Delorenzo v. Coffey et al

Filing 57

OPINION AND ORDER re: 20 MOTION to Dismiss Complaint. filed by Kirkoswald Asset Management LLC, Greg Coffey, GC Management US LLC d/b/a GC Management LLC, Ania Coffey, 39 MOTION to Dismiss Amended Complaint. filed by Kirkoswald Asset Management LLC, Greg Coffey, GC Management US LLC d/b/a GC Management LLC, Ania Coffey. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Defendants shall file an answer to the surviving claims within 14 days after the date of this opinion and order. The Clerk of Court is directed to close the motions at Docket Numbers 20 and 39. SO ORDERED. (Signed by Judge J. Paul Oetken on 3/10/2025) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JESSE DELORENZO,
Plaintiff,
24-CV-1735 (JPO)
-vOPINION AND ORDER
ANIA COFFEY, et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Jesse DeLorenzo brings this action against Defendants Ania Coffey, Greg
Coffey, Kirkoswald Asset Management LLC (“Kirkoswald”), and GC Management LLC (“GC
Management”), alleging that he was underpaid and denied documentation for the hours he
worked as a private chef for the Coffeys, in violation of the Fair Labor Standards Act of 1938, as
amended (FLSA), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (NYLL), N.Y. Lab. L.
§§ 190, et seq., §§ 663 et seq.
Before the Court is Defendants’ motion to dismiss the action for failure to state a claim,
Fed. R. Civ. P. 12(b)(6), and for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1). For
the reasons that follow, Defendants’ motion is granted in part and denied in part.
I.

Background
A.

Factual Background

The following facts are drawn from the allegations in DeLorenzo’s amended complaint
(ECF No. 34 (“AC”)), which are presumed true for the purpose of resolving this motion. Fink v.
Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013).
DeLorenzo was employed as the Coffeys’ private chef “from August 27, 2021, to May
27, 2022.” (AC ¶ 1.) DeLorenzo’s job usually entailed grocery shopping, preparing meals,

1

serving meals, cleaning the kitchen, “attending to various errands” when specifically asked, and
“feeding and walking the dog,” all at the Coffeys’ “explicit direction.” (Id. ¶ 197.) DeLorenzo
alleges that the Coffeys “supervised and controlled every aspect” of his employment as their
chef, including which items he could purchase and from which stores, “the types of meals that
were acceptable and expected routinely,” “how to store or handle leftovers,” and other logistical
details. (Id. ¶¶ 193-95.) Ania Coffey had to give DeLorenzo “express approval” for any menu
changes, and she and Greg Coffey “frequently gave DeLorenzo feedback and requests.” (Id.
¶ 196 (capitalization altered).)
DeLorenzo’s usual schedule was to work “Monday through Friday, from 6 AM until
anywhere between 7 PM and 8:30 PM” at the Coffeys’ home in Manhattan. (Id. ¶ 168.)
DeLorenzo alleges that he worked this schedule, which would add up to 13 to 14.5 hours a day
and 65 to 72.5 hours a week, “for 34 of the 40 weeks that he was employed by Defendants.” (Id.
¶ 170.)
For the remaining approximately six weeks of his tenure working for the Coffeys,
DeLorenzo “accompanied Defendants on a trip and thus worked an additional one to two days.”
(Id. ¶ 173.) DeLorenzo alleges that the Coffeys “expected DeLorenzo to be ‘on call’ and ready
to go on an extended trip at the drop of a hat.” (Id. ¶ 203 (capitalization altered).) DeLorenzo
traveled with the Coffeys to their Southampton home four different times, “including in or
around August of 2021 for Labor Day, twice in or around April of 2022, and once in or around
May of 2022.” (Id. ¶ 174.) During those visits, he would work “85 to 97.5 hours per week.”
(Id.) DeLorenzo also traveled with the Coffeys to their home in Switzerland for two weeks “in
or around the end of December 2021 and the beginning of January of 2022,” during which time
he also worked “85 to 97.5 hours per week.” (Id. ¶ 175.)

