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May 2019

New York Attorneys Don Derrico and Frank Giambalvo Secure Defense Verdict in Wage and Hour Case for Restaurant Client

On May 15, Westchester Partner Don Derrico and New York City Senior Counsel Frank Giambalvo obtained a unanimous defense verdict in the United States District Court for the Eastern District of New York on behalf of the firm's clients, Mario Sbarro, Jerry Sbarro and Burton & Doyle of Great Neck.  

In this class action wage and hour matter, the plaintiffs, who were all former servers at the defendants’ steakhouse alleged that they were not paid minimum wage; the employer incorrectly took the tip credit and paid tips to non-customarily tipped employees that belong to them; their hours were shaved; they were forced to work after punching out; they were not paid for the spread of hours; and, they were subject to unlawful deductions from their pay for meals and customer walkouts. After a seven-day trial, the jury deliberated for less than two hours before returning with the verdict in favor of Mario Sbarro, finding that he was not the plaintiffs’ employer and thus not liable for alleged wage and hour violations under the Fair Labor Standards Act (FLSA) or New York Labor Law (NYLL).

In a class and collective action under the FLSA and NYLL, 29 plaintiffs, including the named plaintiff Ashraf Hussain, claimed that the defendants, including a defunct Long Island steakhouse and Mario Sbarro, as their employers, failed to pay them the compensation they were owed. The critical issue in the case was whether Mario Sbarro was the plaintiffs’ employer such that he could be held liable as to any of the plaintiffs’ claims. Despite the broad and liberal definition of employer under the FLSA and NYLL, the jury returned a favorable defense verdict for Mario Sbarro.

The jury heard testimony from eight witnesses, including four of the opt-in plaintiffs, Mario Sbarro, Genaro Sbarro and two former restaurant managers. The plaintiffs were seeking damages in upwards of $1,000,000.

Don Derrico was the lead trial lawyer and Frank Giambalvo was second chair. 

Donald G. Derrico
Francis Giambalvo