Rhonda Flores, Plaintiff, v. JOAN DISALVO JOHN DOES 10 ABC CORPORATIONS 10 (2026)

Plaintiff, Rhonda Flores, worked as a live-in nanny for defendant Gary Green from September 26, 2022, through June 10, 2023. Plaintiff and Green entered into a written employment contract executed December 13, 2022, that provided plaintiff a $125,000 annual salary, 19-hour workday, and a five-hour overnight rest break. Defendant DiSalvo served as Green's household manager.

Plaintiff alleges that she received no weekly payments for the first three months of her employment; was not paid in full; and did not get her rest break. Plaintiff also alleges that she submitted for reimbursement more than $20,000 in work-related expenses and that defendants ignored her request for reimbursement. Plaintiff further alleges that she received no severance when she was terminated. At termination, DiSalvo told plaintiff that her performance was "impeccable and professional" and that her termination was unrelated to performance. (NYSCEF No. 2 at 11.)

According to plaintiff, DiSalvo contacted placement agencies, including Hannah Barry-Mendez of Miss Hannah's Nanny Care, and investigators at the New York State Department of Labor and made false statements "that [p]laintiff was dishonest about not receiving overtime compensation or out-of-pocket reimburse[ment] because she paid Plaintiff cash." (Id. at 5.)

Plaintiff raises causes of action under the New York Labor Law (NYLL) overtime (first cause of action), payment (second and third causes of action), wage-notice, and wage-statement (fourth and fifth causes of action) provisions against defendants. She also asserts a claim for defamation per se against DiSalvo individually (sixth cause of action) and breach-of-contract and unjust-enrichment claims against Green (seventh and eighth causes of action).

On motion sequence 001, defendants move under CPLR 3211 (a) (7) to dismiss plaintiff's complaint. In addition, defendants and seek mandatory attorney fees under Civil Rights Law § 70-a (1) (anti-SLAPP law).¹

Plaintiff does not oppose dismissal of her (1) spread-of-hours claim (third cause of action) as against DiSalvo; (2) defamation claim (sixth cause of action) to the extent it is based on DiSalvo's communications to the New York State Department of Labor; (3) claims for punitive damages and reputational harm within the breach-of-contract claim (seventh cause of action); and (4) unjust-enrichment claim (eighth cause of action). (See NYSCEF No. 26 at 20.)

The motion is granted in part and denied in part.

DISCUSSION

I. Unpaid Overtime (First and Cause of Action)

Defendants move to dismiss plaintiff's claims under New York Labor Law §§ 650 et seq. for unpaid overtime work. Under 12 NYCRR 142-2.2, "[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate." And "[t]he minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer" and an employee who lives on the employer's premises, "shall not be deemed to be permitted to work or required to be available for work: (1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment." (12 NYCRR 142-2.1.)

Defendant argues that although plaintiff alleges that she worked as a live-in employee, she does not allege that she received insufficient sleep and meal time. (See NYSCEF No. 9 at 17.) According to defendant, "live-in employees must be paid for 13 hours per 24-hour period if they are afforded at least 8 hours sleep and actually receive 5 hours of uninterrupted sleep, and 3 hours for meals" (Id. at 10, citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 176 [2019].)

Plaintiff contends that she worked on a one-week-on, one-week-off rotation and that she worked 24 hours a week when she was "on." She further alleges that defendant's own payroll records show that they paid her for 19 hours a day and, that under their agreement, defendants were supposed to provide her with a five-hour undisturbed sleep break but failed to do so. (See NYSCEF No. 26 at 4-5.) Plaintiff argues that if the employee does not receive the minimum break time because the employee is assisting the charge, the employee is entitled to 24-hours' pay. (See id. at 5.)

In Andryeyeva, the Court of Appeals agreed with the Department of Labor interpretation of 12 NYCRR 142-2.1 [b] that the phrase "required to be available for work at a place prescribed by the employer" applies "to employees assigned to 24-hour shifts, (including home health care aides), to exclude up to 11 hours for sleep and meal breaks from compensable hours, based on DOL's understanding that these are regularly scheduled substantial periods of assignment-free personal time." (Andryeyeva, 33 NY3d at 176.) In other words, the Court of Appeals concluded that if the employee is both physically present on the job site and set to work at prescheduled time periods for more than 13 hours a day, then the employee is entitled to minimum wage for all hours worked.² (Id., citing 22 NYCRR 142-2.1 [b].)

Here, the complaint alleges that defendants expressly contracted to care for the child for five hours a night but failed to do so, leaving responsible for the child. But whether plaintiff was afforded the required amount of uninterrupted sleep poses a question of fact not resolvable on a motion to dismiss.

