Labarbera & Landrigan, LLP, Goshen (Joshua A. Scerbo of
counsel), for appellant.
Virginia & Ambinder, LLP, New York (Ladonna M. Lusher of
counsel), for respondent.
Sweeny, J.P., Andrias, Moskowitz, Kahn, Gesmer, JJ.
Supreme Court, New York County (Carol R. Edmead, J.), entered
August 23, 2016, which denied defendant Human Care, LLC's
motion to dismiss the complaint, unanimously affirmed,
are not entitled to dismissal of the minimum wage, overtime,
and failure to pay wages claims. The merit of these claims
depends on whether plaintiff, who was employed by defendants
as a home health care attendant, falls within the category of
employees who need only be paid for 13 hours of every 24-hour
shift. We find that plaintiff has sufficiently alleged that
she does not fall within that category.
of Labor Regulations (12 NYCRR) § 142-2.1(b) provides
that the minimum wage must be paid for each hour an employee
is "required to be available for work at a place
prescribed by the employer, " except that a
"residential employee - one who lives on the premises of
the employer" need not be paid "during his or her
normal sleeping hours solely because he is required to be on
call" or "at any other time when he or she is free
to leave the place of employment" (12 NYCRR
142-2.1[b], ). A March 11, 2010 Department of Labor
(DOL) opinion letter provides further guidance regarding this
regulation, advising that "live-in employees, "
whether or not they are "residential employees, "
"must be paid not less than for thirteen hours per
twenty-four hour period provided that they are afforded at
least eight hours for sleep and actually receive five hours
of uninterrupted sleep, and that they are afforded three
hours for meals" (NY St Dept of Labor, Op No. RO-09-0169
at 4 [Mar. 11, 2010]).
are not required to embrace a regulatory construction that
conflicts with the plain meaning of the promulgated
language" (Matter of Visiting Nurse Serv. of N.Y.
Home Care v New York State Dept. of Health, 5 N.Y.3d
499, 506 ), or that is "irrational or
unreasonable" (Samiento v World Yacht Inc., 10
N.Y.3d 70, 79  [internal quotation marks omitted]).
that the DOL opinion conflicts with 12 NYCRR 142-2.1(b)
insofar as the opinion fails to distinguish between
"residential" and "nonresidential"
employees, and should thus not be followed in this respect
(see Lai Chan v Chinese-American Planning Council Home
Attendant Program, Inc., 50 Misc.3d 201, 213-216 [Sup
Ct, NY County 2015]; Andryeyeva v New York Health Care,
Inc., 45 Misc.3d 820, 826-833 [Sup Ct, Kings County
2014]; see also Kodirov v Community Home Care Referral
Serv., Inc., 35 Misc.3d 1221');">35 Misc.3d 1221 [A], 2012 NY Slip Op
50808[U], *2 [Sup Ct, Kings County 2012]). As such, if
plaintiff can demonstrate that she is a nonresidential
employee, she may recover unpaid wages for the hours worked
in excess of 13 hours a day.
alleges that she "maintained her own residence, and did
not live in' the homes of Defendants' clients."
Although plaintiff admitted that she "generally worked
approximately 168 hours per week" (or 24 hours a day, 7
days a week), it cannot be said at this early stage, prior to
any discovery, that she lived on her employers' premises
as a matter of law.
the viability of plaintiff's "spread of hours"
claim (see Department of Labor Regulations [12
NYCRR] § 142-2.4[a]) likewise turns on whether plaintiff
is entitled to be paid for the full 24 hours worked or only
13 of those hours, the motion court correctly denied the
motion to dismiss as to that claim.
are not entitled to dismissal of the breach of contract
claim. Plaintiff has standing to sue as a third-party
beneficiary of the alleged contracts requiring defendants to
pay plaintiff certain wages pursuant to Public Health Law
§ 3614-c (see Cox v NAP Constr. Co., Inc., 10
N.Y.3d 592, 601-603 ; Moreno v Future Care Health
Servs., Inc., 43 Misc.3d 1202');">43 Misc.3d 1202 [A], 2014 NY Slip Op
50449[U], *23-25 [Sup Ct, Kings County 2014]). The breach of
contract allegations give sufficient notice of the nature of
the claim (JP Morgan Chase v J.H. Elec. of N.Y.,
Inc., 69 A.D.3d 802, 803 [2d Dept 2010]; see also
Second Source Funding, LLC v Yellowstone Capital, LLC,
144 A.D.3d 445, 446 [1st Dept 2016]). Although the complaint
does not specifically identify the contracts or government
agencies at issue, its citation to Public Health Law §
3614-c makes clear that the contracts referenced are those
required for every company providing health care services
that seek reimbursement from Medicaid or Medicare
(see Public Health ...