2

Throughout the forty weeks he worked for the Coffeys, DeLorenzo was paid “for 50
hours per week at a regular pay rate of $54.00,” regardless of how many hours he had worked
that week. (Id. ¶ 177.) The Coffeys never paid DeLorenzo an overtime rate for the hours he
worked over forty hours per week, and he was never paid “at all” for the hours he worked
beyond the fifty compensated hours per week. (Id. ¶¶ 176-79.) Nor did the Coffeys provide
DeLorenzo with “a wage notice” or periodic “accurate and complete statement[s]” of the hours
he worked, his rate of pay, or how his compensation was calculated. (Id. ¶¶ 181-82.)
In one instance, in January 2022, the Coffeys “demanded that DeLorenzo work the
weekend at their Hampton’s Residence” but DeLorenzo “refused due to an unforeseen conflict.”
(Id. ¶ 205 (capitalization altered).) However, Greg Coffey “refused to take no for an answer and
continuously threatened DeLorenzo.” (Id. (capitalization altered).)
In May 2022, the Coffeys told DeLorenzo that they would be spending the summer in
Ibiza, Spain, and required DeLorenzo to spend three weeks there with them. (Id. ¶ 206.)
However, DeLorenzo was told he would not be compensated “for the time they were away
thereafter.” (Id.) DeLorenzo told the Coffeys that his mother “was experiencing serious health
issues,” so “he could no longer work the long hours that the job entailed.” (Id. ¶ 207.)
DeLorenzo was then instructed to train a “replacement chef” who traveled with the Coffeys to
Ibiza instead. (Id. ¶ 208.) On May 30, 2022, DeLorenzo texted Ania Coffey “his availability to
work,” but he never received a reply. (Id. ¶ 209.) That was how DeLorenzo learned of his
termination. (Id. ¶ 210.)
DeLorenzo alleges that as a result “of his complaints of Defendants’ unlawful pay
practices,” he was terminated and “Defendants . . . engag[ed] in an ongoing unemployment
action against [him]” to prevent him from receiving unemployment benefits. (Id. ¶¶ 211-12.)

3

B.

Procedural History

DeLorenzo commenced this action on March 6, 2024 (ECF No. 1) and filed the operative
complaint for this motion on July 29, 2024 (AC). Defendants collectively moved to dismiss the
amended complaint on August 19, 2024. (ECF No. 39.) DeLorenzo opposed the motion on
October 4, 2024 (ECF No. 47 (“Opp.”)), and Defendants replied in further support of their
motion on November 1, 2024 (ECF No. 48).
II.

Legal Standard
A.

Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a plaintiff must state “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint will be dismissed where “the allegations in a complaint, however true, could not raise
a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In ruling on a motion to dismiss, the
Court must accept the plaintiff’s factual allegations as true, “drawing all reasonable inferences in
favor of the plaintiff.” Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
B.

Standing

“Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper
‘when the district court lacks the statutory or constitutional power to adjudicate it.’” Ford v.
D.C. 37 Union Loc. 1549, 579 F.3d 187, 188 (2d Cir. 2009) (quoting Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000)). “[U]nder Article III, a federal court may resolve only ‘a real
controversy with real impact on real persons.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 424
(2021). To survive a Rule 12(b)(1) motion, “the party asserting subject matter jurisdiction has
4

the burden of proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s
Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (quotation marks and citation
omitted).
III.

Discussion
Defendants first argue that the FLSA and NYLL do not apply to the Coffeys or to

Kirkoswald because none of them qualifies as an “employer” under either statute. Defendants
next contend that DeLorenzo has failed to state claims for overtime, minimum wage,
spread-of-hours, retaliation, and recordkeeping. Finally, they assert that the Court lacks
jurisdiction to adjudicate DeLorenzo’s NYLL wage notice and recordkeeping claims because
DeLorenzo lacks constitutional standing to bring such a claim. The Court addresses each of
these arguments and then turns to DeLorenzo’s request to replead any deficient claims.
A.

Employer Status

As a threshold matter, Defendants contend that the duties enumerated in the FLSA and
the NYLL do not apply to the Coffeys or to Kirkoswald because they do not qualify as
“employers” under either statute. (ECF No. 40 (“Mem.”) at 14.)
The FLSA defines “employer” as “any person acting directly or indirectly in the interest
of an employer in relation to an employee.” 29 U.S.C. § 203(d). The Supreme Court has
interpreted the FLSA’s coverage broadly, Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
326 (1992), and has directed lower courts to look to “economic reality rather than technical
concepts, determined by reference not to isolated factors, but rather upon the circumstances of
the whole activity,” in determining an employer’s status. Barfield v. N.Y.C. Health & Hosps.
Corp., 537 F.3d 132, 141 (2d Cir. 2008) (citations and quotation marks omitted). To do this,
courts must consider: “whether the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions of
5