The branch of defendants' motion to dismiss the first cause of action is denied.³

II. Failure to Pay on Weekly Basis (Second Cause of Action)

New York Labor Law § 191 (1) (a) requires manual workers to be paid weekly. A domestic worker performing childcare qualifies as a manual worker. (See Beh v Community Care Companions Inc., 2021 WL 3914320, at *4 [WD NY 2021].) The First Department has recognized a private right of action for untimely wage payment under § 191, with liquidated damages available under § 198 (1-a). (See Vega v CM & Assocs. Constr. Mgt., LLC, 175 AD3d 1144, 1145 [1st Dept 2019]). The 2025 amendment to § 198 (1-a), given retroactive effect, confirms the private right of action while modifying the liquidated damages remedy. (See Euson v TRC Eng'rs, LLC, 2025 US Dist LEXIS 174193, at *23—24 [SD NY 2025]).

Plaintiff alleges that defendants did not pay her for her first three months of work (see NYSCEF No. 2 at ¶ 67) and that she received only partial payment for those three months on a later date (see id. at ¶ 71). She also claims that defendants did not pay plaintiff every week. (See id. at ¶ 118.) The court concludes that these allegations are sufficient to support a § 191 claim.

The branch of defendants' motion to dismiss the second cause of action is denied.

III. Spread of Hours (Third Cause of Action) (Against Green Only)

The spread-of-hours provision requires an employer to provide one additional hour of pay at minimum wage for any workday exceeding 10 hours. (See 12 NYCRR 146-1.6 [a] ["On each day on which the spread of hours exceeds 10, an employee shall receive one additional hour of pay at the basic minimum hour."].) Employees earning "more than the minimum wage rate generally [are] not entitled to receive spread-of-hours pay." (Benitez v Bolla Operating LI Corp., 189 AD3d 970, 972 [2d Dept 2020].)

The parties do not dispute that the applicable minimum wage is $15 an hour. Plaintiff's salary substantially exceeds the applicable minimum wage, and therefore she has no spread-of-hours claim. According to the parties' contract, plaintiff was to be paid $125,000 for working 26 weeks a year at an hourly rate of $32.26 an hour. (See NYSCEF No. 8 at 3.)

Plaintiff argues that Green did not pay her for five of the hours she worked each day, which effectively reduced plaintiff's hourly compensation to below the minimum wage. The court disagrees. Even assuming that plaintiff worked for 24 hours each day using the $125,000-for-26-week ratio, plaintiff would have earned $4,807.70 a week which is equal to $686.81 a day or $28.62 an hour. That amount is still above the minimum wage.

Plaintiff's third cause of action is dismissed.

IV. Wage Notice and Wage Statement Violations (Fourth and Fifth Causes of Action)

On her fourth cause of action plaintiff alleges that defendant violated the wage-notice provisions of New York Labor Law § 195 (1). On her fifth cause of action, plaintiff alleges that defendants violated the wage-statement provisions of § 195 (3), which requires the accompaniment of accurate pay stubs with each wage payment.

Defendants argue that plaintiff lacks standing to assert these claims that she did not receive the wage notice required by NYLL. (See NYSCEF No. 9 at 15.) According to defendants, plaintiff has not shown that she has suffered an injury-in-fact by receiving no notice. Defendants contend that the complaint alleges that (1) "she received a written contract that provided her rate of pay and distinguished overtime hours from nonovertime hours"; (2) she was aware of the terms of this contract before she actually received it"; and (3) that although the contract did not state her overtime rate, plaintiff was aware of that rate. (NYSCEF No. 9 at 15.)

Plaintiff argues that the employment contract did not satisfy § 195 (1) because it did not provide "[p]laintiff's overtime rate or include all information required by statute—as evidenced by the fact that paystubs later showed overtime rates ($48.39/$52.60) never mentioned in the Contract and never paid." (NYSCEF No. 26 at 11.)

Under Labor Law § 195 (1), "[t]he information required to be provided by one's employer— such as the specific rate of pay, the employer's official address, the amount of any deductions from gross wages, and other information solely within the employer's purview— generally cannot be obtained from another source, rendering the inability to obtain wage and employment information from one's employer a concrete harm." (Best Work Holdings (New York) LLC v Ma, 242 AD3d 503, 504 [1st Dept 2025].) Defendants do not dispute that the overtime rate was omitted from the contract, which, in this court's view, is a piece of information within the employer's purview. This alone is sufficient to confer plaintiff with standing. (See id. [holding that a § 195 [1] violation constitutes an injury in fact].)

