NEW YORK CITY (Legal Newsline) – Customers suing Applebee's after eating at two Times Square locations would apparently rather hire an attorney than add a few bucks when tipping their servers, and the owners of those restaurants are telling a federal judge that the plaintiffs have no case.

Kendal Ghee and Yang Shen in 2017 filed a class action lawsuit over claims that Applebee's Neighborhood Grill and Bar restaurants "impose" on patrons a hidden mandatory surcharge for gratuities. The companies that own the locations say they add gratuity to the bills at Times Square restaurants because some international tourists are not familiar with the American custom of tipping.

"Their failure to tip wreaks havoc on restaurant staff who depend on gratuities as a substantial part of their paycheck," attorneys wrote.

"As a result, a number of Times Square restaurants who cater to tourists seek to find ways to assist their workers in receiving their well-earned gratuities. Applebee’s is no different in trying to protect its workers. Here, the practice of adding a gratuity when patrons choose to order and pay through an optional on-table electronic device is challenged by Plaintiffs."

The plaintiffs are represented by noted New York City class action lawyer C.K. Lee's Lee Litigation Group, which has made recent headlines over its prolific amount of lawsuits, particularly those which purport to serve the disabled.

In the original March complaint filed in the U.S. District Court for the Eastern District of New York, Ghee and Shen argued two Applebee’s locations in New York would not allow them to leave less than 15 or 18 percent gratuity on a table-top computer device. 

They allege they were not satisfied with their service and wished to pay a smaller amount.

“Defendants falsely itemized customers’ bills by calling their surcharge a ‘tip,’ disguising the fact that the surcharge is a mandatory surcharge and is not optional,” according to the original complaint.

The Applebee's defendants see it differently, noting the plaintiffs agreed to the tip amount.

“This lawsuit should be dismissed because the gratuities at issue were clearly disclosed, were optional, were intentionally paid, and their assessment is otherwise not actionable under Southern District precedent,” the companies say.

“Plaintiffs cannot plausibly plead that defendants breached the alleged contract by advertising food and beverage prices exclusive of gratuity, when the menu clearly denoted that said pricing did not include gratuity."

“Having established that the gratuities are customary, were disclosed and not hidden, and that the inconvenience of speaking to a server is not actionable, the General Business Law, breach of contract and negligent misrepresentation claims in the complaint are all appropriate for dismissal pursuant to Rule 12.”

Lee says the Applebee's defendants allow consumers to evade the charge if patrons are willing to wait, raise the issue with the wait staff or suffer discomfiture and retaliation from the wait staff for not tipping appropriately.

Paying the appropriate tip or not, the plaintiffs argued the whole experience was deceitful, inevitably causing them harm.

“Even if plaintiffs were able to reverse the surcharge by having a waiter or manager reverse it, that would not minimize the fact that defendants committed consumer fraud in the first place. A defendant cannot shield itself from liability by acting lawfully only once it is caught," Lee's firm wrote.

A trial by jury date is yet to be announced. U.S. District Judge Paul Oetken has not ruled on the Applebee's defendants' motion.

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