Grant v. GLOBAL AIRCRAFT DISPATCH, INC., 2024 NY Slip Op 183 – NY: Appellate Div., 2nd Dept. 2024:
“In Vega v CM & Assoc. Constr. Mgt., LLC (175 AD3d 1144),
the Appellate Division, First Department, considered the question now
before this Court—whether Labor Law § 198(1-a) expressly provides a
private right of action for a manual worker paid on a biweekly basis in
violation of Labor Law § 191(1)(a) to recover liquidated damages,
interest, and attorneys’ fees. The First Department determined that such
a private right of action exists, concluding that the “wage claim[s]”
to which section 198 refers include not only instances of nonpayment or
partial payment of wages, but also late payment of wages (see Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145-1146).
The First Department reasoned that “[t]he moment that an employer fails
to pay wages in compliance with section 191(1)(a), the employer pays
less than what is required,” thereby permitting recovery for
underpayment under section 198(1-a) (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145).
The First Department, as the plaintiff does here, equated the biweekly
pay schedule with a violation and cure, the cure serving merely as an
affirmative defense, which could not “eviscerate the employee’s
statutory remedies” (id.).
We respectfully disagree with the reasoning of Vega and
decline to follow it. The plain language of Labor Law § 198(1-a)
supports the conclusion that this statute is addressed to nonpayment and
underpayment of wages, as distinct from the frequency of payment (see Gutierrez v Bactolac Pharm., Inc., 210 AD3d 746, 747), and we do not agree that payment of full wages on the regular biweekly payday constitutes nonpayment or underpayment.
The first sentence of Labor Law § 198(1-a) refers to an employee being “paid less than the wage
to which he or she is entitled” (emphasis added). “Wages” is defined as
“the earnings of an employee for labor or services rendered” (id.
§ 190[1]). The natural import of this phrase, as well as the later,
related reference to an employee recovering “the full amount of any underpayment” (id.
§ 198[1-a] [emphasis added]), is that an employee has received a lesser
amount of earnings than agreed upon, not that the employee received the
agreed-upon amount one week later, on the regular payday.
Moreover, acknowledging that he was paid his wages in full, the
plaintiff here seeks only liquidated damages (as well as interest and
attorneys’ fees). However, section 198(1-a) provides for liquidated
damages as an “additional amount,” clearly contemplating recovery of an
underpayment as the primary, foundational remedy. In other words, under
the statute as written, the recovery of liquidated damages is dependent
upon the recovery of an underpayment. Thus, absent an underpayment or
nonpayment, liquidated damages are not available. While we agree with
the proposition set forth by our dissenting colleague that “[m]oney
later is not the same as money now” (Georgiou v Harmon Stores, Inc., 2023 WL 112805,
*1, 2022 US Dist LEXIS 234643, *3 [ED NY, No. 2:22-cv-02861-BMC]
[internal quotation marks omitted]), or, in other words, that late
payment is injurious to workers, we nevertheless are bound to “give
effect to the plain meaning of [the] words used” in the statute and may
not “legislate under the guise of interpretation” (People v Finnegan, 85 NY2d 53, 58 [internal quotation marks omitted]).
The First Department’s reasoning that the “moment an employer fails
to pay wages in compliance with section 191(1)(a), the employer pays
less than what is required” (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145), seems to be based upon the premise that a payment was due
after the first week of the biweekly pay period and that the employer
therefore failed to pay the wages due after that first week. However,
where an employer uses a regular biweekly pay schedule, that employer’s
payment of wages is due, under the employment agreement between the
employer and an employee, every two weeks. Such an agreed-upon pay
schedule between an employer and a manual worker violates the frequency
of payments requirement (see Labor Law § 191[2]), but is not
equivalent, in our view, with a nonpayment or underpayment of wages
subject to collection with an additional assessment of liquidated
damages. The employer’s payment of full wages on the regular payday is
crucial and distinguishes this case from federal cases under the Fair
Labor Standards Act in which courts have concluded that employers were
liable for liquidated damages for violating the prompt payment
requirement implied in that law by, for example, paying overtime
compensation two years after it was earned (see Brooklyn Savings Bank v O’Neil, 324 US 697, 700, 707-708), or failing to pay on the regular payday (see Biggs v Wilson, 1 F3d 1537, 1538 [9th Cir]; cf. Rogers v City of Troy, N.Y., 148 F3d 52, 55-57 [2d Cir]).
