Michalow et al v. East Coast Restoration & Consulting Corp. et al

Filing 132

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the annexed Memorandum and Order, the court adopts Magistrate Judge Levy's Report and Recommendation 116 in its entirety. Plaintiffs' motion for summary judgment is gran ted with respect to defendants Kaczmarek, K. Marcisquak, East Coast Restoration & Consulting Corp., and Midtown Restoration, Inc., but denied as to all other defendants. Plaintiffs' counsel shall serve a copy of the annexed Memorandum and Order on all pro se parties and note service on the docket. The parties shall confer and submit a joint letter no later than April 13, 2018 as to how they intend to proceed. Ordered by Judge Kiyo A. Matsumoto on 3/31/2018. (Tata, Vivek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------x
DARIUSZ MICHALOW, et al.,
Plaintiffs,
ORDER ADOPTING REPORT
AND RECOMMENDATION
09-CV-5475(KAM)(RML)

-againstEAST COAST RESTORATION &
CONSULTING CORP., et al.,

Defendants.
--------------------------------x
KIYO A. MATSUMOTO, United States District Judge:
In this collective and class action brought under the
Fair Labor Standards Act (“FLSA”) and New York Labor Law
(“NYLL”), the plaintiffs have moved for summary judgment against
the defendants as to liability only.

Upon a referral from Judge

Sandra L. Townes, Magistrate Judge Robert M. Levy issued a
report and recommendation, in which he concluded that summary
judgment should be granted against four defendants and denied
against the remaining six defendants.
Recommendation (“R&R”).)

(ECF No. 116, Report and

The four defendants whom Judge Levy

found to be liable have objected to the report.
plaintiffs have also filed objections.

Two pro se

For the reasons set

forth below, the Court overrules all objections and adopts the
report in its entirety.1

1

This case was reassigned to me in February 2018, after Judge Levy issued his
report and after the parties filed their objections.

I.

Background
The Court assumes familiarity with this case’s

procedural and factual history as set forth in Judge Levy’s
report.

(See R&R at 1-6.)

In brief, three plaintiffs — all of

whom were construction workers allegedly employed by defendants
— commenced this action in December 2009, on behalf of
themselves and others similarly situated, seeking damages under
the FLSA and NYLL.

(ECF No. 1.)

In June 2010, the Honorable

Marilyn D. Go, the magistrate judge initially assigned to this
case, so-ordered the parties’ stipulation certifying the case as
a collective action under the FLSA.

(R&R at 4; ECF No. 12.)

In

January 2012, Judge Townes certified the case as a class action
under the NYLL.

(R&R at 5; ECF No. 32.)

Plaintiffs’ counsel,

Virginia & Ambinder, LLP, was designated to represent the class
and the plaintiffs who joined the collective action.
12, 31, 32.)

(ECF Nos.

In November 2012, plaintiffs filed an amended

complaint, in which they added a fourth plaintiff and several
additional defendants (for 10 defendants total).

(ECF No. 58.)

In July 2014, after the close of discovery, Virginia &
Ambinder moved to withdraw as counsel for two named plaintiffs,
Tomasz Helwing and Sebastian Tkaczyk, citing a “‘fundamental
disagreement’” that created a conflict of interest between the
firm’s duty to represent the class and its duty to represent

2

these two individuals.

(R&R at 5.)

Judge Go granted the firm’s

motion to withdraw as counsel for Helwing and Tkaczyk.
ECF No. 86).

(Id.;

Virginia & Ambinder continues to represent all

other plaintiffs and class members.

(R&R at 6.)

In November 2014, Virginia & Ambinder filed a motion
for summary judgment as to liability only on behalf of all
plaintiffs and class members, except Helwing and Tkaczyk.2
No. 99.)

(ECF

Attorney Michael Rabinowitz opposed the motion for

defendants — including, as relevant here, defendants Andrzej
Kaczmarek and Midtown Restoration, Inc. (“Midtown”).3
98.)

(ECF No.

Judge Townes referred plaintiffs’ motion for summary

judgment to Judge Go for a report and recommendation.
entry dated 11/6/2014.)

(ECF

After the case was reassigned to him,

Judge Levy scheduled oral argument, which took place in March
2017.

(ECF entries dated 11/23/2016, 12/2/2016, and 1/10/2017.)
On July 11, 2017, Judge Levy issued a report in which

he recommended that summary judgment be granted against four

2

Helwing and Tkaczyk, who are proceeding pro se, did not affirmatively move
for summary judgment, though they did file a submission styled as a reply
memorandum of law (ECF No. 106). That memorandum, however, is largely an
attack on their former counsel; it does not address defendants’ liability in
any coherent way.
3 Previously, Judge Go granted Rabinowitz’s motion to withdraw as counsel for
defendant Bozena Barbara Marcisquak (“B. Marcisquak”) given her failure to
communicate with him. (ECF No. 78.) Though the parties have yet to file a
suggestion of death, it appears that B. Marcisquak passed away some time ago.
(R&R at 2 n.2.) In defendants’ opposition papers, Rabinowitz neglected to
specify which defendants he was representing. (ECF No. 98.) At oral
argument before Judge Levy, however, Rabinowitz clarified that he was counsel
to all defendants except B. Marcisquak. (ECF No. 110, Oral Argument
Transcript (“Oral Arg. Tr.”) at 2:24–3:17.)

