Case 6:22-cv-06075 Document 1 Filed 02/11/22 Page 1 of 20

TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Tel: (718) 762-1324
Attorney for the Plaintiff, proposed FLSA Collective andpotential Rule 23 ClassUNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORK------------------------------------------------------------------ x
TAYLOR RAE HINE,
on her own behalf and on behalf of others similarly
situated
Plaintiff,v.
INSOMNIA COOKIES;KRISPY KREME INC
f/d/b/a Krisy Kreme Doughnut of New Yorkd/b/a Krispy Kreme;
SETH BERKOWITZ

Case No. 22-cv-06075

29 U.S.C. § 216(b)COLLECTIVE ACTION &FED. R. CIV. P. 23 CLASSACTIONCOMPLAINTDEMAND FOR JURY TRIAL

Defendants.
------------------------------------------------------------------ x
Plaintiff TAYLOR RAE HINE (hereinafter referred to as Plaintiff), on behalf of herself
and others similarly situated, by and through her attorney, Troy Law, PLLC, hereby brings thiscomplaint against Defendants INSOMNIA COOKIES; and KRISPY KREME INC f/d/b/a Krisy
Kreme Doughnut of New York d/b/a Krispy Kreme; SETH BERKOWITZ, and alleges asfollows:
INTRODUCTION
1.

This action is brought by the Plaintiff TAYLOR RAE HINE, on behalf ofherself as well as other employees similarly situated, against the Defendants for alleged
violations of the Fair Labor Standards Act, (FLSA) 29 U.S.C. § 201 et seq. and New York
Labor Law (NYLL), arising from Defendants’ various willful, malicious, and unlawful
employment policies, patterns and practices.

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2.

Upon information and belief, Defendants have willfully, maliciously, andintentionally committed widespread violations of the FLSA and NYLL by engaging in pattern
and practice of failing to pay its employees, including Plaintiff, minimum wage for each hour
worked and overtime compensation for all hours worked over forty (40) each workweek.
3.

Plaintiff alleges pursuant to the FLSA, that she is entitled to recover from the

Defendants: (1) liquidated damages, (3) prejudgment and post-judgement interest; and or (4)attorney’s fees and cost.
4.

Plaintiff further alleges pursuant to NYLL § 650 et seq. and 12 New York

Codes, Rules and Regulations § 146 (NYCRR) that she is entitled to recover from the
Defendants: (1) Up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure toprovide a Time of Hire Notice detailing rates of pay and payday, (2) up to five thousand
dollars ($5,000) per Plaintiff for Defendants’ failure to provide a paystub that accurately andtruthfully lists employee’s hours along with the employee’s name, employer’s name,employer’s address and telephone number, employee’s rate or rates of pay, any deductions
made from employee’s wages, any allowances claimed as part of the minimum wage, and theemployee’s gross and net wages for each pay day, (3) liquidated damages equal to the sum of
unpaid minimum wage, unpaid “spread of hours” premium, unpaid overtime in the amount oftwenty five percent under NYLL § 190 et seq., § 650 et seq., and one hundred percent after
April 9, 2011 under NY Wage Theft Prevention Act, (4) 9% simple prejudgment interest
provided by NYLL, (5) post-judgment interest, and (6) attorney’s fees and costs.
5.

Plaintiff alleges pursuant to the FLSA, that she is entitled to recover from the

Defendants: (1) Out of pocket expenses to delivery experts on the road, (2) liquidated
damages, (3) prejudgment and post-judgement interest; and or (4) attorney’s fees and cost.

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6.

Plaintiff further alleges pursuant to NYLL § 650 et seq. and 12 New York

Codes, Rules and Regulations § 146 (NYCRR) that she is entitled to recover from the
Defendants: (1) Up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure toprovide a Time of Hire Notice detailing rates of pay and payday, (2) up to five thousand
dollars ($5,000) per Plaintiff for Defendants’ failure to provide a paystub that accurately andtruthfully lists employee’s hours along with the employee’s name, employer’s name,employer’s address and telephone number, employee’s rate or rates of pay, any deductions
made from employee’s wages, any allowances claimed as part of the minimum wage, and theemployee’s gross and net wages for each pay day, (3) out of pocket expenses to delivery
experts on the road, (4) liquidated damages equal to the sum of unpaid minimum wage,
unpaid “spread of hours” premium, unpaid overtime in the amount of twenty five percent
under NYLL § 190 et seq., § 650 et seq., and one hundred percent after April 9, 2011 under
NY Wage Theft Prevention Act, (5) 9% simple prejudgment interest provided by NYLL, (6)post-judgment interest, and (7) attorney’s fees and costs.
JURISDICTION AND VENUE
7.