employment, (3) determined the rate and method of payment, and (4) maintained employment
records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (quotation marks
omitted).
Multiple persons or entities may qualify as “joint employer[s]” under the FLSA so long
as each employer individually satisfies the economic realities balancing test. Barfield, 537 F.3d
at 144. However, not every one of these elements must be met in order for a person or entity to
qualify as an employer. See id. at 143; Irizarry v. Catsimatidis, 722 F.3d 99, 116-17 (2d Cir.
2013) (holding that an individual was an employer under the FLSA even though he did not meet
the second and fourth prongs of the Carter test).
While New York state courts analyzing employer status under the NYLL have
traditionally “focuse[d] more on the degree of control exercised by the purported employer, as
opposed to the economic reality of the situation,” in practice “there appears to have never been a
case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL
(or vice versa).” Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 923, 924 (S.D.N.Y.
2013) (citations and quotation marks omitted). The Court thus analyzes employer status under
the two statutes together.
DeLorenzo has alleged sufficient facts showing that both Kirkoswald and the Coffeys
meet enough of the requirements of the economic realities test to be considered liable employers.
DeLorenzo alleges that he received an “employment verification letter” on November 3, 2021,
stating that “this letter is to inform you that the above individual Jesse Delorenzo [sic] has been
employed by Kirkoswald Asset Management LLC since 9/5/21.” (AC ¶ 43.) Further, the
paychecks DeLorenzo received were from Kirkoswald and included Kirkoswald’s “entity name
as well as their corporate address.” (Id. ¶ 43.) Such consistent documentation from Kirkoswald

6

indicates that the company determined the rate and method of DeLorenzo’s payment and
maintained the employment records necessary to pay someone on a consistent schedule.
DeLorenzo alleges that both Ania and Greg Coffey had significant control over his
schedule, his status as their private chef, and the conditions under which he worked. DeLorenzo
references texting Ania Coffey “his availability to work,” indicating that Ania was at least in part
in charge of setting his hours. (Id. ¶ 209.) Further, both Coffeys would tell DeLorenzo when he
was expected to travel with them and work weekends, one example being their demand that
DeLorenzo work at least three weeks in Ibiza during the summer of 2022. (Id. ¶ 206.)
It is also abundantly clear from the allegations that the Coffeys were able to decide
whether DeLorenzo would continue to be employed as their private chef. DeLorenzo
specifically references a text message in which Greg Coffey told him: “Jesse you do not get to
choose where you work . . . We employed you with very clear set principles and conditions. You
don’t get to change them when you feel like it.” (Id. ¶ 151.) And after DeLorenzo told the
Coffeys he could not go to Ibiza for the summer, it was Ania Coffey who cut off communication,
resulting in his termination. (Id. ¶¶ 207-10.)
Finally, both Coffeys significantly controlled DeLorenzo’s working conditions and his
schedule while on the job. DeLorenzo alleges that Ania Coffey dictated the meals he could
make, the ingredients and brands he could buy, the storage of leftovers, the stores where he could
shop, the cleaning supplies he could use, and when to serve meals. (Id. ¶¶ 194-95.)
Additionally, both Coffeys would give DeLorenzo “explicit direction” on the many daily tasks
he had to do, including “attending to various errands when asked by [Ania Coffey] including
receiving mail and packages, moving furniture, driving to the Coffey’s Southampton Residence

7

to pick things up or drop things off, [and] feeding and walking the dog in the mornings and
evenings.” (Id. ¶ 197.)
Because DeLorenzo has adequately alleged sufficient authority and control by both
Kirkoswald and the Coffeys to satisfy the standards for employers under the FLSA and NYLL,
Defendants’ motion is denied on this ground.
B.