3

defendants — Kaczmarek, Midtown, Karol Marcisquak (“K.
Marcisquak”), and East Coast Restoration & Consulting Corp.
(“ECRC”) — and denied against the six other defendants.

(R&R at

2, 29.)
Ten days later, in a letter to the Court dated July
21, 2017, defendant Kaczmarek stated that he had “lost trust” in
Rabinowitz and was therefore discharging him as his counsel.
(ECF No. 118.)

In October 2017, two attorneys from the law firm

Portale Randazzo LLP filed notices of appearance on Kaczmarek’s
behalf (ECF Nos. 123, 124), and Judge Levy substituted Portale
Randazzo as counsel for Kaczmarek.

(Text-Only Order dated

10/16/2017.)
Collectively, the parties have filed three sets of
objections to Judge Levy’s report.

First, defendant Kaczmarek,

through his new counsel, objects to the finding that he is
liable for the wage-and-hour violations as plaintiffs’ employer.
(ECF No. 128, Kaczmarek’s Objections (“Kaczmarek’s Objs.”).)
Second, defendants K. Marcisquak, ECRC, and Midtown — all of
whom continue to be represented by Rabinowitz — object to Judge
Levy’s finding them liable.

(ECF No. 127, K. Marcisquak, ECRC,

and Midtown’s Objections (“Defs.’ Objs.”).)

Third, pro se

plaintiffs Helwing and Tkaczyk jointly filed objections in which
they appear to contend that Judge Levy erred by recommending
that summary judgment be denied against defendants Grzegorz

4

Sobolewski and Marcin Podgorny.

(ECF No. 120, Helwing and

Tkaczyk’s Objections (“Pls.’ Objs.”).)

The remaining plaintiffs

and class members — who continue to be represented by Virginia &
Ambinder — argue that Judge Levy’s report should be adopted in
its entirety.
II.

(ECF No. 131.)

Discussion
Legal Standards
Review of Report and Recommendation
A district court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the
magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

If a party makes

specific and timely written objections to the magistrate judge’s
findings and recommendations, the district court must review de
novo “those portions of the report . . . to which objection is
made.”

Id.; see also Fed. R. Civ. P. 72(b)(3).

However, if “no

objections are made, or if an objection is general, conclusory,
perfunctory, or a mere reiteration of an argument made to the
magistrate judge, a district court need review that aspect of a
report [and] recommendation only for clear error.”

Bassett v.

Elec. Arts, Inc., 93 F. Supp. 3d 95, 101 (E.D.N.Y. 2015)
(quoting Rahman v. Fischer, No. 10-CV-1496 (LEK) (TWD), 2014 WL
688980, at *1 (N.D.N.Y. Feb. 20, 2014)).
“‘[T]he submissions of a pro se litigant must be
construed liberally and interpreted ‘to raise the strongest

5

arguments that they suggest.’”

Figueroa v. City of New York,

No. 11-CV-3160 (ARR) (CLP), 2017 WL 6596631, at *2 (E.D.N.Y.
Dec. 22, 2017) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)).

Yet “‘even a pro se party’s

objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s
proposal.’”

Id. (quoting Howell v. Port Chester Police Station,

No. 09-CV-1651 (CS) (LMS), 2010 WL 930981, at *1 (S.D.N.Y. Mar.
15, 2010)).
Summary Judgment Standard
Summary judgment is appropriate where “the evidence,
viewed in the light most favorable to the party against whom it
was entered, demonstrates that there are no genuine issues of
material fact and that the judgment is warranted as a matter of
law.”

Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir.

2014) (internal quotation marks omitted); see also Fed. R. Civ.
P. 56(a).

“A fact is material if it might affect the outcome of

the suit under the governing law, and an issue of fact is
‘genuine’ if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Windsor v. United

States, 699 F.3d 169, 192 (2d Cir. 2012) (internal quotation
marks and alteration omitted).

6

Employer Status under the FLSA and NYLL
“The FLSA and the NYLL apply only to ‘employers.’”
Charvac v. M & T Project Managers of New York, Inc., No. 12-CV5637 (CBA) (RER), 2015 WL 5475531, at *2 (E.D.N.Y. June 17,
2015), adopted as modified, 2015 WL 5518348 (E.D.N.Y. Sept. 17,
2015).

The FLSA broadly defines an “employer” as “any person

acting directly or indirectly in the interest of an employer in
relation to an employee.”

29 U.S.C. § 203(d); see also Charvac,

2015 WL 5475531, at *3 (“Like the FLSA, the NYLL definition of
‘employer’ is an expansive one . . . .”).

“[T]he determination

of whether an employer-employee relationship exists for purposes
of the FLSA should be grounded in ‘economic reality rather than
technical concepts[.]’”

Barfield v. New York City Health &

Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 2008) (quoting Goldberg
v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961)); see
also, e.g., Chen v. DG&S NY, Inc., No. 14-CV-3435 (LDH) (RLM),
2016 WL 5678543, at *2 (E.D.N.Y. Sept. 29, 2016) (applying the
“economic reality” test to FLSA and NYLL claims).
In Carter v. Dutchess Community College, 735 F.2d 8
(2d Cir. 1984), the Second Circuit articulated four factors to
guide this inquiry.