The branch of defendants' motion to dismiss the fifth cause of action is denied.

Defendants provide no argument to support dismissing the fourth cause of action. The branch of the motion to dismiss that cause of action is denied.

V. NYLL Claims against DiSalvo (First, Second, Fourth, and Fifth Causes of Action)

Defendants argue that plaintiff's Labor Law claims should be dismissed against DiSalvo because she was not plaintiff's "employer."⁴ (See NYSCEF No. 9 at 16-17.) According to defendants. argue that DiSalvo was not plaintiff's employer because DiSalvo was not a party to plaintiff's employment contract. According to defendants, this means that DiSalvo did not hire plaintiff and the contract provides that the family may choose to terminate plaintiff—not that DiSalvo may do so. Defendant also says that the contract did not give DiSalvo power to supervise or control the conditions of plaintiff's employment, such as determining the rate of payment. Moreover, defendants say that plaintiff improperly characterizes DiSalvo as joint employers with Green although DiSalvo herself is one of Green's employees.

Under NYLL article 6, "the critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results." (Bynog v Cipriani Group, Inc., 1 NY3d 193, 198 [2003].) Factors to consider include "whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule." (Id.)

That DiSalvo is Green's employee and that plaintiff's employment contract did not reflect DiSalvo's responsibilities are insufficient to show that DiSalvo did not act in an employer capacity vis-à-vis plaintiff. Plaintiff alleges that "DiSalvo had discretion on how to pay employees, and controlled the daily activities of Defendant Green's household staff." (NYSCEF No. 1 at ¶ 16) Plaintiff also alleges that it was DiSalvo who fired her. (See id. at ¶ 20.) The court thus concludes that plaintiff has alleged that DiSalvo "exerted more than incidental control over the results produced and the means employed to achieve those results," as required to be an employer under article 6. (Dairy King, Inc. v Boar's Head Provisions Co., Inc., 246 AD3d 870, 875 [2d Dept 2026].)

VI. Defamation/Defamation Per Se (Sixth Cause of Action) (Against DiSalvo Only)

To state a defamation claim, plaintiff must allege (1) a false statement of fact; (2) about the plaintiff; (3) published to third parties; (4) with requisite fault; and (5) causing harm or constituting defamation per se. (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Defamation per se encompasses statements that charge a person with a serious crime or injure that person in their profession. (See Liberman v Gelstein, 80 NY2d 429, 435 [1992].) CPLR 3016 (a) requires the allegedly defamatory words to be set out in the complaint.

Plaintiff withdraws her defamation claim to the extent she alleges that DiSalvo "maliciously and intentionally submitted fake documents to the New York State Department of Labor to bolster her deceptive position that Plaintiff was paid cash for all of her out-of-pocket expenses and as part of her compensation for the straight time and overtime worked." (NYSCEF No. 1 at ¶ 131.) The remaining parts of plaintiff's defamation claim concern DiSalvo's statements to employment agencies. Plaintiff alleges that DiSalvo contacted several employment agencies "and informed them that the Plaintiff was suing the defendants for expenses and wages and that the Plaintiff was dishonest concerning the nonpayment because DiSalvo personally paid the plaintiff with cash." (Id. at ¶ 133.)

Defendants argue that the defamation claim fails, because plaintiff does not identify the specific statement made. (See NYSCEF No. 9 at 19.) They further contend that the communications are qualifiedly privileged and may be overcome only if plaintiff shows that the allegedly defamatory statements were made with actual malice. (See id.)

Plaintiff concedes that she was not present when the statements were made and learned of them through her employment agency. (NYSCEF No. 1 at ¶ 97.) In her complaint, plaintiff describes (1) the content of the statements (that plaintiff was dishonest about nonpayment because DiSalvo had paid her in cash); (2) the audience (plaintiff's placement agency owner, Hannah Barry-Mendez); (3) the time frame (sometime between June 2023 and July 2023); and (4) that the statements were false. (NYSCEF No. 2 at 12-13.)⁵ But this is insufficient under CPLR 3016. Plaintiff does not identify the "exact words" complained of." (See Offor v Mercy Med. Ctr., 171 AD3d 502, 503 [1st Dept 2019] [internal quotation marks omitted]; BCRE 230 Riverside LLC v Fuchs, 59 AD3d 282, 283 [1st Dept 2009] [reliance on third-party's paraphrasing of defamatory statement is insufficiently particular to plead a defamation claim].) And although she describes the time period during which DiSalvo made the alleged statements, she does not describe where or how they were made. (See Offer, 171 AD3d at 503.)

Plaintiff's defamation claim is therefore dismissed.

