The Appellate Division unanimously reversed, on the law and the facts, with costs, the Order which denied third-party defendant's motion to dismiss the third-party complaint as against it. This is a putative class action in which plaintiff seeks to recover charges purported to be gratuities allegedly withheld from him and other catering service workers. The complaint alleges that defendant assessed mandatory charges to its customers, allowing them to believe that the charges were gratuities that would be distributed to waitstaff, and, instead, kept the charges for itself. Defendant commenced a third-party action against the company that supplied the waitstaff, seeking indemnification for damages that may be recovered from defendant in the first-party action. However, the third-party complaint alleges that defendant's mandatory charges to its customers were used to cover its own discretionary costs and does not allege that these charges were ever paid to or shared with third-party defendant. Moreover, there is no allegation either in the complaint or third-party complaint that third-party defendant wrongfully withheld any mandatory charges from the waitstaff. Further, defendant does not dispute third-party defendant's contention that it had nothing to do with defendant's decision to impose the mandatory charges or to retain them. Accordingly, defendant has not stated a cause of action for implied indemnification against third-party defendant.
Robinson v. Foremost Glatt Kosher Caterers, Inc., NY Slip Op 01219 (1st Dep't February 25, 2021)