These factors are “whether the alleged

employer (1) had the power to hire and fire the employees, (2)
supervised and controlled employee work schedules or conditions
of employment, (3) determined the rate and method of payment,

7

and (4) maintained employment records.”
(internal quotation marks omitted).

Carter, 735 F.2d at 12

“[N]o one of these factors

is dispositive, nor [are] they, as a whole, exclusive.”
Barfield, 537 F.3d at 142–43 (internal quotation marks omitted).
For individuals to be liable for FLSA violations, they
“need not directly control employees,” but “must at least
exercise ‘operational control’ over the employee’s employment.”
Garcia v. Vill. Red Rest. Corp., No. 15-CV-6292 (JCF), 2017 WL
1906861, at *4 (S.D.N.Y. May 8, 2017) (quoting Irizarry v.
Catsimatidis, 722 F.3d 99, 106–09 (2d Cir. 2013)).

Operational

control includes “involvement in a company in a manner that
affects employment-related factors such as workplace conditions
and operations, personnel, or compensation.”

Irizarry, 722 F.3d

at 109.
Finally, an “employee may have more than one
employer.”

Jindan Wu v. Nat. Tofu Rest. Corp., No. 16-CV-3613

(ARR) (ST), 2018 WL 1009274, at *10 (E.D.N.Y. Feb. 20, 2018).
“When there are multiple employers, ‘all joint employers are
responsible, both individually and jointly, for compliance with
all of the applicable provisions of [the FLSA].’”
29 C.F.R. § 791.2(a)).

Id. (quoting

“The same is true under New York law[.]”

Id.

8

Judge Levy’s Report and Recommendation
In his report, Judge Levy noted at the outset that all
represented defendants (meaning all defendants except B.
Marcisquak, supra at 3 n.3) had conceded at oral argument that
wage-and-hour violations occurred during the relevant period.
(R&R at 2.)

Thus, the only question presented by plaintiffs’

motion was whether each defendant was liable for the violations.
(Id. at 2–3.)

This question, in turn, hinged on whether each

defendant was an “employer” under the FLSA and NYLL.

(Id. at 2–

3, 8 n.8.)
Defendants also conceded at oral argument that two
corporate defendants — Midtown and ECRC — acted as plaintiffs’
joint employers.

(Id. at 3.)

Given this concession, Judge Levy

recommended that summary judgment be granted against these
defendants without discussing why they satisfied the definition
of an “employer” under the FLSA and NYLL.

(Id. at 3, 29.)

Though defendants argued otherwise, Judge Levy also
found that Kaczmarek was plaintiffs’ employer and therefore
liable for the wage-and-hour violations.

(Id. at 12–16.)

Judge

Levy noted that Kaczmarek was the sole owner and officer of
Midtown — an entity that, by defendants’ own admission, employed
plaintiffs.

(Id. at 12.)

Judge Levy also found that Kaczmarek

was involved in the operations of ECRC — the other entity that
defendants admitted employed plaintiffs.

9

(Id.)

For example,

Judge Levy cited evidence that ECRC’s first office was
established in Kaczmarek’s apartment.

(Id.)

New York state

records also listed his apartment as the address for service of
process and as the address of its chief executive officer.
(Id.)

Further, Kaczmarek, through Midtown, was the lessee of

record for ECRC’s equipment facility.

(Id.)

As further noted by Judge Levy, the parties disputed
Kaczmarek’s corporate title within ECRC and the extent of his
authority to act on the corporation’s behalf, including his
power to execute contracts for it.

(Id. at 13.)

Yet, applying

the so-called Carter factors, discussed above, Judge Levy found
that Kaczmarek had exercised significant control over
plaintiffs’ employment.

First, concerning the power to hire and

fire employees, plaintiff Dariusz Michalow testified that
Kaczmarek had hired him.

(Id. at 14.)

Also, defendant

Sobolewski testified that Kaczmarek could fire plaintiffs.
(Id.).

Second, regarding control over plaintiffs’ work

schedules and the conditions of their employment, plaintiff
Michalow attested that Kaczmarek had assigned him to projects
and had told him when and where to report for work.
15.)

(Id. at

Plaintiff Helwing also testified that Kaczmarek had been

one of his “bosses” who controlled his schedule and told him
where to report for work.

(Id.)

Further, defendant Sobolewski

testified that, as part of Kaczmarek’s role as defendants’

10

“estimator,” he would “make sure the jobs run well and according
to the details he estimated” and that “the locations that he had
estimated on a building were all well taken care of, and were
all worked on.”

(Id. at 14–15.)

Third, concerning control over

the rate and method of plaintiffs’ compensation, Sobolewski
testified that Kaczmarek had determined employees’ hourly wages
and had approved their weekly timesheets.

(Id. at 15.)

Also,

plaintiff Michalow attested that his paychecks sometimes bore
Kaczmarek’s signature.

(Id.)

