure, which requires this motion to be denied.

[2] Contrary to defendant's position, "[t]he employer has the burden of proving compliance [*3]with the notification provisions" (12 NYCRR 146-2.2 [d]) which defendant now must show to rebut plaintiff's attestation. (CPLR 3212 [b].) Defendant may demonstrate its compliance with Labor Law § 195 (1) (a) through a written acknowledgment of receipt, signed and dated by plaintiff, and received and retained by defendant. (Labor Law § 195 [1] [a]; 12 NYCRR 146-2.2 [c].) Yet defendant fails to produce an acknowledgment of receipt or any other admissible evidence that plaintiff ever received a wage notice. (Tezoco v GE & LO Corp., 199 AD3d 541, 543 [1st Dept 2021].) Even assuming a wage notice was accessible to plaintiff during her employment, defendant further fails to show that she received the notice within 10 days of being hired or that plaintiff ever signed an acknowledgment of receipt. (Labor Law § 195 [1] [a]; 12 NYCRR 146-2.2 [c].) Since defendant is unable to show that plaintiff received any wage notice during her employment, plaintiff is entitled to the full statutory award of $5,000. (Labor Law § 195 [1] [a]; Tezoco v GE & LO Corp., 199 AD3d at 543.)

IV. Labor Law § 195 (3)

[3] To state an actionable claim under Labor Law § 195 (3), plaintiff must allege that defendant failed to provide a statement with each paycheck that included:

"the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; . . . and net wages." (Labor Law § 195 [3]; see Tezoco v GE & LO Corp., 199 AD3d at 543.)

Plaintiff maintains that defendant's wage statements were inaccurate solely because defendant paid plaintiff biweekly instead of weekly, so the statements doubled her salary information. Yet plaintiff points to no missing information from defendant's wage statements, which plaintiff admits she received with each paycheck, and which display all the information required under the statute. The statute provides a remedy only for enumerated omissions from defendant's wage statements, not for potentially inaccurate information. Thus, even if{**78 Misc 3d at 367} plaintiff ultimately qualifies as a manual laborer and the statements turn out to be erroneous because they doubled her salary, such an error would still not violate Labor Law § 195 (3).

Moreover, Labor Law § 198 (1-d) provides that an employer's "complete and timely payment of all wages" shall be an affirmative defense to a Labor Law § 195 (3) claim. (Ahmed v Morgan's Hotel Group Mgt., LLC, 160 AD3d 555, 556 [1st Dept 2018].) Defendant's authenticated copies of plaintiff's wage statements show that, if plaintiff does not qualify as a manual laborer, defendant timely paid plaintiff her full wages every two weeks (id.) which plaintiff does not dispute. In any event, because the statements were complete as explained above, the court grants summary judgment to defendant dismissing plaintiff's Labor Law § 195 (3) claim. (CPLR 3212 [b]; Kattan v 119 Christopher LLC, 204 AD3d 470, 470 [1st Dept 2022]; Vargas v 1166 LLC, 201 AD3d 614, 615 [1st Dept 2022]; Tomfol Owners Corp. v Hernandez, 201 AD3d 453, 454 [1st Dept 2022]; Birnbaum v Goldenberg Consulting Group, Inc., 201 AD3d 432, 432 [1st Dept 2022].)

V. Conclusion

For the reasons set forth above, the court grants plaintiff's motion for summary judgment that defendant violated Labor Law § 195 (1) (a) and awards plaintiff statutory damages of[*4]$5,000. (CPLR 3212 [b], [e]; Labor Law § 198 [1-b].) The court also grants summary judgment to defendant dismissing plaintiff's claim for violation of Labor Law § 195 (3). (CPLR 3212 [b].)

The court denies the remainder of plaintiff's motion.