This Court has original federal question jurisdiction over this controversy

under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331, and has supplemental jurisdiction over the
NYLL claims pursuant to 28 U.S.C. § 1367(a).
8.

Venue is proper in the Western District of New York pursuant to 28 U.S.C. §§1391(b) and (c), because Defendants conduct business in this District, and the acts andomissions giving rise to the claims herein alleged took place in this District.
PLAINTIFFS
9.

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From on or about October 26, 2019 to August 03, 2021, Plaintiff TAYLOR

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RAE HINE was employed by Defendants to work as a Delivery Driver for Corporate
Defendant INSOMNIA COOKIES at one of Corporate Defendants store located at 1333
Mount Hope Avenue Rochester, NY 14620.
DEFENDANTS
Corporate Defendants
10.

Defendant INSOMNIA COOKIES is a domestic business corporation

organized under the laws of the State of New York with a principal address at 440 Park
Avenue South, 14th Floor, New York, NY 10016.
11.

INSOMNIA COOKIES is a business engaged in interstate commerce that has

gross sales in excess of five hundred thousand dollars ($500,000) per year.
12.

INSOMNIA COOKIES purchased and handled goods moved in interstate

commerce.
13.

Defendant KRISPY KREME INC d/b/a Krispy Kreme Doughnut of New Yorkis a Nationwide corporation that operates with a Headquarters located at 370 Knollwood
Street Winston-Salem, NC 27103.
14.

Defendant KRISPY KREME INC f/d/b/a Krispy Kreme Doughnut of New

York d/b/a Krispy Kreme is also domestic business corporation organized under the laws of
the State of New York with a Service of Process Address located at 80 State Street, Albany,
NY 12207.
15.

KRISPY KREME INC f/d/b/a Krispy Kreme Doughnut of New York d/b/a

Krispy Kreme is a business engaged in interstate commerce that has gross sales in excess offive hundred thousand dollars ($500,000) per year.
16.

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KRISPY KREME INC f/d/b/a Krispy Kreme Doughnut of New York d/b/a

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Krispy Kreme purchased and handled goods moved in interstate commerce.
Owner/Operator Defendants
17.

SETH BERKOWITZ the Owner and Founder, and CEO of INSOMNIACOOKIES, (1) had the power to hire and fire employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate and methodof payment, and (4) maintained employee records at INSOMNIA COOKIES; SERVE U
BRANDS INC.
18.

As the CEO of both Corporations SETH BERKOWITZ had operational

control over INSOMNIA COOKIES and over the activities of Plaintiff and actively manages
both corporations.
19.

SETH BERKOWITZ was responsible for retail at all the Insomnia Cookies

locations, obtaining FDA appoval and finding investors.
20.

SETH BERKOWITZ had and has the authority to make decisions that concern

the policies, operations and functions relating to Employement, Human Resources and Payroll
at INSOMNIA COOKIES.
21.

SETH BERKOWITZ acted intentionally and maliciously and is an employer

pursuant to FLSA, 29 U.S.C. § 203(d) and regulations promulgated thereunder, 29 C.F.R. §791.2, NYLL § 2 and the regulations thereunder, and is jointly and severally liable with
INSOMNIA COOKIES; KRISPY KREME INC f/d/b/a Krispy Kreme Doughnut of New
York d/b/a Krispy Kreme
STATEMENT OF FACTS
Corporate Defendant INSOMNIA COOKIES Constitute an Enterprise
22.

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INSOMNIA COOKIES operates over 100 stores located across the United

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States.
23.

Corporate Defendant INSOMNIA COOKOES share materials and workers,

including plaintiff between their locations.
24.

Plaintiff states that Jason Cupelo was the “Regional Planner of Rochester”.

25.

Further, Plaintiff states that when materials ran short at their store drivers weresent to the Buffalo location to pick up materials to stock for their store.
26.

Additionally, Tori Pitkins, Brandon Pitkins, who were delivery drivers such asplaintiff worked between the Rochester and Buffalo locations.
Corporate Defendant INSOMNIA COOKIES and KRISPY KREME INC f/d/b/a Krispy
Kreme Doughnut of New York d/b/a Krispy Kreme Constitute an Enterprise27.