Given the uncontroverted evidence

establishing Kaczmarek’s ownership of Midtown, his involvement
in ECRC’s operations, and his control over plaintiffs’
employment, Judge Levy found that Kaczmarek was, as a matter of
law, plaintiffs’ employer.

(Id. at 15–16.)

Judge Levy also recommended that the Court grant
summary judgment against defendant K. Marcisquak given
undisputed evidence establishing his control over ECRC’s
operations and plaintiffs’ employment.

(Id. at 16–18.)

For

example, defendant Sobolewski testified that K. Marcisquak and
his wife (defendant B. Marcisquak) had co-founded ECRC, which
defendants conceded was plaintiffs’ employer.

(Id. at 17.)

Also, K. Marcisquak had acted on ECRC’s behalf in dealings with
a subcontractor.

(Id.)

Concerning the Carter factors,

defendant Sobolewski testified that K. Marcisquak had recruited
him to become ECRC’s chief salesman.

11

(Id.)

Plaintiff Tkaczyk

testified that K. Marcisquak had hired him, assigned him to
projects, and distributed his wages.

(Id.)

Further, plaintiff

Helwing testified that K. Marcisquak had been one of his
“bosses” who assigned him to projects and set his daily
schedule.

(Id.)

Although defendants argued that there were

disputed issues of fact regarding K. Marcisquak’s liability,
Judge Levy noted that they had failed to identify any and, thus,
Judge Levy concluded that the uncontroverted evidence
established that K. Marcisquak was liable as plaintiffs’
employer.

(Id. at 17–18.)
Judge Levy found genuine disputes of material fact

with respect to the remaining defendants — including, as
relevant here, defendants Sobolewski and Podgorny.
24.)

(Id. at 18–

Podgorny testified that he had worked for ECRC as a truck

driver and messenger, and that his position did not include
supervisory or corporate responsibilities.

(Id. at 18.)

Consistent with this representation, defendant Sobolewski and
plaintiff Michalow had both referred to Podgorny as the
“driver.”

(Id.)

Although plaintiff Helwing testified that

Podgorny had been one of his “bosses” who dictated his schedule,
and although plaintiff Michalow testified that Podgorny had
sometimes distributed his paycheck to him, Judge Levy
recommended that plaintiffs’ motion be denied as to Podgorny

12

given the evidence that he was merely a driver and messenger.
(Id. at 18–19.)
Regarding Sobolewski, evidence in the record indicated
that he had exercised operational control over ECRC and
plaintiffs’ employment, but Judge Levy determined that enough
contradictory evidence existed to create a triable issue of
fact.

(Id. at 19–24.)

For example, plaintiff Helwing testified

that Sobolewski had been one of his “bosses” who controlled his
schedule, but Sobolewski testified that he was a salesperson
whose responsibilities did not include supervising plaintiffs.
(Id. at 19, 21–22.)

Although there was evidence that Sobolewski

was involved in hiring employees, he testified that his
authority in this regard was limited.

(Id. at 21.)

Sobolewski

admitted that he could sign paychecks, but his role in
compensation matters was otherwise unclear.

(Id. at 22–23.)

Thus, viewing the evidence in the light most favorable to
Sobolewski, Judge Levy concluded that a reasonable juror could
find that he “was a high level sales employee of ECRC, but not
an owner or officer, and that his control over plaintiffs’
employment was circumscribed.”

(Id. at 24.)

For that reason,

Judge Levy recommended that plaintiffs’ motion be denied as to
Sobolewski.4

4

In addition to Podgorny and Sobolewski, Judge Levy also recommended that
summary judgment be denied against four other defendants: B. Marcisquak, East
Coast Installation & Consulting Corp., East Coast Restoration & Construction

13

Defendants’ Objections
Kaczmarek
Kaczmarek concedes that, on the record before Judge
Levy, there was no triable issue of fact as to his liability.
In his words, Judge Levy “could not identify the issues of fact
that preclude[d] summary judgment because they were not
submitted for review.”

(Kaczmarek’s Objs. at 2; see also id. at

7 (admitting Judge Levy “was not provided with evidence that
raised triable issues of fact” and that “issues of fact existed
within the record at the time of summary judgment briefing, but
counsel failed to submit documents”).)

Through his objections,

Kaczmarek seeks to complete the record by presenting evidence
that was not before the magistrate judge — including, among
other things, his complete deposition transcript (ECF No. 128-3,
“Kaczmarek Dep.”) and a recently prepared affidavit (ECF No.
128-6, “Kaczmarek Aff.”).

“[W]ith the benefit of a complete

record,” Kaczmarek urges the Court to “reject Judge Levy’s

Consulting Corp., and Roofing Systems Consulting Corp. (R&R at 29.) The
represented plaintiffs do not object to this (or any other) portion of Judge
Levy’s report. (EFC No. 131). To the extent that pro se plaintiffs Helwing
and Tkaczyk object, they have not done so with the required degree of clarity
and specificity to trigger de novo review. Indeed, their objections mention
only one of these four defendants by name and do so only in passing. (Pls.’
Objs. at 2 (mentioning “East Coast Installation & Consulting Corp.”).) Given
that no party has lodged specific objections to Judge Levy’s recommendations
as to these defendants, the Court has reviewed these recommendations for
clear error only. Finding none, the Court adopts the recommendations and
denies summary judgment against these four defendants.