As to the string of federal cases relied upon by our dissenting
colleague to support the conclusion that Labor Law § 198(1-a) provides
an express private right of action for a violation of section 191, those
cases merely adopted the holding of Vega as the only appellate-level state law on point (see e.g. Georgiou v Harmon Stores, Inc., 2023 WL 112805, *6, 2022 US Dist LEXIS 234643, *14; Confusione v Autozoners, LLC, 2022 WL 17585879, 2022 US Dist LEXIS 223438 [ED NY, No. 21-CV-00001 (JMA) (AYS)]; Mabe v Wal-Mart Assoc., Inc., 2022 WL 874311,
*1, 2022 US Dist LEXIS 53492, *3 [ND NY, No. 1:20-cv-00591] [“As a
federal court applying state law, we are generally obliged to follow the
state law decisions of state intermediate appellate courts . . . in the
absence of any contrary New York authority or other persuasive data
establishing that the highest court of the state would decide otherwise”
(internal quotation marks omitted)]). Thus, these federal decisions
provide little substantive support for the reasoning and determination
set forth in Vega. Indeed, while concluding that they were bound to adopt Vega, some of these courts expressed doubt as to the correctness of that decision (see Georgiou v Harmon Stores, Inc., 2023 WL 112805, *4-6, 2022 US Dist LEXIS 234643, *10-14; Espinal v Sephora USA, Inc., 2022 WL 16973328, *5-6, 2022 US Dist LEXIS 208400, *11-14 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)], report and recommendation adopted by 2023 WL 2136392, 2023 US Dist LEXIS 28661 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)]; Harris v Old Navy, LLC, 2022 WL 16941712, *7, 2022 US Dist LEXIS 206664, *18 [SD NY, No. 21 Civ. 9946 (GHW) (GWG)], report and recommendation adopted by 2023 WL 2139688, 2023 US Dist LEXIS 28419 [SD NY, No. 1:21-cv-9946-GHW]).
Notably, after the First Department decided Vega, the Court of Appeals decided Konkur v Utica Academy of Science Charter Sch. (38 NY3d 38),
in which it declined to conclude that an employer’s violation of the
prohibition against requesting or demanding a “return, donation or
contribution” of any part of an employees’ wages (i.e., kickbacks)
(Labor Law § 198-b[2]) constituted a wage claim within the meaning of
Labor Law § 198(1-a) (see Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 44).
Thus, the mere fact that a violation of the Labor Law had the effect of
reducing employees’ wages (even permanently) did not bring that Labor
Law violation under the auspices of Labor Law § 198(1-a), which covers
nonpayment and partial payment of wages.[1]
Interpreting Labor Law § 198(1-a) as covering nonpayment and partial
payment of wages, as distinct from the frequency-of-pay violation
alleged here, is consonant with its legislative history. Subdivision 1
of section 198—permitting an additional award of costs, above ordinary
costs, in an action instituted upon a wage claim by an employee or the
Commissioner—was added in 1937, along with provisions allowing employees
to assign wage claims to the Commissioner (see L 1937, ch 500).
The legislation was aimed at easing the burden on and expense to
employees (as well as the Legal Aid Society, which often represented
them) of instituting actions to collect on small wage claims (see
Letter from George Lion Cohen, Bill Jacket, L 1937, ch 500 at 4-5). It
essentially empowered the Commissioner to take assignment of private
causes of action (alleging breach of contract) already possessed by the
employees, not created by statute.
In 1967, section 1-a was added, allowing an employee or the
Commissioner to obtain reasonable attorneys’ fees in wage collection
actions and requiring employers to pay an additional amount of
liquidated damages if the employer’s failure to pay the wage was willful
(see L 1967, ch 310). As explained at the time of its enactment:
“A failure or refusal to pay any employee his wages and to put him to
the trouble of hiring an attorney to pursue the payment of wages or to
impose upon the public to pursue this type of claim through the courts
is action that can only merit public condemnation” (Rep of Comm on Labor
Law, Bill Jacket, L 1967, ch 310 at 10). The fact that recovery was
limited to “the amount of such underpayment,” without liquidated
damages, was deemed to have encouraged employers “to violate the statute
in the expectation that if they [were] caught, their sole obligation
[would] be to pay the back wages without interest” (Mem of Industrial
Commissioner, Bill Jacket, L 1967, ch 310 at 4).