Upon information and belief, Corporate Defendants INSOMNIA COOKIES;KRISPY KREME INC f/d/b/a Krisy Kreme Doughnut of New York d/b/a Krispy Kreme
constitute an enterprise as the term is defined by 29 USC §203(r) insofar as they engaged inrelated activities performed through unified operation and/or common control for a common
business purpose, and are co-owned by the same partners.
28.

At all times relevant herein, INSOMNIA COOKIES; and KRISPY KREME

INC f/d/b/a Krisy Kreme Doughnut of New York d/b/a Krispy Kreme was, and continues tobe, an “enterprise engaged in commerce” within the meaning of FLSA.
29.

In 2018 KRISPY KREME INC f/d/b/a Krispy Kreme Doughnut of New Yorkd/b/a Krispy Kreme acquired Defendant INSOMNIA COOKIES.
30.

INSOMNIA COOKIES still operates independently but constitute as a subsidy

of Corporate Defendant KRISPY KREME INC f/d/b/a Krispy Kreme Doughnut of New Yorkd/b/a Krispy Kreme
31.

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At all relevant times, the work performed by Plaintiff was directly essential to

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the business operated by INSOMNIA COOKIES; and KRISPY KREME INC f/d/b/a Krisy
Kreme Doughnut of New York d/b/a Krispy Kreme.
Wage and Hour Claims
32.

Defendants committed the following alleged acts knowingly, intentionallywillfully, and maliciously against the Plaintiff, the FLSA Collective Plaintiffs, and the Class.
33.

Pursuant to NYCRR Part 146-2.2 and 29 USC § 203(m), an employer cannot

take credit towards the basic minimum wage if a service employee or food service worker has
not received notification of the tip credit.
34.

Upon information and belief, Defendants failed to keep full and accurate

records in order to mitigate liability for their wage violations. Defendants never furnished any
notice of their use of tip credit.
35.

At all relevant times, Defendants knowingly, willfully, and maliciously failed toprovide Plaintiff and similarly situated employees with Time of Hire Notice reflecting true rates
of pay and payday as well as paystub that lists employee’s name, employer’s name, employer’s
address and telephone number, employee’s rate or rates of pay, any deductions made from
employee’s wages, any allowances claimed as part of the minimum wage, and the employee’s
gross and net wages for each pay day.
36.

Defendants did not post the required New York State Department of Labor

posters regarding minimum wage pay rates, overtime pay, tip credit, and pay day.
Plaintiff TAYLOR RAE HINE
37.

From on or about October 26, 2019 to August 03, 2021, Plaintiff TAYLOR

RAE HINE was employed by Defendants to work as a Delivery Driver at 1333 Mount Hope
Avenue, Rochester, NY 14620.

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38.

From on or about October 26, 2019 to August 03, 2021, Plaintiff TAYLOR

RAE HINE’s regular work schedule ran as follows:a. From, 18:00 to 25:30 (01:30 the Next Morning) for Seven and a Half (7.5)
Hours per day on Wednesday and Thursdays.
b. From, 18:00 to 27:30 (03:30 the Next Morning) for Nine and a Half (9.5)
Hours per day on Friday and Saturdays.
c. For a total of thirty-four (34) hours each week.
39.

At all relevant times, Plaintiff TAYLOR RAE HINE did not have a fixed time

for lunch or for dinner.
40.

From on or about October 26, 2019 to January 01, 2021, Plaintiff TAYLOR

RAE HINE was paid a flat compensation at a rate of fifteen dollars ($15.00) per hour.
41.

From on or about January 02, 2021 to August 03, 2021 , Plaintiff TAYLOR

RAE HINE was paid a flat compensation at a rate of sixteen dollars ($15.75) per hour.
42.

At all relevant times, Plaintiff TAYLOR RAE HINE was never informed ofher hourly pay rate or any tip deductions toward the minimum wage.
43.

Further, at all relevant times, Plaintiff TAYLOR RAE HINE had to take careof the cash register and clean the store.
44.

At all relevant times, Plaintiff TAYLOR RAE HINE’s non-tipped work

exceeds two (2) hours or twenty percent (20%) of Plaintiff’s workday.
45.

Further, at all relevant times, Plaintiff TAYLOR RAE HINE had her tips

misappropriated.
46.

