Liz et al v. 5 Tellers Associates, L.P. et al
ORDER granting in part and denying in part 39 Motion to Certify FLSA Collective Action. For the reasons set forth above, the Superintendents' motion for conditional certification of a collective action is GRANTED in part. A collective of sup erintendents who worked or work at PMG-managed buildings in the Bronx from January 10, 2017 to present is conditionally certified and the proposed notice is approved with modification. Within fourteen days of this Order, Defendants are directed to pr ovide Plaintiffs' counsel with the requested contact information for potential collective action members for the purpose of issuing the notice. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 4/1/2021. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 4/1/2021. (Reyes, Ramon)
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 1 of 11 PageID #: 468
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No 20-CV-212 (MKB) (RER)
ANA LIZ AND WALY FERREIRA INDIVIDUALLY,
AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY
5 TELLERS ASSOCIATES, L.P., 5 TELLERS DEVELOPMENT FUND COMPANY, INC.,
PARKVIEW APARTMENTS, LLC, PROPERTY MANAGEMENT GROUP, INC., JOHN
VOLANDES, AND PETER VOLANDES, JOINTLY AND SEVERALLY,
MEMORANDUM & ORDER
April 1, 2021
RAMON E. REYES, JR., U.S.M.J.:
(“Ferreira”) and Opt-In Plaintiffs Mario
Villanueva (“Villanueva”), Jonny Bonilla
(“J. Bonilla”), and Francisco Antonio Liz
Superintendents”) move for conditional
certification of a collective and permission to
send notice to potential opt-in members
pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b). (Dkt. No. 39
(“Pls.’ Mot.”) ¶¶ 1, 3). They further request
that Defendant Property Management Group,
Inc. (“PMG”) be ordered to provide the
contact information necessary to issue notice.
(Id. ¶ 2). For the reasons set forth below, the
Superintendents’ motion is granted in part.
On January 10, 2020, Ana Liz1 and
Ferreira (collectively, “Named Plaintiffs”)
Named Plaintiff Ana Liz asserts her claims only in
her individual capacity and not as a putative class or
collective representative. (Dkt. No. 41 (“Pls.’ Mem.”)
at 1 n.1).
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 2 of 11 PageID #: 469
While the motion has been pending, Jose
Nicolas Blanco (“Blanco”) and Ramon R.
Ferreira filed their consent to join the
collective. (Dkt. Nos. 47, 51).
commenced this action on behalf of
themselves and other similarly situated
persons. (Dkt. No. 1 (“Compl.”) at 1). They
allege that PMG, 5 Tellers Associates, L.P.
(“5 Tellers L.P.”), 5 Tellers Development
Fund Company, Inc. (“5 Tellers HDFC”),
Parkview Apartments, LLC (“Parkview”),
John Volandes, and Peter Volandes violated
the FLSA, 29 U.S.C. § 201 et seq., and New
York Labor Law (“NYLL”), N.Y. Lab. Law
§ 190 et seq. (Id. ¶ 1). Ferreira filed his
consent to be a party in a collective action on
January 10, 2020. (Dkt. No. 3). Villanueva, J.
Bonilla, and F. Liz then each consented to be
a party in a collective action. (Dkt. Nos. 8–
The Named Plaintiffs allege that
Defendants 5 Tellers L.P., 5 Tellers HDFC,
and Parkview are part of a centrally managed
real estate enterprise that owns, controls, and
manages apartment buildings in New York
City. (Compl. ¶ 4; Dkt. No. 40 (“Rapaport
Decl.”) ¶ 4). They further allege that John and
Peter Volandes exercised ownership and
control over the other 5 Tellers Defendants.
(Compl. ¶ 5; see also Dkt. No. 44 (“Owen
Decl.”) ¶ 2). Named Plaintiffs, 5 Tellers
Defendants, and PMG agree that PMG
managed certain apartment buildings on
behalf of the 5 Tellers Defendants. (Compl. ¶
7; Rapaport Decl. ¶ 5; Dkt. No. 23 ¶ 151; see
Owen Decl. ¶¶ 8–9). Named Plaintiffs and 5
Tellers Defendants also agree that PMG had
control and decision-making authority over
the terms and conditions of employment at
those buildings, including wage policies and
practices. (Compl. ¶¶ 7, 45; Dkt. No. 23
¶¶ 152–53). PMG counters that it provided
only “‘back office’ services, such as
collecting rent from tenants and other
ministerial activities.” (Owen Decl. ¶ 3).
5 Tellers L.P., 5 Tellers HDFC,
Parkview, John Volandes, and Peter
Defendants”) filed an Answer on March 6,
2020. (Dkt. No. 21). They later amended their
Answer to include a cross claim against
PMG. (Dkt. No. 23). PMG answered the
Complaint and cross claim on May 13, 2020.
(Dkt. No. 30). It also asserted cross claims
against the 5 Tellers Defendants. (Id.).
The Court referred this case to mediation
on February 20, 2020. (Dkt. No. 22).
Following mediation, the case remained
unresolved. (Dkt. Entry Dated 8/12/2020;
Dkt. No. 36). The Court then ordered the
parties to complete discovery by June 1,
2021. (Order dated 8/26/2020).
The buildings where the Superintendents
worked were owned by different corporate
entities,2 but Ferreira, Villanueva, J. Bonilla,
and Blanco aver that PMG enforced the same
wage and hour practices at the different
buildings it managed. (Ferreira Decl. ¶ 11;
Villanueva Decl. ¶ 4; J. Bonilla Decl. ¶ 12;
The Superintendents filed their Motion to
Certify FLSA Collective Action on
November 9, 2020. (Dkt. Nos. 39–41). PMG
opposed the motion. (See Dkt. Nos. 43–45).
