(Breach of Contract)  208.  Plaintiffs repeat and reallege each and every allegation of the preceding  paragraphs hereof with the same force and effect as though fully set forth herein.  209.  Plaintiffs and members of the Class entered into employment contracts with  Defendants.  210.  Plaintiffs and members of the Class fully performed all their obligations under the  employment contracts.  211.  Defendants breached the employment contracts by failing to pay wages required  to be paid by the contracts to the Plaintiffs and members of the Class.  212.  Defendants’ breach has caused Plaintiffs and members of the Class to suffer  damages.  213.  As a result of Defendants’ breach of the employment agreements Plaintiffs and  members of the Class have been damaged in an amount to be determined at trial.  17.  Pursuant to 29 U.S.C. §207, Plaintiffs seek to prosecute their FLSA claims as a  collective action on behalf of all persons who are or were formerly employed by Defendant at  any time since April 13, 2011 (time tolled by failure to post notice) to the entry of judgment in  this case (the “Collective Action Period”), who were non-exempt employees within the meaning  of the FLSA and who were not paid minimum wages and/or overtime compensation at rates not  less than one and one-half times the regular rate of pay for hours worked in excess of forty hours  per workweek (the “Collective Action Members”).   18.  Upon information and belief, Defendants did not post a notice indicating that the  warehouse employees had a right to minimum wages and/or overtime wages.   20.  Plaintiffs will fairly and adequately protect the interests of the Collective Action  Members and have retained counsel that is experienced and competent in the fields of  employment law and class action litigation.  Plaintiffs have no interests that are contrary to or in  conflict with those members of this collective action.    21.  A collective action is superior to other available methods for the fair and efficient  adjudication of this controversy, since joinder of all members is impracticable. Furthermore,  inasmuch as the damages suffered by individual Collective Action Members may be relatively  small, the expense and burden of individual litigation make it virtually impossible for the  members of the collective action to individually seek redress for the wrongs done to them.  There  will be no difficulty in the management of this action as a collective action.    23.  Plaintiffs know of no difficulty that will be encountered in the management of this  litigation that would preclude its maintenance as a collective action.  24.  Plaintiffs sue on their own behalf and on behalf of a class of persons under Rules  23(a), (b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure.   25.  Plaintiffs bring their New York Labor Law claim on behalf of all persons who  were employed by Defendant at any time since April 11, 2011 to the entry of judgment in this  case (the “Class Period”), who were not paid all their straight time wages, minimum wages,  and/or overtime wages and/or were not provided proper notices required by the Wage Theft  Prevention Act (the “Class”) and/or were not paid the tips that they earned.   27.  The claims of Plaintiffs are typical of the claims of the Class, and a class action is  superior to other available methods for the fair and efficient adjudication of the controversy— particularly in the context of wage and hour litigation where individual plaintiffs lack the  financial resources to vigorously prosecute a lawsuit in federal court against corporate  defendants.    28.  The Defendants have acted or refused to act on grounds generally applicable to  the class, thereby making appropriate final injunctive relief or corresponding declaratory relief  with respect to the class as a whole.    29.  Plaintiffs are committed to pursuing his action and have retained competent  counsel experienced in employment law and class action litigation.    30.  Plaintiffs have the same interests in this matter as all other members of the class  and Plaintiffs’ claims are typical of the Class.     32.  Napolean Tewolde (“NAPOLEAN”) was employed by Flavor Boutique 796 Inc.,  Flavor Boutique 522 Inc.,   and Michael Friedlander (together “Defendant”) as a counter person  who prepared and sold ice cream products and hand delivered ice cream products (“Counter  Worker”) from about May 4, 2015 to January 29, 2017 (the “Napolean time period”).   33.  Defendant operated and operates a fast food ice cream store named “Holey  Cream” located at 796 Ninth Avenue, New York, N.Y. 10019 (the “Ice Cream Store”).     34.  During the Napolean time period, Defendant employed at any given time at least  5 Counter Workers and ran a business selling fast food ice cream products.   35.  During the Napolean time period, Napolean worked with at least 40 similar  Counter Worker employees as turnover was very high.   36.  During the time Napolean period, Napolean worked for Defendant as a Counter  Worker at the Ice Cream Store and prepared and sold ice cream products and hand delivered ice  cream products.   38.  