For the final three weeks of Plaintiffs employment with Defendants, Plaintiffs

noticed that there was a discrepancy in amount of tip that she saw on the online orders and

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what she received in actuality on her personal check from Defendants.
47.

Throughout her employment, Plaintiff TAYLOR RAE HINE was not given astatement with her weekly payment reflecting employee’s name, employer’s name,employer’s address and telephone number, employee’s rate or rates of pay, any deductions
made from employee’s wages, any allowances claimed as part of the minimum wage, and theemployee’s gross and net wages for each pay.
48.

As part of Plaintiff’s employment with Defendants, Plaintiff TAYLOR RAE

HINE was required to bear the cost of the purchase of a motor vehicle and the costs of thegasoline.
49.

In delivering food to Defendants’ customers, Plaintiff TAYLOR RAE HINE

drives an average of 4 to 8 miles.
50.

Plaintiff TAYLOR RAE HINE was not reimbursed by Defendants for the costof the gasoline or the cost of maintaining the delivery vehicle for Defendants’ benefit.
COLLECTIVE ACTION ALLEGATIONS
51.

Plaintiff brings this action individually and as class representative individuallyand on behalf of all other and former non-exempt employees who have been or were
employed by the Defendants for up to the last three (3) years, through entry of judgment inthis case (the “Collective Action Period”) and whom were not compensated at their promised
hourly rate for all hours worked and at one and one half times their promised work for all
hours worked in excess of forty (40) hours per week (the “Collective Action Members”).
CLASS ACTION ALLEGATIONS
52.

Plaintiff brings her NYLL claims pursuant to Federal Rules of Civil Procedure(“Fed. R. Civ. P.”) Rule 23, on behalf of all non-exempt personnel employed by Defendants

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on or after the date that is six years before the filing of the Complaint in this case as defined
herein (the “Class Period”).
53.

All said persons, including Plaintiff, are referred to herein as the “Class.”

54.

The Class members are readily ascertainable. The number and identity of theClass members are determinable from the records of Defendants. The hours assigned andworked, the positions held, and the rate of pay for each Class Member is also determinablefrom Defendants’ records. For purpose of notice and other purposes related to this action,
their names and addresses are readily available from Defendants. Notice can be provided bymeans permissible under said Fed. R. Civ. P. 23.
Numerosity
55.

The proposed Class is so numerous that joinder of all members is

impracticable, and the disposition of their claims as a class will benefit the parties and the
Court. Although the precise number of such persons is unknown, and the facts on which thecalculation of the number is presently within the sole control of the Defendants, upon
information and belief, there are more than forty (40) members of the class.
Commonality
56.

There are questions of law and fact common to the Class which predominate

over any questions affecting only individual class members, including:a.

Whether Defendant employed Plaintiff and the Class within the meaning of the

New York law;b.

Whether Plaintiff and Class members are entitled to and paid overtime at theirpromised hourly wage under the New York Labor Law;
c.

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Whether Defendants maintained a policy, pattern and/or practice of failing to

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pay Plaintiff and the Rule 23 Class spread-of-hours pay as required by the NYLL;d.

Whether Plaintiff and Class members are required to provide and maintaintools of the trade on Defendants’ behalf at their own cost;e.

Whether Defendants maintained a policy, pattern and/or practice of failing toprovide requisite statutory meal periods;f.

Whether Defendants provided a Time of Hire Notice detailing rates of pay andpayday at the start of Plaintiff and the Rule 23 Class’s start of employment and/or timely
thereafter;g.

Whether Defendants provided paystubs detailing the rates of pay and credits

taken towards the minimum wage to Plaintiff and the Rule 23 class on each payday; andh.

At what common rate, or rates subject to common method of calculation was

and is Defendants required to pay the Class members for their work.
Typicality
57.

Plaintiff's claims are typical of those claims which could be alleged by any

member of the Class, and the relief sought is typical of the relief that would be sought by eachmember of the Class in separate actions. All the Class members were subject to the same
corporate practices of Defendants, as alleged herein, of failing to pay minimum wage orovertime compensation. Defendants’ corporate-wide policies and practices affected all Class
members similarly, and Defendants benefitted from the same type of unfair and/or wrongfulacts as to each Class member. Plaintiff and other Class members sustained similar losses,
injuries and damages arising from the same unlawful policies, practices and procedures.
Adequacy
58.