Overtime Wages

Defendants move to dismiss DeLorenzo’s FLSA and NYLL claims that he was not paid
overtime wages, arguing that DeLorenzo “failed to provide sufficient detail” about the overtime
hours he worked to survive a 12(b)(6) motion. (Mem. at 22.)
Both the FLSA and the NYLL’s enforcing regulations provide that an employer shall
pay an employee “one and one-half times” the employee’s “regular rate at which he is
employed” for every hour he works over forty hours a week. 29 U.S.C. § 207(a)(1); N.Y. Comp.
Codes R. & Regs. tit. 12, § 142-2.2. “So, to survive a motion to dismiss, Plaintiffs must allege
sufficient factual matter to state a plausible claim that they worked compensable overtime in a
workweek longer than 40 hours.” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106,
114 (2d Cir. 2013). To do this, a plaintiff must “provide sufficient detail about the length and
frequency of their unpaid work.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723
F.3d 192, 201 (2d Cir. 2013). However, so long as a plaintiff “draw[s] on their memory and
experience” to provide concrete details of their overtime work, a plaintiff is “not required to keep
careful records and plead their hours with mathematical precision.” Bustillos v. Acad. Bus, LLC,
No. 13-CV-565, 2014 WL 116012, at *3 (S.D.N.Y. Jan. 13, 2014).
DeLorenzo meets his burden. Rather than “[a] general statement that Plaintiff
‘sometimes’ worked more than a standard workweek,” Mendoza v. Cornell Univ., 20-CV-2110,
2021 WL 918622, at *3 (S.D.N.Y. Mar. 10, 2021), DeLorenzo states definitively that every one
8

of the thirty-four weeks he was not traveling with the Coffeys, he worked “Monday through
Friday, from 6 AM until anywhere between 7 PM and 8:30 PM.” (AC ¶ 168.) This adds up to
65 to 72.5 hours a week, well above the overtime limit.
DeLorenzo further alleges that for the approximately six weeks when he “accompanied
[the Coffeys] on a trip,” he additionally worked at least one weekend day. (Id. ¶ 173.)
DeLorenzo specifies that he traveled with the Coffeys to their Southampton residence four
different times, “including in or around August of 2021 for Labor Day, twice in or around April
of 2022, and once in or around May of 2022.” (Id. ¶ 174.) And he asserts that during those
visits, he would work “85 to 97.5 hours per week.” (Id.) DeLorenzo also specifically states that
he traveled with the Coffeys to their home in Switzerland for two weeks “in or around the end of
December 2021 and the beginning of January of 2022,” during which time he also worked “85 to
97.5 hours per week.” (Id. ¶ 175.)
DeLorenzo has thus pleaded adequate facts to “support a reasonable inference that [he]
worked more than forty hours in a given week,” and so Defendants’ motion to dismiss his FLSA
and NYLL overtime claims is denied. Cf. Nakahata, 723 F.3d at 201.
C.

Minimum Wage

Defendants next move to dismiss DeLorenzo’s minimum wage claims under both the
FLSA and the NYLL, arguing that because DeLorenzo was paid higher than state and federal
minimum wage, these protections do not apply to him.
The FLSA, as amended, set the federal minimum wage at “$7.25 an hour” for the months
during which DeLorenzo was employed as the Coffeys’ private chef. 29 U.S.C. § 206(a)(1)(C).
And the NYLL set the minimum wage for New York City employees at $15.00 at that time.
N.Y. Lab. L. § 652(1)(a); N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1(a)(1). Ultimately,
under both the FLSA and the NYLL, “no minimum wage violation occurs so long as the total
9

wage paid to an employee in any given workweek divided by the total hours worked in the
workweek equals or exceeds the applicable minimum wage.” Baldia v. RN Express Staffing
Registry LLC, 633 F. Supp. 3d 693, 712 (S.D.N.Y. 2022) (citing the rule set out in United States
v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960)); see also Alfonso v. Mougis
Logistics Corp., No. 21-CV-5302, 2021 WL 5771769, at *4 (S.D.N.Y. Dec. 6, 2021) (“[T]he
pertinent question is whether the amount of compensation received by an employee results in a
straight-time hourly rate that is less than the applicable . . . minimum wage.” (quoting Cruz v.
AAA Carting & Rubbish Removal, Inc., 116 F. Supp. 3d 232, 242-43 (S.D.N.Y. 2015))).
DeLorenzo alleges that he was paid $54.00 an hour for fifty-hour weeks (even when he
worked more than fifty hours a week) (AC ¶ 177), which would total to $2,700 a week.
Defendants are correct that dividing this sum by even DeLorenzo’s highest alleged weekly hours
worked, 97.5 (id. ¶¶ 174-75), would still equal over $27 an hour, which is well above either the
federal or local minimum wage. (Mem. at 21.)
Because DeLorenzo has not alleged that his hourly rate for the hours he actually worked
ever fell below minimum wage, Defendants’ motion to dismiss these claims under the FLSA and
NYLL is granted.
D.