During the Napolean time period, in certain weeks, Napolean worked more than  40 hours per week (“overtime’) and generally was not paid time and one half his regular wage  rate for his hours worked over forty in a workweek.   39.  During the Napolean time period, Napolean first signed in and out of his job using  a sign-in/sign-out sheet at the Ice Cream Store and then after about a year he signed in and out of  his job by typing his identification number into a time record application on an Ipad located at  the Ice Cream Store.    40.  During the Napolean time period, Napolean exclusively worked for Defendant.   41.  During the Napolean time period, the customers were provided the opportunity to  tip Napolean and the other Counter Workers by putting tips in a plastic cup labeled tips which  was on the counter and most customers did leave a tip in the plastic cup.  The customers also  tipped the Counter Workers by paying tips on their credit card payments and also by paying tips  through services, such as Grubhub, through which they ordered products for delivery.    42.  During the Napolean time period, Napolean and the other similar Counter Worker  employees were not paid by Defendants for all the tips that they earned and at times were not  paid in a timely manner for some of the tips that they earned.   43.  During the Napolean time period, Michael Friedlander was the operations  manager and owner of Defendant.   44.  Michael Friedlander hired Napolean as a Counter Worker for Defendant and  agreed to pay Napolean $13.00 per hour plus tips.   46.  Napolean repeatedly complained to Michael Friedlander about not being paid for  his tips and not being paid for his overtime at time and one half his regular hourly rate and not  being paid for all his hours worked, including his time working and on call during the alleged  breaks that he and the other Counter Workers never received.   47.  Michael Friedlander repeatedly said that he would investigate Napolean’s  complaints and talk with his accountants, but never got back to Napolean and never paid  Napolean the wages and tips that Napolean and the other Counter Worker employees were owed.   48.  During the Napolean time period, Napolean was generally not paid (a) for all his  hours worked; (b) time and one half his regular hourly rate for hours worked over forty in a  workweek (“overtime”); (c) an extra hour of pay for days on which I worked a spread of ten or  more hours, and (d) all the tips that were paid for his services.      49.  During the Napolean time period, Defendant did not pay Napolean for a 1/2 hour  alleged meal break per shift even though Defendant knew that Napolean was on call during  break periods and often required Napolean to work during break periods, if the store was busy.   50.  During the Napolean time period, Napolean was generally required to work  through scheduled breaks.  Nevertheless, Defendant deducted one half hour per shift from  Napolean’s hours worked for an alleged break and never paid Napolean any wages for this one  half hour during which Napolean was working and/or on call.   51.  On certain days, Napolean worked a spread of more than ten hours.   53.  During the Napolean time period, Napolean was not paid minimum wages and  overtime wages and was not paid an extra hour of pay for work performed at least ten hours apart  in a day.   54.  During the Napolean time period, Napolean’s job responsibilities did not require  any independent judgment, and Napolean did not have the power to hire or fire employees.   55.  During the Napolean time period, there were at least 40 other Counter Worker  employees who did similar work as Napolean and also had no power to hire or fire employees.   56.  During the Napolean time period, Napolean and these similar Counter Worker  employees of Defendant during certain weeks worked more than 40 hours a week for Defendant,  but were not paid time and one half for their hours worked over forty in a week.   57.  During the Napolean time period, Napolean and these other similar Counter  Worker employees were not paid wages for all their hours worked, were not paid minimum  wages for all their hours worked, were not paid for their time on call or working during alleged  meal breaks, were not paid for all their hours worked, and were not paid for all their tips earned.   58.  During the Napolean time period, Napolean and these other similar Counter  Worker employees worked more than 40 hours a week, but were not paid time and one half for  their wages over forty in a workweek and were not paid spread of hours pay for hours worked at  least ten hours apart and were not paid the tips that customers paid Defendants for their services.   59.  Throughout the Napolean time period, Defendant has likewise employed other  individuals, like Napolean, in positions as Counter Workers.   61.  Throughout the Napolean time period, such individuals have not been paid  minimum wages for all hours worked, have worked in excess of 40 hours per week and not been  paid overtime premium wages of one and one half times their regular hourly rate, and have  worked a spread of ten hours and have not been paid an extra hour of pay for days on which they  worked a spread of at least ten hours and have not been paid for all the tips that they earned.   NAPOLEAN TEWOLDE  