The willfulness requirement for liquidated damages was replaced in
2009 so as to place the burden upon employers to show good faith, and
the Commissioner was given the authority “to bring a court action or
administrative proceeding to collect wage underpayments” (Assembly Mem
in Support, Bill Jacket, L 2009, ch 372 at 5). The purpose of those
amendments was to benefit “low-wage workers struggling to support their
families on the minimum wage” in the “many cases” in which “employers
[had] failed for years to pay even the well-publicized minimum wage
rate” (id. at 6). Finally, Labor Law § 198(1-a) was further
amended in 2010, as part of the Wage Theft Prevention Act, to increase
the amount of liquidated damages and to require courts to allow
employees “to recover the full amount of any underpayment” (L 2010, ch
564, § 7). The bill was necessary, the New York State Department of
Labor explained, because “[c]urrent penalties for wage theft [were] so
low that there [was] a financial incentive to underpay workers . . . [,]
creat[ing] an environment in which a large number of employees in the
state [were] earning less than minimum wage . . . while others [were]
paid less than their agreed-upon wage” (Letter from NY St Dept of Labor,
Bill Jacket, L 2010, ch 564 at 9).
In sum, this legislative history reveals that Labor Law § 198(1-a)
was aimed at remedying employers’ failure to pay the amount of wages
required by contract or law. There is no reference in the legislative
history of Labor Law § 198 to the frequency or timing of wage payments,
and nothing to suggest that the statute was meant to address
circumstances in which an employer pays full wages pursuant to an
agreed-upon, biweekly pay schedule that nevertheless does not conform to
the frequency of payments provision of law.
Accordingly, we conclude that Labor Law § 198 does not expressly
provide for a private right of action to recover liquidated damages,
prejudgment interest, and attorneys’ fees where a manual worker is paid
all of his or her wages biweekly, rather than weekly, in violation of
Labor Law § 191(1)(a).
To the extent that the plaintiff contends that such a private right
of action should be implied, we reject that contention. A private right
of action cannot be implied from the statutory provisions and their
legislative history unless, among other factors, “creation of such a
right would be consistent with the legislative scheme” (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 41 [internal quotation marks omitted]). In Konkur,
the Court of Appeals concluded that a private right of action to
recover damages for a violation of Labor Law § 198-b, prohibiting
kickbacks, could not be implied because the statutory scheme “expressly
provide[d] two robust enforcement mechanisms, `indicating that the
legislature considered how best to effectuate its intent and provided
the avenues for relief it deemed warranted'” (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 43, quoting Cruz v TD Bank, N.A., 22 NY3d 61, 71).
In other words, the Court determined that, “in the face of significant
enforcement mechanisms provided for in the statute,” a private right of
action would not be consistent with the legislative scheme (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 42).
Since multiple official enforcement mechanisms for violations of Labor
Law § 191 are similarly provided, we conclude that, under Konkur, a private right of action cannot be implied (see Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 43).
Consequently, the Supreme Court properly granted that branch of the
defendant’s motion which was to dismiss the first cause of action.
In light of our determination, we need not reach the parties’ remaining contentions.
IANNACCI, J.P., CHAMBERS and WARHIT, JJ., concur.
CHRISTOPHER, J., concurs in part and dissents in part, and votes to
modify the order, on the law, by deleting the provision thereof granting
those branches of the defendant’s motion which were pursuant to CPLR
3211(a)(7) to dismiss the first cause of action insofar as asserted by
the plaintiff individually and so much of the first cause of action as
sought to recover interest on behalf of others similarly situated, and
substituting therefor a provision denying those branches of the motion,
and, as so modified, to affirm the order insofar as appealed from, with
the following memorandum:
I respectfully disagree with the conclusions reached by my colleagues
in the majority to affirm the order insofar as appealed from. In my
view, that branch of the defendant’s motion which was pursuant to CPLR
3211(a)(7) to dismiss the first cause of action insofar as asserted by
the plaintiff individually should have been denied, as Labor Law §
198(1-a) expressly provides a private right of action for a violation of
Labor Law § 191, which right may also be implied.