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Plaintiff is able to fairly and adequately protect the interests of the Class and

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have no interests antagonistic to the Class. Plaintiff is represented by attorneys who areexperienced and competent in representing Plaintiffs in both class action and wage-and-hour
employment litigation cases.
Superiority
59.

A class action is superior to other available methods for the fair and efficientadjudication of the controversy, particularly in the context of wage-and-hour litigation whereindividual Class members lack the financial resources to vigorously prosecute a lawsuit
against corporate defendants. Class action treatment will permit a large number of similarly
situated persons to prosecute their common claims in a single forum simultaneously,
efficiently and without the unnecessary duplication of efforts and expenses that numerous
individual actions engender. Because the losses, injuries and damages suffered by each of theindividual Class members are small in the sense pertinent to a class action analysis, theexpenses and burden of individual litigation would make it extremely difficult or impossible
for the individual Class members to redress the wrongs done to them. Further, important
public interests will be served by addressing the matter as a class action. The adjudication ofindividual litigation claims would result in a great expenditure of Court and public resources;
however, treating the claims as a class action would result in a significant saving of thesecosts. The prosecution of separate actions by individual members of the Class would create arisk of inconsistent and/or varying adjudications with respect to the individual members of theClass, establishing incompatible standards of conduct for Defendants and resulting in the
impairment of Class members’ rights and the disposition of their interests through actions towhich they were not parties. The issues in this action can be decided by means of common,class-wide proof. In addition, if appropriate, the Court can, and is empowered to, fashion

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methods to efficiently manage this action as a class action.
60.

Upon information and belief, Defendants and other employers throughout thestate violate the New York Labor Law. Current employees are often afraid to assert theirrights out of fear of direct or indirect retaliation. Former employees are fearful of bringing
claims because doing so can harm their employment, future employment, and future efforts tosecure employment. Class actions provide class members who are not named in the complainta degree of anonymity which allows for the vindication of their rights while eliminating or
reducing these risks.
STATEMENT OF CLAIMS[Violation of New York Labor Law—Failure to Provide Meal Periods
Brought on behalf of Plaintiff and the Rule 23 Class]
61.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as

though fully set forth herein.
62.

The NYLL requires that employees provide: a noon day meal period of at least

thirty (30) minutes for employees who work a shift of more than six hours extending over thenoon day meal period from 11 a.m. to 2 p.m.; an additional meal period between 5 p.m. and 7
p.m. of at least twenty (20) minutes for employees whose shift started before 11 a.m. andcontinues later than 7 p.m.; and/or a forty-five (45) minute meal period at a time midway
between the beginning and end of the shift for employees whose shift lasts more than six
hours and starts between 1 p m. and 6 a.m. NYLL § 162.
63.

Defendants failed to provide meal periods required by NYLL § 162 for every

day that Plaintiff worked.
64.

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Though the Department of Labor commissioner may permit a shorter time to

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be fixed for meal periods than hereinbefore provided, such permit must be in writing and be
kept conspicuously posted in the main entrance of the establishment. No such permit isposted.
65.

Defendants’ failure to provide the meal periods required by NYLL § 162 was

not in good faith.

[Violation of New York Labor Law—Failure to Keep Records
Brought on behalf of Plaintiff and Rule 23 Class]
66.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as

though fully set forth herein.
67.

Defendants did not maintain, establish and preserve Plaintiff's weekly payroll

records for a period of not less than six years, as required by NYCRR § 146-2.1.
68.

As a result of Defendants’ unlawful conduct, Plaintiff has sustained damages

including loss of earning, in an amount to be established at trial, liquidated damages,
prejudgment interest, costs and attorneys’ fee, pursuant to the state law.
69.

Upon information and belief, Defendants failed to maintain adequate andaccurate written records of actual hours worked and true wages earned by Plaintiff in order tofacilitate their exploitation of Plaintiff's labor.
70.

Defendants’ failure to maintain adequate and accurate written records of actual

hours worked and true wages earned by Plaintiff were not in good faith.

[Violation of New York Labor Law—Failure to Provide Time of Hire Wage Notice
Brought on behalf of Plaintiff and Rule 23 Class]
71.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as

though fully set forth herein.
72.

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The NYLL and supporting regulations require employers to provide written
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notice of the rate or rates of pay and the basis thereof, whether paid by the hour, shift, day,week, salary, piece, commission, or other; allowances, if any, claimed as a part of minimum
wage, including tip, meal, or lodging allowances; the regular pay day designated by theemployer; the name of the employer; any “doing business as” names used by the employer; thephysical address of employer’s main office or principal place of business, and a mailing address
if different; the telephone number of the employer. NYLL §195-1(a).
73.

