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F&W Wins Motion to Dismiss Counter-Claim

On May 7, 2015, F&W filed a lawsuit against a Nassau County restaurant, its owners, and a supervisor, alleging that they failed to properly pay the client overtime and sexually harassed the client.  Additionally, the complaint alleged the defendants retaliated against the client when she complained about the harassment.

After the complaint was filed and served, the defendants submitted their answer which is a response to the allegations.  In addition to answering, the defendants interposed a counter-claim — a claim against the plaintiff.  The defendants asserted that the complaint was “frivolous” and demanded payment of their attorneys fees.  The counter-claim did not assert any facts to support it.

On July 14, 2015, F&W filed a motion asking the Court to dismiss the counterclaim.  Partner, Peter J. Famighetti, argued that the counter-claim was insufficient because the defendants did not plead any facts which could support their assertion that the complaint was frivolous.

On December 21, 2015, United States Senior District Judge Arthur D. Spatt issued a decision and order agreeing with F&W and dismissing the defendants’ counterclaim.  Specifically, Judge Spatt stated, “the Court finds that the counterclaim fails to state a cognizable claim for relief.  In the Court’s view, the Defendants’ single-sentence allegation that the complaint is ‘frivolous’ is precisely the type of unsupported legal conclusion that other courts have declined to accept as true. . . .”

The parties will now continue the discovery process, but the Defendants will not be entitled to prosecute their counterclaim.

If you have a question about proper payment of wages or overtime, sexual harassment, or counterclaims, the employment lawyers at Famigehtti & Weinick, PLLC may be able to help.  Contact one of our lawyers at 631-352-0050 or via the web at


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