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Sorto v. Diversified Maint. Sys. LLC

Private Right of Action Exists for Violation of NYLL §191 Payment Frequency Requirement

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MEMORANDUM & ORDER Plaintiff Carolina Sorto (“Plaintiff”), individually and on behalf of all others similarly situated, commenced this proposed class action against defendant Diversified Maintenance Systems, LLC (“Defendant”) asserting claims under various provisions of New York Labor Law. (Compl., ECF No. 1; Am. Compl., ECF No. 13.) By Report and Recommendation dated November 15, 2020, Magistrate Judge Steven I. Locke recommended that the Court deny Defendant’s motion to dismiss the Amended Complaint’s first cause of action seeking relief under New York Labor Law §191 (“Section 191″). (“R&R,” ECF No. 24.) Defendant timely filed objections. (Def. Obj., ECF No. 25; Pl. Obj. Opp., ECF No. 27.) For the following reasons, Defendant’s objections are OVERRULED, the R&R is ADOPTED, and Defendant’s partial motion to dismiss is DENIED. BACKGROUND I. Facts1 The Court presumes the parties’ familiarity with the facts as set forth in the R&R and recites only those necessary to adjudicate the pending motion. (See R&R at 2.) By way of brief background, Defendant provides maintenance and cleaning services to department stores throughout New York. Defendant employed Plaintiff as an hourly, manual worker from approximately September 2019 through February 26, 2020. Defendant allegedly paid Plaintiff (and similarly situated manual workers) on a bi-weekly basis and not within “seven calendar days after the end of the week in which the wages are earned,” as required under Section 191. II. Procedural History and the R&R Plaintiff initiated this action on March 10, 2020 and filed an Amended Complaint on May 27, 2020 asserting: (1) a frequency of pay claim in violation of Section 191 (the “First Cause of Action”); (2) a spread-of-hours claim in violation of New York Labor Law §650 et seq. and 12 NYCRR §142-2.4; (3) a wage notice claim in violation of New York Labor Law §195(1); and (4) a wage statement claim in violation of New York Labor Law §195(3). (See Am. Compl.

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