Labor Law § 191, entitled “Frequency of payments,” provides, in
pertinent part, 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” (id. § 191[1][a][i]). Labor Law § 198(1-a)
provides that: “In any action instituted in the courts upon a wage claim
by an employee or the commissioner in which the employee prevails, the
court shall allow such employee to recover the full amount of any underpayment,
all reasonable attorney’s fees, prejudgment interest as required under
the civil practice law and rules, and, unless the employer proves a good
faith basis to believe that its underpayment of wages was in
compliance with the law, an additional amount as liquidated damages
equal to one hundred percent of the total amount of the wages found to
be due” (emphasis added).
This appeal presents the question of whether Labor Law § 198(1-a)
expressly provides a private right of action for a manual worker paid on
a biweekly basis in violation of Labor Law § 191(1)(a) to recover
liquidated damages, interest, and attorneys’ fees. The Appellate
Division, First Department, considered this question in Vega v CM & Assoc. Constr. Mgt., LLC (175 AD3d 1144)
and concluded that such a private right of action exists, and that the
actionable “wage claim[s]” to which Labor Law § 198 refers include not
only instances of nonpayment or partial payment of wages, but also the
late payment of wages (see Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145-1146).
The First Department determined that, contrary to the defendant
employer’s argument that Labor Law § 198 provides remedies only in the
event of nonpayment or partial payment of wages, “the plain language of
[Labor Law § 198(1-a)] indicates that individuals may bring suit for any
`wage claim’ against an employer” (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1145).
Further, the First Department concluded that “[t]he remedies provided
by section 198(1-a) apply to violations of article 6, and section
191(1)(a) is a part of article 6” (id. [citation and internal quotation marks omitted]).
The Vega court reasoned that “[t]he moment that an employer
fails to pay wages in compliance with section 191(1)(a), the employer
pays less than what is required” (id.). Thus, “the term
underpayment [in section 198(1-a)] encompasses the instances where an
employer violates the frequency requirements of section 191(1)(a) but
pays all wages due before the commencement of an action” (id.).
Further, an employer may not attempt “to cure a violation and evade the
statute by paying the wages that are due before the commencement of an
action” (id.). While an “employer may assert an affirmative
defense of payment if there are no wages for the `employee to recover’
(Labor Law § 198[1-a]),” the fact that an employee was paid all the
wages he or she earned “does not eviscerate the employee’s statutory
remedies” (id.).
The majority declines to follow the Vega decision and
determines that Labor Law § 198 does not expressly provide a right of
action for a violation of Labor Law § 191(1)(a). Contrary to the Vega
decision, the majority reasons that where an employer uses a regular
biweekly pay schedule, such an agreed-upon pay schedule between an
employer and a manual worker violates the frequency of payments
requirement under Labor Law § 191(2), but is not equivalent to a
nonpayment or underpayment of wages permitting recovery under Labor Law §
198(1-a).
I respectfully disagree. In my view, the late payment of wages is
tantamount to a nonpayment or underpayment of wages, which permits
recovery under Labor Law § 198(1-a). “`Money later is not the same as
money now'” (Georgiou v Harmon Stores, Inc., 2023 WL 112805, *1, 2022 US Dist LEXIS 234643, *3 [ED NY, No. 2:22-cv-02861-BMC], quoting Stephens v U.S. Airways Group, Inc., 644 F3d 437, 442 [DC Cir, Kavanaugh, J., concurring]).
“The delay in receiving wages stripped [the] plaintiff[ ] of the
opportunity to use funds to which [he was] legally entitled resulting in
an injury sufficiently analogous to harms traditionally recognized at
common law” (Georgiou v Harmon Stores, Inc., 2023 WL 112805,
*1, 2022 US Dist LEXIS 234643, *3 [internal quotation marks omitted]).
“Not having money you’re supposed to have means that the time value of
money has decreased” (Georgiou v Harmon Stores, Inc., 2023 WL 112805, *2, 2022 US Dist LEXIS 234643, *4).