VII. Branch of Motion for Attorney Fees Under NY Anti-SLAPP

Defendants argue that they are entitled to attorney fees on plaintiff's defamation claim to the extent the claim arises out of DiSalvo's communications to the employment agencies.⁶ This court disagrees, because DiSalvo's statements did not involve matters of public concern, as required by Civil Rights Law § 76-a (1) (d). They pertain only to this private-employment dispute.⁷

The branch of defendants' motion for anti-SLAPP-based attorney fees is denied.

VIII. Breach of Contract (Seventh Cause of Action) (Against Green Only)

Defendants move to dismiss plaintiff's breach-of-contract claim to the extent she seeks reputational and punitive damages and attorney fees. Plaintiff does not oppose dismissal of the claims for reputational and punitive damages (See NYSCEF No. 26 at 13.) And plaintiff does not provide a contractual basis for attorney fees. Those claims are dismissed.

Defendants also move to dismiss plaintiff's damages request for "Lost income and retirement, pension, and social security contributions for the time; Plaintiff could have been working, but for the defendants' deceptive practices, which resulted in Plaintiff resigning from his employment" (NYSCEF No. 1 at ¶ 149.) But they assert no ground for doing so.

Accordingly, it is

ORDERED that the branch of defendants' motion to dismiss the first cause of action for unpaid overtime wages is denied; and it is further

ORDERED that the branch of defendants' motion to dismiss the second cause of action for failure to make weekly payments is denied and it is further

ORDERED that the branch of defendants' motion to dismiss the third cause of action for a spread-of-hours violation is granted; and it is further

ORDERED that the branch of defendants' motion to dismiss the fourth and fifth causes of action for NYLL notice and wage-statement violations is denied; and it is further

ORDERED that the branch of defendants' motion to dismiss plaintiffs first, second, fourth, and fifth causes of action against DiSalvo individually, is denied, and the third cause of action against DiSalvo is dismissed as withdrawn; and it is further

ORDERED that the branch of defendants' motion to dismiss the sixth cause of action for defamation against DiSalvo for claims made to placement agencies is granted; and it is further

ORDERED that the branch of defendants' motion for anti-SLAPP attorney fees is denied; and it is further

ORDERED that the branch of defendants' motion to dismiss the eighth cause of action for breach of contract is granted only to the extent that the requests for repetitional and punitive damages and attorney fees are dismissed, and is otherwise denied; and it is further

ORDERED that the parties shall appear before this court for a telephonic preliminary conference on June 24, 2026.

DATE 5/18/2026

FOOTNOTES

1.   On motion sequence 002, plaintiff moved to amend her complaint. This court already denied that motion because plaintiff failed to attach a proposed amended complaint. (See NYSCEF No. 23 [order on mot seq 002].) Plaintiff has not to sought to renew or reargue that motion. Defendants' motion to dismiss is therefore analyzed as directed at the original complaint.

2.   Although Andryeyeva arose in the context of home health-care aides, rather than live-in nannies, the parties do not dispute its application here.

3.   Alternatively, defendants argue that the portion plaintiff's unpaid-overtime claim for liquidated damages should be dismissed, because defendants did not act in bad faith. (See NYSCEF No. 9 at 12.) Defendants say that plaintiff "does not allege that she ever notified Defendants that, for a particular workweek, she did not receive uninterrupted sleep." (Id.) But defendants do not provide evidence about that. The court declines to dismiss this portion of plaintiff's claim.

4.   Defendants point to the "economic realty" test used in Fair Labor Standard Act disputes. (See Irizarry v Catsimatidis, 722 F 3d 99, 105 [2d Cir 2013] [internal quotation marks omitted] [enumerating the factors of the economic reality test: "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records"].) Some state courts have applied the economic-reality test to both FLSA and NYLL claims. (See e.g. Ammar v Carbone, 237 AD3d 883, 884 [2d Dept 2025].)

5.   To the extent plaintiff alleges that DiSalvo made allegedly defamatory statements to additional placement agencies (see NYSCEF No. 1 at ¶ 32), she does not identify those agencies.

6.   As stated above, plaintiff has withdrawn her defamation claim based on DiSalvo's statements to the Department of Labor. Defendants argue that plaintiff's withdrawal of this aspect of her claim weighs in favor of defendants' request for anti-SLAPP attorney fees. But this court is unpersuaded that DiSalvo's statements to the Department of Labor would raise public concern, rather than revolve around the particular employment situation in dispute.

7.   The court does not reach the question about whether DiSalvo's statements to the agencies were otherwise qualifiedly privileged or stated with actual malice.

Gerald Lebovits, J.