Spread-of-Hour Pay

Defendants move to dismiss DeLorenzo’s NYLL spread-of-hours claim, arguing that
only employees earning minimum wage qualify to bring such a claim. (Mem. at 23.)
“Under [New York City Department of Labor (‘DOL’)] regulations, employers are
required to pay a ‘spread of hours’ premium of ‘one hour’s pay at the basic minimum hourly
wage rate’ to a covered employee who works a shift of more than 10 hours.” Andryeyeva v. N.Y.
Health Care, Inc., 33 N.Y.3d 152, 169 n.2 (N.Y. 2019) (quoting N.Y. Comp. Codes R. & Regs.
tit. 12, § 142-2.4(a)). DeLorenzo concedes that this Court’s holding in Malena v. Victoria’s
10

Secret Direct, LLC, that “New York’s spread-of-hours law does not apply to plaintiffs who
earned substantially more than the minimum wage,” 886 F. Supp. 2d 349, 369 (S.D.N.Y. 2012),
“on its face is correct” (Opp. at 11-12). However, DeLorenzo argues that he should qualify
under the exception to that rule for “all employees in restaurants and all-year hotels.” (Id. at 12
(citing N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6(d)).)
Though DeLorenzo undoubtedly works in the culinary world, his job as a private chef
does not fall under the DOL regulation’s definition of “restaurant.” The regulation states:
The term restaurant includes any eating or drinking place that prepares and offers
food or beverage for human consumption either on any of its premises or by such
service as catering, banquet, box lunch, curb service or counter service to the public,
to employees, or to members or guests of members, and services in connection
therewith or incidental thereto. The term restaurant includes but is not limited to
restaurant operations of other types of establishments, restaurant concessions in any
establishment and concessions in restaurants.
N.Y. Comp. Codes R. & Regs. tit. 12, § 146-3.1(b). DeLorenzo did not work for an “eating or
drinking place that prepares and offers food or beverage for human consumption . . . to the
public, to employees, or to members or guests of members.” Id. Rather, he worked in a private
home serving a single family. It stretches the statutory and regulatory text too far to read
DeLorenzo as a covered restaurant employee. 1 Defendants’ motion to dismiss this claim is
0F

therefore granted.

1

DeLorenzo also argues that he should be considered a “hospitality” employee, which he
alleges also receives an exception to the general requirement that an employee earn minimum
wage to bring a spread-of-hours claim. However, the text of the DOL regulation states that the
exception applies to “all employees in restaurants and all-year hotels,” rather than the broader
“hospitality” category. See N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6(d).
Regardless, DeLorenzo would not qualify under the DOL regulation’s definition of
“hospitality” employee either. The regulation defines “hospitality industry” as “any restaurant or
hotel, as defined herein,” and the definition of “hotel” is “any establishment which as a whole or
part of its business activities offers lodging accommodations for hire to the public, to employees,
or to members or guests of members, and services in connection therewith or incidental thereto.”
11

E.

Retaliation

Defendants also move to dismiss DeLorenzo’s retaliation claims under the FLSA and the
NYLL, arguing that DeLorenzo fails to allege that he engaged in a protected activity and,
alternatively, that he does not connect such activity to his termination. (Mem. at 27.)
Both the FLSA and the NYLL protect employees who file complaints alleging a violation
of the respective statute from facing discrimination as a result of lodging such a complaint. 29
U.S.C. § 215(a)(3); N.Y. Lab. L. § 215(1). “Because the FLSA and NYLL retaliation provisions
are nearly identical, claims under both statutes are analyzed using the same framework.”
Robinson v. De Niro, 739 F. Supp. 3d 33, 74 n.9 (S.D.N.Y. 2023) (quotation marks omitted).
Under both statutes, a plaintiff “must first establish a prima facie case of retaliation by showing
(1) participation in protected activity known to the defendant . . . ; (2) an employment action
disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the
adverse employment action.” Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010); see
also Robinson, 739 F. Supp. 3d at 75 (“The burden-shifting standard for a retaliation claim under
the NYLL is the same as that under the FLSA.”).
Defendants are correct that DeLorenzo fails to identify instances where he complained to
any of the Defendants about a violation of either statute. DeLorenzo cites two occasions on
which he refused to work when asked, once over a weekend “due to an unforeseen conflict,” and
once over the summer because his mother was ailing and he did not want to travel abroad with
the Coffeys. (AC ¶¶ 205-07.) However, DeLorenzo does not allege that he ever complained to
Defendants that he was not being paid overtime, or that their employment practices were illegal