To the extent that the majority cites to this Court’s decision in Gutierrez v Bactolac Pharm., Inc. (210 AD3d 746)
to support the conclusion that Labor Law § 198(1-a) is addressed to
nonpayment and underpayment of wages, as distinct from the frequency of
payment, such reliance is misplaced. In Gutierrez, this Court
affirmed so much of an order as directed dismissal of a cause of action
alleging violations of Labor Law § 191, wherein the plaintiff was not
claiming a violation regarding frequency of pay, but rather was seeking
to recover damages for unpaid wages. Gutierrez did not determine
that a violation of Labor Law § 191(1)(a) does not result in unpaid
wages or underpaid wages for purposes of whether a private right of
action exists under Labor Law § 198(1-a).
The majority also relies upon the Court of Appeals’ decision in Konkur v Utica Academy of Science Charter Sch. (38 NY3d 38)
to support its conclusion that Labor Law § 198(1-a) does not expressly
provide for a private right of action for a violation of Labor Law §
191. In Konkur, the Court of Appeals held that a private right of
action was unavailable for Labor Law § 198-b claims concerning wage
kickbacks. The Court found that the statute did not provide an express
private right of action, and “no such freestanding private right of
action was intended by the legislature” (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 39). The majority deduces from Konkur
that “the mere fact that a violation of the Labor Law had the effect of
reducing employees’ wages (even permanently) did not bring that Labor
Law violation under the auspices of Labor Law § 198(1-a), which covers
nonpayment and partial payment of wages.”
I find instructive the reasoning in several federal decisions. “Although the reasoning of Konkur does echo issues raised” in the instant case, Konkur involved a different and unrelated statute (Espinal v Sephora USA, Inc., 2022 WL 16973328, *9, 2022 US Dist LEXIS 208400, *22 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)], report and recommendation adopted by 2023 WL 2136392, 2023 US Dist LEXIS 28661 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)]). “On its face, Konkur
does not stand for the propositions that the late payment of wages is
not the underpayment of wages, or that the late payment of wages is not a
wage claim privately actionable under Section 198(1-a). Thus, Konkur does not directly contradict the Vega Court’s determination that the late payment of wages is an underpayment of wages” (Mabe v Wal-Mart Assoc., Inc., 2022 WL 874311, *6, 2022 US Dist LEXIS 53492, *17 [ND NY, No. 1:20-cv-00591]; see Rosario v Icon Burger Acquisition LLC, 2022 WL 17553319, *5, 2022 US Dist LEXIS 222321, *11-12 [ED NY, No. 21-CV-4313 (JS) (ST)]).
Following the Court of Appeals’ decision in Konkur, many
federal district courts have addressed the instant issue of whether
Labor Law § 198(1-a) provides a private right of action for a violation
of Labor Law § 191. These courts have considered Vega in light of Konkur, but have adopted Vega‘s
determination that the late payment of wages constitutes an
underpayment of wages, and that Labor Law § 198(1-a) provides a private
right of action for violations of Labor Law § 191 (see Georgiou v Harmon Stores, Inc., 2023 WL 112805, *2-6, 2022 US Dist LEXIS 234643, *5-14; Confusione v Autozoners, LLC, 2022 WL 17585879, *1, 2022 US Dist LEXIS 223438, *3-4 [ED NY, No. 21-CV-00001 (JMA) (AYS)]; Rosario v Icon Burger Acquisition LLC, 2022 WL 17553319, *4-5, 2022 US Dist LEXIS 222321, *10-15; Day v Tractor Supply Co., 2022 WL 19078129, *4-7, 2022 US Dist LEXIS 217201, *10-19 [WD NY, No. 22-CV-489-JLS-MJR], report and recommendation adopted by 2023 WL 2560907, 2023 US Dist LEXIS 45489 [WD NY, No. 22-CV-489 (JLS) (MJR)]; Rath v Jo-Ann Stores, LLC, 2022 WL 17324842, *3-8, 2022 US Dist LEXIS 214798, *6-19 [WD NY, No. 21-CV-791S]; Espinal v Sephora USA, Inc., 2022 WL 16973328, *5-9, 2022 US Dist LEXIS 208400, *11-23; Harris v Old Navy, LLC, 2022 WL 16941712, *5-10, 2022 US Dist LEXIS 206664, *14-27 [SD NY, No. 21 Civ. 9946 (GHW) (GWG)], report and recommendation adopted by 2023 WL 2139688, 2023 US Dist LEXIS [SD NY, No. 1:21-cv-9946-GHW]; Levy v Endeavor Air Inc., 638 F Supp 3d 324, 331-332 [ED NY]; Mabe v Wal-Mart Assoc., Inc., 2022 WL 874311, *8, 2022 US Dist LEXIS 53492, *20).