14

recommendation because . . . material issues of fact [are] in
dispute.”

(Kaczmarek’s Objs. at 2.)
Citing these newly submitted materials, Kaczmarek

contests facts that Judge Levy treated as undisputed.

For

example, at oral argument before Judge Levy, defendants conceded
that Midtown was plaintiffs’ employer.
at 9.)

(R&R at 3; Oral Arg. Tr.

In his newly prepared affidavit, however, Kaczmarek

attests that Midtown — a company that he solely owned — could
not have employed plaintiffs given that the company dissolved
long ago.

(Kaczmarek Aff. ¶¶ 9–10; Kaczmarek’s Objs. at 8.)

Kaczmarek contends that his prior counsel (Rabinowitz) had
confused Midtown with another similarly named (non-party)
corporate entity.

(Kaczmarek’s Objs. at 4.)

In the same

affidavit, Kaczmarek disputes the notion that ECRC was formed in
his apartment—noting that he had leased out the unit to his
nephew and his nephew’s wife (defendants K. Marcisquak and B.
Marcisquak, respectively).

(Id. at 9; Kaczmarek Aff. ¶ 18;

Kaczmarek Dep. at 33, 42.)

Further, Kaczmarek cites portions of

his deposition transcript — which were not before Judge Levy —
to contest Judge Levy’s findings concerning his authority to
hire and fire plaintiffs, control the conditions of their
employment, set their work schedules, and make compensation
decisions.

(Kaczmarek’s Objs. at 10–12.)

15

Through his new counsel, Kaczmarek blames his former
counsel Rabinowitz for failing to present this evidence in the
first instance.

Kaczmarek attributes these failures to a

“conflict of interest” between him and Sobolewski, which
Kaczmarek believes undermined Rabinowitz’s representation of
him.

(Id. at 1, 2.)

To support this argument, Kaczmarek notes

that Judge Levy relied on portions of Sobolewski’s deposition
testimony to find him liable.

(Id. at 1.)

“A district court will ordinarily refuse to consider
new arguments, evidence, or law that could have been, but was
not, presented to the magistrate judge.”

Kruger v. Virgin Atl.

Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013), aff’d,
578 F. App’x 51 (2d Cir. 2014).

After all, “[f]or the district

judge to review new evidence or arguments ‘would reduce the
magistrate’s work to something akin to a meaningless dress
rehearsal.’”

In re Consol. RNC Cases, 2009 WL 130178, at *10

(S.D.N.Y. Jan. 8, 2009) (quoting Wong v. Healthfirst, Inc., No.
04-CV-10061 (DAB), 2006 WL 2457944, at *1 (S.D.N.Y. Aug. 23,
2006)); see also Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir.
1998) (“Considerations of efficiency and fairness militate in
favor of a full evidentiary submission for the Magistrate
Judge’s consideration . . . .”).

Although a district judge may

entertain new evidence and new arguments when reviewing a report
and recommendation, doing so “is disfavored absent a ‘most

16

compelling reason’ for the failure to present such evidence or
arguments in the first instance.”

In re Consol. RNC Cases, 2009

WL 130178, at *10 (quoting Housing Works, Inc. v. Turner, No.
00-CV-1122 (LAK), 2005 WL 713609, at *2 (S.D.N.Y. Mar. 30,
2005)).
Further, “‘civil litigants are bound by the acts and
omissions of their freely selected attorneys.’”

Kurzberg v.

Ashcroft, No. 04-CV-3950, 2006 WL 2738991, at *6 (E.D.N.Y. Sept.
25, 2006) (quoting Reilly v. NatWest Mkts. Grp., Inc., 181 F.3d
253, 271 (2d Cir. 1999)).5

By extension, “‘a change of counsel

does not relieve a party of the effects of . . . prior counsel’s
lapses.’”

Lamparelli Constr. Co., Inc. v. Arrow Wood Prod.,

Inc., No. 15-CV-623 (RJA) (JJM), 2016 WL 1387239, at *1
(W.D.N.Y. Apr. 8, 2016) (quoting Brownstone Publishing, LLC v.
AT & T, Inc., No. 07-CV-1630, 2009 WL 799546, *1 (S.D. Ind. Mar.
24, 2009)).
Kaczmarek asks the Court to consider evidence and
arguments not presented to Judge Levy, arguing that a conflict
between him and Sobolewski inhibited Rabinowitz’s representation

5

See also, e.g., Holland v. Florida, 560 U.S. 631, 664 (2010) (“Because the
attorney is the litigant’s agent, the attorney’s acts (or failures to act)
within the scope of the representation are treated as those of his client
. . . .”); S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998) (“Normally,
the conduct of an attorney is imputed to his client, for allowing a party to
evade the consequences of the acts or omissions of his freely selected agent
would be wholly inconsistent with our system of representative litigation, in
which each party is deemed bound by the acts of his lawyer-agent.”) (internal
quotation marks and alterations omitted).

17

of his interests.

Yet, even though Sobolewski gave testimony

that helped establish Kaczmarek’s liability, there is no
indication that any conflict between these defendants adversely
affected Rabinowitz’s performance.

