ALICEA v. WINSTAR SERVICE INC (2025)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 16, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motions for leave to amend the complaint and for partial summary judgment on plaintiffs’ claim under Labor Law § 191(1), unanimously affirmed, without costs.

Given defendants’ late production of requested documents after the close of discovery, plaintiffs’ limited post-note of issue delay, and the lack of any prejudice to defendants, the court properly granted leave to amend the complaint (CPLR 3025[b];  see Chen v. 111 Mott LLC, 200 A.D.3d 594, 595, 155 N.Y.S.3d 778 [1st Dept. 2021], lv dismissed 38 N.Y.3d 1168, 174 N.Y.S.3d 357, 195 N.E.3d 64 [2022];  Jacobson v. Croman, 107 A.D.3d 644, 645, 969 N.Y.S.2d 20 [1st Dept. 2013];  see also Kim v. White & Case LLP, 216 A.D.3d 408, 408, 189 N.Y.S.3d 88 [1st Dept. 2023]).

The court providently entertained plaintiffs’ successive motions for summary judgment (see Elihu v. Nicoleau, 173 A.D.3d 578, 104 N.Y.S.3d 616 [1st Dept. 2019]).  The motion was filed with the court's permission after the court denied, on procedural grounds, a previous motion for summary judgment made on the basis of new evidence, which implicated then unpleaded causes of actions under Labor Law §§ 191(1) and 195(1).

The court properly granted plaintiffs’ summary judgment motion.  Defendants failed to raise an issue of fact in opposition to plaintiffs’ prima facie showing that defendants failed to pay them as nonexempt manual workers on a weekly basis under Labor Law § 191(1).  Defendants did not submit any evidence countering plaintiffs’ evidence that one plaintiff was primarily a delivery driver despite performing some managerial tasks, and that the other was a warehouse worker (see Labor Law § 190[4];  see e.g. Kirby v. Carlo's Bakery 42nd & 8th LLC, 212 A.D.3d 441, 442, 179 N.Y.S.3d 578 [1st Dept. 2023]).  Defendants, as employers, were in possession of the relevant documents and had knowledge of the underlying facts related to their employees and pay protocols.

We have considered defendants’ remaining contentions and find them unavailing.