Defendants intentionally failed to provide notice to employees in violation of

New York Labor Law § 195, which requires all employers to provide written notice in theemployee’s primary language about the terms and conditions of employment related to rate ofpay, regular pay cycle and rate of overtime on their or her first day of employment.
74.

Defendants not only did not provide notice to each employee at Time of Hire,

but failed to provide notice to Plaintiff even after the fact.
75.

Due to Defendants’ violations of New York Labor Law, Plaintiff is entitled torecover from Defendants, jointly and severally, $50 for each workday that the violation
occurred or continued to occur, up to $5,000, together with costs and attorneys’ fees pursuant
to New York Labor Law. N.Y. Lab. Law §198(1-b).

[Violation of New York Labor Law—Failure to Provide Wage Statements
Brought on behalf of Plaintiff and Rule 23 Class]
76.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as

though fully set forth herein.
77.

The NYLL and supporting regulations require employers to provide detailed

paystub information to employees every payday. NYLL § 195-1(d).
78.

Defendants have failed to make a good faith effort to comply with the New York

Labor Law with respect to compensation of each Plaintiff, and did not provide the paystub on
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or after each Plaintiffs’ payday.
79.

Due to Defendants’ violations of New York Labor Law, Plaintiff is entitled torecover from Defendants, jointly and severally, $250 for each workday of the violation, up to$5,000 for each Plaintiff together with costs and attorneys’ fees pursuant to New York Labor
Law. N.Y. Lab. Law §198(1-d).

[Breach of Implied Contract for Reimbursement of all Costs and Expenses of Electric
Delivery Vehicle, including Depreciation, Insurance, Maintenance and Repairs
Brought on behalf of the Plaintiff and the Class]
80.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as

though fully set forth herein.
81.

Throughout the relevant period, Defendants required their deliverymen to bear

all of the “out-of-pocket” costs associated with their vehicles, including the purchase,maintenance, repair, maintenance of the delivery vehicles, including bicycles and electricbicycles.
82.

Based on his personal experience and available information, Plaintiff candocument actual “out-of-pocket” vehicle related expenses of her electricity delivery bicycle.
83.

The conduct of Defendants, and the course of Defendant’s conduct between theparties, evidenced an intent for Plaintiff to maintain the delivery vehicle in working condition.
84.

Plaintiff purchased, maintained and repaired the electric bicycle at her own

expense.
85.

Plaintiff performed these deliveries for the sole benefit of the Defendants.

86.

Defendants neither explicitly nor implicitly requested Plaintiff to cease thepurchase of gasoline and/or the maintenance of the vehicle.
87.

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As a result of the afore-alleged conduct of the parties, an implied contract arose

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between them the terms of which are that Plaintiff would incur the expenses for bicycle
purchase and vehicle maintenance, in exchange for compensation from Defendants for such
expenses.
88.

Defendants never compensated Plaintiff for any expenses incurred from thepurchase and maintenance of the electric bicycles, and the purchase of batteries. As a result,
Defendants breached the implied contract by failing and refusing to pay Plaintiff a reasonable
sum under the afore-alleged facts.
89.

Defendants owe Plaintiff her overdue costs of delivery vehicles, cost of batterchange, if applicable, and maintenance of the bicycle.

[[Defendants' Failure To Pay To Delivery Experts Working "On The Road"
Brought on Behalf of Plaintiff and the Class]
90.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as

though fully set forth herein.
91.

Throughout the relevant period, Defendants required their delivery experts tomaintain and provide a safe, functioning, insured and legally-operable automobile to makedeliveries.
92.

Throughout the relevant period, Defendants required their delivery experts tobear all of the "out-of-pocket" costs associated with their vehicles, including costs forgasoline, vehicle depreciation, insurance, maintenance and repairs. For decades, the Internal
Revenue Service ("IRS") has calculated and published a standard mileage reimbursement rate
for businesses and employees to use in computing the minimum deductible costs of operating
an automobile for business purposes.

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93.

For 2012, the IRS Standard Mileage Rate is $0.555 per mile.

94.

For 2013, the IRS Standard Mileage Rate is $0.565 per mile.
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95.