Cf. Perez v. PetSmart, Inc.,

No. 10-CV-5339 (LDW) (ETB), 2011 WL 4026910, at *3 (E.D.N.Y.
Sept. 12, 2011) (“When counsel jointly represents multiple
defendants, disqualification will be warranted only when
‘counsel actively represented conflicting interests and . . . an
actual conflict of interest adversely affected the defense
lawyer’s performance.’ . . . That is, counsel will not be
disqualified unless he actually takes a position that benefits
one client to the detriment of another.”) (quoting Patterson v.
Balsamico, 440 F.3d 104, 115 (2d Cir. 2006)).
To be sure, no defendant received stellar
representation from Rabinowitz before Judge Levy.

The attorney

failed to submit a Local Civil Rule 56.1 counterstatement.6

The

seven-page opposition memorandum that Rabinowitz authored (ECF
No. 98.) contained no evidentiary citations, and the exhibits
accompanying his submission were sparse.7

Rabinowitz’s

lackadaisical approach to motion practice may have harmed

6

Despite this violation of Local Civil Rule 56.1, Judge Levy did not
reflexively adopt plaintiffs’ 56.1 Statement of Undisputed Facts, and instead
“independently ‘conduct[ed] an assiduous review of the record.’” (R&R at 3
n.3 (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)).)
7 On this score, the Court notes that plaintiffs, not defendants, annexed
Sobolewski’s full deposition transcript to their motion papers. (ECF No.
100-14.)

18

Kaczmarek more than his codefendants, but there is no indication
that his omissions owed to a conflict.

For this reason, the

Court will not consider arguments and evidence not presented to
Judge Levy.

See Guity v. Uniondale Union Free Sch. Dist., No.

12-CV-1482 (SJF) (AKT), 2014 WL 795576, at *4–5 (E.D.N.Y. Feb.
27, 2014) (refusing to excuse plaintiff for conduct of prior
counsel despite plaintiff’s allegation that “there was a
‘conflict of interest’ between her and her prior counsel” and
noting that “‘[b]ecause the attorney is the litigant’s agent,
the attorney’s acts (or failures to act) within the scope of the
representation are treated as those of his client’”)
(quoting Holland, 560 U.S. at 664); Azkour v. Little Rest
Twelve, Inc., No. 10-CV-4132 (RJS) (KNF), 2012 WL 1026730, at
*2–3 (S.D.N.Y. Mar. 27, 2012) (refusing to consider evidence not
submitted to magistrate judge where defendant retained new
counsel after report and recommendation was issued and noting
that “parties in civil matters are responsible for the errors
made by their counsel”); Mast Indus., Inc. v. Mann, No. 88-CV3631 (CSH), 1991 WL 12359, at *1 (S.D.N.Y. Jan. 25, 1991)
(“Successor counsel asserts that there was a conflict of
interest between his predecessor and defendant from the
inception of the case.

But the motion papers nowhere suggest

that defendant did not retain prior counsel by his own free
choice.

Litigants are bound by the professional conduct of the

19

attorneys they choose to represent them, although the conduct of
counsel may give rise to a claim for malpractice by the
client.”).
The Court also rejects Kaczmarek’s attempt to revoke
defendants’ concession that Midtown was plaintiffs’ employer.
Kaczmarek argues that the concession is a nullity because
Rabinowitz lacked the authority to make it and because it was
based on a misunderstanding.

(Kaczmarek’s Objs. at 2–3.)

Kaczmarek also asserts that “employer” status under the FLSA is
a question of law (not of fact) and, as such, the parties’
stipulation on the matter does not bind the Court.

(Id. at 3.)

Yet “[s]tatements made by an attorney during oral argument . . .
constitute binding judicial admissions.”

Gen. Ins. Co. of Am.

v. Mezzacappa Bros., No. 01-CV-7394 (FB), 2003 WL 22244964, at
*5 (E.D.N.Y. Oct. 1, 2003), aff’d, 110 F. App’x 183 (2d Cir.
2004).

Accordingly, the Court will not allow defendants to

revoke their concession that Midtown was plaintiffs’ employer.
See, e.g., Emigra Group, LLC v. Fragomen, Del Rey, Bernsen &
Loewy, LLP, 612 F. Supp. 2d 330, 348–50 (S.D.N.Y. 2009) (seeing
“no reason to relieve [plaintiff] of the consequences of its
express concession” at oral argument, even where plaintiff
sought to retract the concession in a letter submitted before
the Court ruled); Packer v. SN Servicing Corp., 250 F.R.D. 108,
115 (D. Conn. 2008) (disregarding argument on motion for

20

reconsideration that was contrary to counsel’s position at oral
argument and stating that “Plaintiffs cannot seek to deny those
concessions at this late hour”).
As indicated above, Kaczmarek admitted that no triable
issue of fact existed in the record before Judge Levy.
Court agrees with this assessment.

The

The record included

uncontroverted evidence that Kaczmarek solely owned one admitted
employer (Midtown) and facilitated the operations of another
(ECRC), while also exercising significant control over
plaintiffs’ employment.