The majority also concludes that a private right of action under
Labor Law § 198(1-a) may not be implied because “multiple official
enforcement mechanisms for violations of Labor Law § 191 are [already]
provided” for. The majority further cites to Konkur to support this conclusion. However, I conclude, as Justice Rivera opined in her dissenting opinion in Konkur
regarding Labor Law § 198-b, that in the instant matter, the fact that
other enforcement mechanisms are available to the plaintiff for
violations of Labor Law § 191 “does not mean that the legislature
foreclosed a private right of action [for this section] or that
recognizing such a right would be at odds with the statutory scheme” (Konkur v Utica Academy of Science Charter Sch., 38 NY3d at 52 [Rivera, J., dissenting]).
In my view, just as the First Department concluded in Vega,
even if Labor Law § 198 does not expressly authorize a private right of
action for a violation of the requirements of Labor Law § 191, a remedy
may be implied, as the “plaintiff is one of the class for whose
particular benefit the statute was enacted, the recognition of a private
right of action would promote the legislative purpose of the statute
and the creation of such a right would be consistent with the
legislative scheme” (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146).
The plaintiff is a “manual worker,” as defined by the statute, and
allowing him to bring suit would promote the legislative purpose of
section 191, which is to protect workers who are generally “dependent
upon their wages for sustenance” (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146 [internal quotation marks omitted]; see People v Vetri, 309 NY 401, 405), and section 198, “which was enacted to deter abuses and violations of the labor laws” (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146; see P & L Group v Garfinkel, 150 AD2d 663, 664).
The creation of such a right would also be consistent with the
legislative scheme, as section 198 “explicitly provides that individuals
may bring suit against an employer for violations of the labor laws,
even if the Commissioner chooses not to do so” (Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1147; see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 15).
Accordingly, I respectfully disagree with my colleagues in the
majority, and would determine that Labor Law § 198(1-a) provides a
private right of action for a violation of Labor Law § 191, and, in
addition, a private right of action may also be implied (see Vega v CM & Assoc. Constr. Mgt., LLC, 175 AD3d at 1146-1147).
Although the majority did not reach the issue of whether the
plaintiff can seek liquidated damages on behalf of the putative class
members, in my view, he cannot. Pursuant to CPLR 901(b), “[u]nless a
statute creating or imposing a penalty, or a minimum measure of recovery
specifically authorizes the recovery thereof in a class action, an
action to recover a penalty, or minimum measure of recovery created or
imposed by statute may not be maintained as a class action.” Liquidated
damages have been viewed as a penalty (see Carter v Frito-Lay, Inc., 74 AD2d 550, 551, affd 52 NY2d 994; see also Griffin v Gregorys Coffee Mgt. LLC, 2019 NY Slip Op 31125[U]
[Sup Ct, NY County]), and Labor Law § 198(1-a) does not specifically
authorize that liquidated damages are recoverable in a class action.
Accordingly, I would conclude that while the plaintiff is entitled to
proceed on his claim for liquidated damages in his individual capacity,
pursuant to CPLR 901(b), he may not seek to recover liquidated damages
on behalf of the putative class members, although he may seek to recover
interest on behalf of the putative class members (see id.; see generally Borden v 400 E. 55th St. Assoc., L.P., 24 NY3d 382, 397; Brown v Mahdessian, 206 AD3d 511, 511).
[1] We recognize that the federal case law cited in the preceding paragraph determined that Konkur did not abrogate Vega‘s determination regarding an express private right of action (see e.g. Georgiou v Harmon Stores, Inc., 2023 WL 112805, *4-6, 2022 US Dist LEXIS 234643, *10-14). We do not suggest otherwise, as Konkur concerned an implied private right of action under a different provision of the Labor Law. Rather, we conclude that Konkur raises doubt as to the reasoning underlying the First Department’s decision in Vega, in the manner just described.”