For 2014, the IRS Standard Mileage Rate is $0.560 per mile.

96.

For 2015, the IRS Standard Mileage Rate is $0.575 per mile.

97.

For 2016, the IRS Standard Mileage Rate is $0.540 per mile.

98.

For 2017, the IRS Standard Mileage Rate is $0.535 per mile.

99.

For 2018, the IRS Standard Mileage Rate is $0.545 per mile.

100.

For 2019, the IRS Standard Mileage Rate is $0.580 per mile.
PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of herself, and on the behalf of the FLSA
Collective Plaintiffs and Rule 23 Class, respectfully requests that this Court enter a judgmentproviding the following relief:a)Authorizing Plaintiff at the earliest possible time to give notice of thiscollective action, or that the Court issue such notice, to all persons who are presently, or haveup through the extent allowable under the statute of limitations and including the date ofissuance of court-supervised notice, been employed by Defendants as non-exempt employees.
Such notice shall inform them that the civil notice has been filed, of the nature of the action,of his right to join this lawsuit if they believe they were denied premium overtime wages;b)

Certification of this case as a collective action pursuant to FLSA;c)

Issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situatedmembers of the FLSA opt-in class, apprising them of the pendency of this action, and permitting
them to assert timely FLSA claims and state claims in this action by filing individual Consent
to Sue forms pursuant to 29 U.S.C. § 216(b), and appointing Plaintiff and their counsel torepresent the Collective Action Members;

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Case 6:22-cv-06075 Document 1 Filed 02/11/22 Page 19 of 20d)A declaratory judgment that the practices complained of herein are unlawful

under FLSA and New York Labor Law;e)

An injunction against Corporate Defendants, its officers, agents, successors,

employees, representatives and any and all persons acting in concert with them as provided bylaw, from engaging in each of unlawful practices and policies set forth herein;f)

An award of unpaid minimum wage and overtime wages due under FLSA and

New York Labor Law due Plaintiff and the Collective Action members plus compensatory
and liquidated damages in the amount of twenty five percent (25%) prior to April 9, 2011 andone hundred percent (100%) thereafter under NY Wage Theft Prevention Act;g)

An award of out-of-pocket breach-of-contract delivery costs for motorcycle

expenses incurred and expended by Plaintiff on Defendants’ bequest and behalf;h)An award of liquidated and/or punitive damages as a result of Defendants’knowing, willful, and malicious failure to pay wages at least the hourly minimum wage,
overtime compensation pursuant to 29 U.S.C. §216;
i)

Up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure toprovide a Time of Hire Notice detailing rates of pay and payday;j)

Up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure toprovide a paystub that lists employee’s name, employer’s name, employer’s address andtelephone number, employee’s rate or rates of pay, any deductions made from employee’s
wages, any allowances claimed as part of the minimum wage, and the employee’s gross andnet wages for each pay day;

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Case 6:22-cv-06075 Document 1 Filed 02/11/22 Page 20 of 20k)

An award of liquidated and/or punitive damages as a result of Defendants’

willful and malicious failure to overtime compensation, and “spread of hours” premium
pursuant to New York Labor Law;l)

An award of costs and expenses of this action together with reasonable

attorneys’ and expert fees pursuant to 29 U.S.C. §216(b) and NYLL §§198 and 663;m)

The cost and disbursements of this action;n)

An award of prejudgment and post-judgment fees;o)Providing that if any amounts remain unpaid upon the expiration of ninety

days following the issuance of judgment, or ninety days after expiration of the time to appeal
and no appeal is then pending, whichever is later, the total amount of judgment shall
automatically increase by fifteen percent, as required by NYLL §198(4); andp)Such other and further legal and equitable relief as this Court deems necessary,

just, and proper.
DEMAND FOR TRIAL BY JURY
Pursuant to Rule 38(b) and 38(c) of the Federal Rules of Civil Procedures, Plaintiffs
demand a trial by jury on all questions of facts.

Dated: February 11, 2022
Flushing, New YorkTROY LAW, PLLC
Attorneys for the Plaintiff, proposed FLSA
Collective and potential Rule 23 Class/s/ John TroyJohn Troy (JT0481)
Aaron Schweitzer (AS 6369)
Tiffany Troy (Bar ID 5881735)

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ClassAction.org
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database and can be found in this post: Insomnia Cookies, Krispy Kreme ViolatedFederal, New York Labor Statutes, Lawsuit Alleges