Because the Court declines to consider

newly submitted evidence that calls into question these facts,
the Court adopts Judge Levy’s findings as to Kaczmarek and
grants summary judgment against him.8
K. Marcisquak, ECRC, and Midtown
The other three defendants whom Judge Levy found to be
liable — ECRC, Midtown, and K. Marcisquak — have also objected
to the report.9

The basis for ECRC’s and Midtown’s objections

8

As noted, Kaczmarek was the sole owner and officer of Midtown. (R&R at 12.)
Through his new counsel, Kaczmarek argues that “summary judgment against
Midtown . . . should not be entered.” (Kaczmarek’s Objs. at 1.) But
Kaczmarek’s new counsel has not appeared for Midtown. According to the
docket, Rabinowitz still represents Midtown. Indeed, as discussed below,
Rabinowitz has objected to Judge Levy’s report on Midtown’s behalf. Thus,
Kaczmarek’s counsel’s objections to Judge Levy’s finding Midtown liable do
not appear to be properly before the Court. In any event, given defendants’
prior admissions that wage-and-hour violations occurred during the relevant
period and that Midtown was plaintiffs’ employer, the objections lack merit.
These admissions alone were sufficient to establish Midtown’s liability.
9 According to the docket, these defendants continue to be represented by
Rabinowitz. But see supra at 21 n.8.

21

are unclear, as these defendants conceded at oral argument that
wage-and-hour violations occurred during the relevant period and
that they were plaintiffs’ employers.
Oral Arg. Tr. at 4–5, 9).

(See supra at 9; see also

In their objections, ECRC and Midtown

do not even acknowledge their prior concessions — much less ask
the Court to disregard them.

Instead, they submit that: “The

Report and Recommendation appears devoid of any analysis which
le[]d to the granting of Summary Judgment as to [ECRC and
Midtown].

Without [an] analysis [of ECRC’s and Midtown’s

liability] Summary Judgment should not have been granted . . .
.”

(Defs.’ Objs. at 4.)

Not surprisingly, the report does not

explain why these entities satisfy the definition of an
“employer” under the FLSA and NYLL because defendants conceded
the point.

(R&R at 2–3).

To the extent that defendants seek to

retract this concession, the Court denies the request and adopts
Judge Levy’s recommendation that summary judgment be granted
against ECRC and Midtown.

See, e.g., Gen. Ins. Co. of Am., 2003

WL 22244964, at *5; Emigra Group, 612 F. Supp. 2d at 348–50;
Packer, 250 F.R.D. at 115.
K. Marcisquak contends that there was “no documentary
evidence supporting the granting of Summary Judgment” against
him.

(Defs.’ Objs. at 4.)

He complains that Judge Levy’s

“decision was solely based upon testimony of other co-Defendants
and the Plaintiffs.”

(Id.)

“Plaintiffs’ testimony,” K.

22

Marcisquak argues, “should be viewed with suspicion since it is
self-serving.”

(Id.)

Finally, K. Marcisquak asserts that Judge

Levy’s acknowledgement that “‘gaps remain concerning the full
extent of K. Marcisquak’s role within ECRC’ . . . alone
indicates that there are disputes of material facts.”

(Id.

(quoting R&R at 17).)
These objections lack merit, and the Court overrules
them.

Though K. Marcisquak appears to argue otherwise, a “lack

of documentary evidence . . . does not create a genuine dispute
of fact.”

See, e.g., Simmons v. City of New York, No. 16-CV-

1589 (VEC), 2017 WL 6397745, at *11 n.10 (S.D.N.Y. Dec. 13,
2017).

The nonmovant cannot avoid summary judgment simply by

raising the possibility that the moving party’s testimony is
self-serving and inaccurate.

See Island Software & Computer

Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005)
(“Broad, conclusory attacks on the credibility of a witness will
not, by themselves, present questions of material fact.”).
Instead, the “nonmovant . . . must point to specific evidence in
the record” that contradicts the testimony.

See Salahuddin v.

Goord, 467 F.3d 263, 273 (2d Cir. 2006); see also Achille v.
Chestnut Ridge Transp., Inc., 584 F. App’x 20, 22 (2d Cir. 2014)
(“‘[C]onclusory statements, conjecture, or speculation by the
party resisting the motion will not defeat summary judgment.’”)
(quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.

23

1996)); Corbett v. City of New York, No. 1:15-CV-9214 (GHW),
2017 WL 3207783, at *1 n.1 (S.D.N.Y. July 27, 2017) (“A
declaration is not rendered insufficient merely because it is
self-serving.”).

Thus, K. Marcisquak’s objection based on the

lack of documentary evidence is overruled.
Finally, Judge Levy’s observation that “‘gaps
remain[ed] concerning the full extent of K. Marcisquak’s role
within ECRC’” does not, as K. Marcisquak argues, “indicate[]
that there are disputes of material facts.”
(quoting R&R at 17).)

(Defs.’ Objs. at 4

Although Judge Levy may not have known

everything about K. Marcisquak’s role at ECRC, the record
included enough undisputed evidence to establish that he had
acted as plaintiffs’ employer.

As noted above, uncontroverted

evidence indicated that K. Marcisquak cofounded ECRC (an
admitted employer of plaintiffs), represented ECRC in dealings
with subcontractors, hired the company’s chief salesman
(Sobolewski) and at least one plaintiff (Tkaczyk), assigned
plaintiffs to projects, set employee schedules, and distributed
employee wages.