See id. §§ 146-3.1(a), (c)(1). For the same reason DeLorenzo is not a restaurant employee, he is
not a hotel employee either.
12

in some other way. While DeLorenzo was terminated after refusing to travel to Ibiza with the
Coffeys, he states that he told them “he could no longer work the long hours that the job
entailed.” (Id. ¶ 207.) Such a statement is not protected activity under the FLSA or the NYLL,
because it is “not enough ‘for a reasonable employer to understand [it] as an assertion of rights
protected by the statute and a call for their protection.’” Jeanty v. Newburgh Beacon Bus Corp.,
No. 17-CV-9175, 2018 WL 6047832, at *11 (S.D.N.Y. Nov. 19, 2018) (quoting Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011)).
DeLorenzo does state that “[a]fter and because of his complaints of Defendants’ unlawful
pay practices, Defendants retaliated against Plaintiff.” (AC ¶ 211.) However, such a conclusory
statement, absent any specific instances or descriptions of these “complaints,” is insufficient to
survive the Rule 12(b)(6) standard. See Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.
2010) (“[M]ere ‘labels and conclusions’ or ‘formulaic recitation[s] of the elements of a cause of
action will not do’; rather, the complaint’s ‘[f]actual allegations must be enough to raise a right
to relief above the speculative level.’” (quoting Twombly, 550 U.S. at 555) (emphasis in Arista)).
DeLorenzo’s retaliation claims are thus dismissed for failure to state a claim.
F.

Wage Notice and Statements

Defendants move pursuant to Rule 12(b)(1) to dismiss DeLorenzo’s NYLL wage notice
and wage statements claims, arguing that DeLorenzo did not suffer a concrete injury and thus
lacks standing to bring such claims. (Mem. at 24.)
While Defendants are correct that “[a]n asserted informational injury that causes no
adverse effects cannot satisfy Article III,” if a party can identify “downstream consequences
from failing to receive the required information,” that resulted in “concrete harm,” standing is
proper. TransUnion, 594 U.S. at 442 (quotation marks omitted). DeLorenzo has done more than
allege a purely informational harm. DeLorenzo alleges that because he never received a wage
13

notice and accurate wage statements calculating his hours worked and his resulting rate of pay,
he did not have “relevant information he needed to determine whether he was being underpaid
and by how much.” (AC ¶ 183.) Because DeLorenzo’s overtime claim and the ultimate amount
he can recover depend on specific accounting of how many hours DeLorenzo actually worked,
when, and at what rate, see supra Section III.B., he has suffered a concrete harm due to the
Defendants’ failure to furnish accurate statements tracking this work.
Defendants rely on Montalvo v. Paul Bar & Rest. Corp., in which another court in this
District adopted a magistrate judge’s Report and Recommendation and held that a plaintiff who
“pleads nothing more than the statutory violation and a demand for damages” lacks standing to
bring a NYLL wage notice or statement claim. No. 22-CV-1423, 2023 WL 5928361, at *3
(S.D.N.Y. Sept. 13, 2023). However, DeLorenzo has done more than allege a purely statutory
harm: He has alleged that without accurate documentation, he did not know the extent of his
underpayment at the time he was being paid, as well as in the present litigation. This is more
akin to the plaintiffs in Metcalf v. Transperfect Translations International, Inc., who alleged
specific harm stemming from a lack of adequate wage notices. No. 19-CV-10104, 2023 WL
2674743, at *6 (S.D.N.Y. Mar. 29, 2023). There, Judge Ramos explained the concrete injury,
stating:
Plaintiffs in this case are similar to the subset of TransUnion class members whose
erroneous information was shared and who did have standing. Plaintiffs here
actually received inaccurate wage notices, which did not include a tabulation of
hours and overtime, and which thereby prevented them from knowing whether, and
to what extent, they had been underpaid during the nine-month period. . . .
Accordingly, the injury suffered by plaintiffs is not merely hypothetical.
Id. (emphasis in original.) To hold otherwise in Metcalf or in the case at hand would be to
completely nullify the NYLL wage notice requirement in federal court. That is, the injury that
stems from a wage notice or wage statement violation will always appear, by its nature, to be an

14

informational injury. However, if that lack of wage notice or statements delays a plaintiff from
bringing suit, or decreases the amount he is able to collect due to incomplete accounting, that
injury becomes a concrete one.
Defendants’ motion to dismiss DeLorenzo’s wage notice and statements claims for lack
of standing is therefore denied.
G.