Although K. Marcisquak’s role at ECRC may not

have been fully defined, undisputed evidence established that K.
Marcisquak was plaintiffs’ employer.
overrules this objection.

The Court therefore

Because undisputed evidence

established K. Marcisquak’s liability, the Court adopts Judge

24

Levy’s recommendation that summary judgment be granted against
K. Marcisquak.
Pro Se Plaintiffs Helwing and Tkaczyk’s Objections
In their objections, pro se plaintiffs Helwing and
Tkaczyk appear to argue that Judge Levy should have found
defendants Sobolewski and Podgorny liable.

They call these

defendants “criminals” and state that they have cheated
“hundreds” of workers.

(Pls.’ Objs. at 1, 2.)

They seemingly

contend that Sobolewski and Podgorny were the “most involved” of
all defendants in the wage-and-hour violations.

(Id. at 1.)

According to the pro se plaintiffs, Sobolewski lied at his
deposition “from the beginning to the end.”

(Id.)

Helwing and

Tkaczyk opine that “only by corruption” could Judge Levy have
made the recommendations in his report, and they appear to
question “how much” he was paid to make them, while accusing the
magistrate judge of placing “trust [in] . . . criminals.”

(Id.

at 2, 3.)
The Court overrules Helwing and Tkaczyk’s objections
and adopts Judge Levy’s finding that genuine disputes of
material fact exist as to Sobolewski’s and Podgorny’s liability.
Although the pro se plaintiffs accuse Sobolewski of testifying
falsely at his deposition, “‘[c]redibility determinations . . .
are jury functions, not those of a judge . . . [when] . . .
ruling on a motion for summary judgment.’”

25

Reyes v. Lincoln

Auto. Fin. Servs., 861 F.3d 51, 55 (2d Cir. 2017) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Thus, Sobolewski’s credibility is for a jury, not the Court, to
decide.

See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.

1996) (“Assessments of credibility and choices between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.”).

Further, the attack on

Judge Levy’s integrity is baseless, as his report reflects a
thorough and impartial weighing of the issues based on the
record before him.
The pro se plaintiffs’ objections are too general and
vague to compel de novo review of Judge Levy’s findings
regarding Sobolewski and Podgorny.

Having reviewed the findings

for clear error and finding none, the Court adopts the findings
in their entirety.

Even if the Court were to conduct a de novo

review, it would reach the same result.

As noted by Judge Levy,

Sobolewski attested that he was not an ECRC owner but a
salesperson; that his power to hire and fire employees was
limited; and that he did not set work schedules or supervise
plaintiffs.

(R&R at 19–24.)

Also, Sobolewski’s role in

employee compensation matters was largely unclear.

(R&R at 24.)

For his part, Podgorny represented that he was merely ECRC’s
driver and messenger.

(Supra at 12; R&R at 18–19.)

Although

plaintiffs testified that both Sobolewski and Podgorny had

26

supervisory and operational functions, the Court must take the
evidence in the light most favorable to the non-moving
defendants at this stage.

When doing so, the Court concludes

that a reasonable juror could find that these defendants were
not plaintiffs’ employers under the FLSA and NYLL.

For these

reasons, the Court adopts Judge Levy’s recommendation that
summary judgment be denied against Sobolewski and Podgorny.10

10 The pro se plaintiffs appear to request permission to further amend the
complaint to add two new defendants (Maiber Polanco and Magdalena Bieniecka)
on the ground that these individuals “are active members of the criminal
group who cheat the labor[ers].” (Pls.’ Objs. at 3.) The Court denies any
request to add new defendants, as this case is now more than eight years old,
discovery closed more than four years ago, and Judge Levy has already ruled
on plaintiffs’ motion for summary judgment. See, e.g., Braithwaite v.
Kingsboro Pyschiatric Ctr., No. 07-CV-127 (NGG), 2010 WL 3398962, at *3
(E.D.N.Y. Aug. 26, 2010) (denying request to amend complaint to add new
individual defendants where “[d]iscovery has long been completed and a
summary judgment motion has been filed by Defendants and decided by the
court”); Reynolds v. United States, No. 06-CV-843 (KMW) (DCF), 2007 WL
3071179, at *2 (S.D.N.Y. Oct. 19, 2007) (explaining it would be “unduly
prejudicial to [defendant] for the Court to allow the addition of new
defendants after submission of a fully briefed motion for summary judgment”)
(collecting cases).

27

III.

Conclusion
For these reasons, the court adopts Judge Levy’s

report and recommendation (ECF No. 116) in its entirety.
Plaintiffs’ motion for summary judgment (ECF No. 99) is granted
with respect to defendants Kaczmarek, K. Marcisquak, ECRC, and
Midtown, but denied as to all other defendants.

Plaintiffs’

counsel shall serve a copy of this Order on all pro se parties.
The parties shall confer and submit a joint letter no later than
April 13, 2018 as to how they intend to proceed.
SO ORDERED.

Dated:

March 31, 2018
Brooklyn, New York

_________/s/_______________
HON. KIYO A. MATSUMOTO
United States District Judge

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