Recordkeeping

Defendants move to dismiss DeLorenzo’s recordkeeping claims, contending that neither
the FLSA nor the NYLL provides for a private right of action that would enable an employee to
sue his employer, or, alternatively, that DeLorenzo lacks standing to bring such claims because
he did not allege a concrete injury from it. (Mem. at 26.)
Neither statute, nor the regulations DeLorenzo cites, explicitly provide a private right of
action for an employer’s recordkeeping violation. See 29 U.S.C. § 211(c); 29 C.F.R. § 516.2;
N.Y. Lab. L. § 195(4); 12 N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.6. Because of this,
courts in this Circuit have consistently found that neither statute, nor supporting regulations,
permit an employee to sue his employer for such a violation. See Garcia v. 2390 Creston Realty
LLC, No. 23-CV-1129, 2024 WL 2959254, at *5 (S.D.N.Y. June 11, 2024) (holding no private
right of action for recordkeeping in FLSA); Mota v. Abalon Exterminating Co., Inc., No. 22-CV7602, 2024 WL 4202687, at *8 (S.D.N.Y. Sept. 16, 2024) (collecting FLSA cases); Chan v. Big
Geyser, Inc., No. 17-CV-6473, 2018 WL 4168967, at *10 (S.D.N.Y. Aug. 30, 2018) (holding no
private right of action for recordkeeping in NYLL); Jenkins v. Yellowstone Props., Inc., 17-CV7764, 2019 WL 4392955, at *4 (S.D.N.Y. Sept. 12, 2019) (same).
In his opposition to Defendants’ motion to dismiss, DeLorenzo provides no explanation
as to why the Court should ignore the clear text of the statutes and regulations and hold

15

differently than the other courts in this Circuit. To the contrary, he does not address Defendants’
argument on this point.
The Court thus declines to infer private rights of action and dismisses DeLorenzo’s
recordkeeping claims.
H.

Leave to Replead

DeLorenzo requests leave to amend his complaint a second time to replead any of his
claims that the Court dismisses. (Opp. at 17.) When a party has already amended its pleading as
of right, district courts are to “freely give leave” to amend pleadings “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Though the Court is given discretion in deciding whether to grant a
subsequent motion for leave to amend, “that discretion must be exercised in terms of a justifying
reason or reasons consonant with the liberalizing ‘spirit of the Federal Rules.’” United States ex
rel. Maritime Admin. v. Continental Ill. Nat. Bank & Tr. Co. of Chi., 889 F.2d 1248, 1254 (2d
Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 181 (1962)). Some of the reasons to deny a
motion for leave to amend include “futility, bad faith, undue delay, or undue prejudice to the
opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citing
Foman, 371 U.S. at 182).
Several of DeLorenzo’s claims would be futile to amend. The Court dismisses the
minimum wage and spread-of-hours claims because DeLorenzo was paid in excess of minimum
wage, even calculating an hourly rate for his busiest weeks. See supra Sections III.C., III.D.
Paid $2,700 a week, DeLorenzo would have to allege that he worked over 180 hours a week in
order for his hourly pay to fall below the City’s minimum wage of $15.00. See supra Section
III.C. Because there are only 168 hours in a week, no additional pleading could remedy
DeLorenzo’s claims. His request to amend these claims is therefore denied.

16

Similarly, DeLorenzo’s recordkeeping claims do not survive because the statutes and
regulations he cites provide no private right of action for an employee to bring suit against his
employer. See supra Section III.G. No amendment can change that. Thus, his request to
replead those claims is also denied.
However, DeLorenzo’s retaliation claims could benefit from repleading. Should he be
able to allege specific instances in which he lodged a complaint about his lack of overtime pay,
Defendants’ failure to furnish wage notice or statements, or any other violation of the FLSA or
the NYLL, and that such complaint led to his termination, he may amend his complaint to add
these facts and reassert his retaliation claims, provided that any such amended complaint shall be
filed within 14 days.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part.
Defendants shall file an answer to the surviving claims within 14 days after the date of
this opinion and order.
The Clerk of Court is directed to close the motions at Docket Numbers 20 and 39.
SO ORDERED.
Dated: March 10, 2025
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

17