Ferreira, J. Bonilla, and Villanueva worked at
buildings owned by Parkview (1660 Crotona Park
East, 1680 Crotona Park East, and 819–823 East 173rd
Street in the Bronx, respectively); F. Liz worked at
300–306 East 162nd, a building in the Bronx owned
by 5 Tellers L.P.; Blanco worked at three buildings in
the Bronx each owned by a different entity. (See Dkt.
No. 40-8 (“Ferreira Decl.”) ¶ 2; Dkt. No. 40-9
(“Villanueva Decl.”) ¶ 2; Dkt. No. 40-10 (“J. Bonilla
Decl.”) ¶ 2; Dkt. No. 40-11 (“F. Liz. Decl.”) ¶ 2;
Dkt. No. 40 (“Blanco Decl.”) ¶ 1; Owen Decl. ¶¶ 8–9;
Dkt. No. 40-3).
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 3 of 11 PageID #: 470
Bronx and Manhattan. (Dkt. No. 40-3).
Blanco Decl. ¶ 17). They allege a centralized
management structure of PMG. (Pls.’ Mem.
at 4; Dkt. No. 49 (“Pls.’ Reply”) at 5). The
Superintendents and Blanco agree that PMG
oversaw payroll and other employmentrelated issues. (Ferreira Decl. ¶ 13;
Villanueva Decl. ¶¶ 8, 10; J. Bonilla Decl. ¶¶
7–8; F. Liz Decl. ¶ 9; Blanco Decl. ¶ 17).
Paychecks and work orders were issued from
the PMG office located at 3151 Albany
Crescent, Bronx, New York (“the Albany
Crescent Office”). (Ferreira Decl. ¶ 14;
Villanueva Decl. ¶¶ 3, 5, 11–12; J. Bonilla
Decl. ¶¶ 10, 13; F. Liz. ¶ 5; Blanco Decl.
Another supervisor was named Orlando
Carpio (“Carpio”). (Ferreira Decl. ¶¶ 15, 17,
19; Villanueva Decl. ¶ 8; J. Bonilla Decl.
¶¶ 7, 11). PMG states that Carpio was an
employee of the 5 Tellers Defendants who
was merely provided with an “on-site” office.
(Owen Decl. ¶¶ 4–5). The Superintendents
and Blanco also received work orders from
PMG secretary “Denise.” (Ferreira Decl.
¶ 16; Villanueva Decl. ¶ 8; J. Bonilla Decl.
¶ 8; F. Liz. Dec. ¶ 9; Blanco Decl. ¶ 17).
Around late 2017, Ferreira, Villanueva,
J. Bonilla, and R. Liz approached Xin,
Carpio, and a Spanish-speaking PMG office
worker to complain about their wages.
(Ferreira Decl. ¶ 20; Villanueva Decl. ¶ 17).
In approximately early 2019, Blanco
complained to PMG president Victor Owen
(“Owen”) about his wages. (Blanco Decl.
On average, the Superintendents and
Blanco all worked substantially more than
forty hours per week. (Ferreira Decl. ¶ 12 (65
hours); Villanueva Decl. ¶ 15 (55.5 hours); J.
Bonilla Decl. ¶ 9 (74 hours); F. Liz. Decl. ¶
9; Blanco Decl. ¶¶ 9, 12 (52 hours)). And
they were all paid a fixed weekly salary.
(Ferreira Decl. ¶¶ 11–12, 23 ($560);
Villanueva Decl. ¶¶ 4, 15 ($560); J. Bonilla
Decl. ¶ 5 ($560); F. Liz. Dec. ¶ 10 ($300);
Blanco Decl. ¶ 14 ($360 and later $500).
They were not paid overtime compensation.
(Ferreira Decl. ¶ 12; Villanueva Decl. ¶¶ 4,
15; J. Bonilla Decl. ¶ 9; F. Liz Decl. ¶ 10;
Blanco Decl. ¶ 14). Villanueva and J. Bonilla
also assert wage statement violations.3
(Villanueva Decl. ¶ 6; Bonilla Decl. ¶ 11).
The FLSA permits employees to assert
claims on behalf of themselves and other
29 U.S.C. § 216(b). In the Second Circuit,
certification of a FLSA collective action is a
two-step process. Finnigan v. Metro. Transp.
Auth., No. 19-CV-00516 (PKC) (RER), 2020
WL 1493597, at *2 (E.D.N.Y. Mar. 26, 2020)
(citing Myers v. Hertz Corp., 624 F.3d 537,
554–55 (2d Cir. 2010)). Ferreira’s current
motion only concerns “[t]he first step, called
conditional certification.” See Jenkins v. TJX
Cos., 853 F. Supp. 2d 317, 320 (E.D.N.Y.
2012). If conditional certification is granted,
the putative collective members are sent
notices and given the opportunity to opt-in to
the collective action. Id. After discovery,
defendants can move to decertify the class,
and the court evaluates the similarities
The Superintendents identify three PMG
managers who worked in the Albany
Crescent Office—Frank Vargas (“Vargas”),
Pan Xin (“Xin”), and Ramon Bonilla. These
individuals were involved to some degree in
supervising the Superintendents’ work.
(Ferreira Decl. ¶¶ 3–4, 17–18; Villanueva
Decl. ¶¶ 3, 8–9; J. Bonilla Decl. ¶¶ 4–6; F.
Liz. Decl. ¶ 8). Vargas and Xin served as
designated agents and/or managers for
several PMG-managed buildings in the
J. Bonilla asserts a wage notice violation as well.
(J. Bonilla Decl. ¶ 5).
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Dist. LEXIS 120126, at *4 (S.D.N.Y. Oct.
17, 2011) (quoting Cunningham v. Elec. Data
Sys. Corp., 754 F. Supp. 2d 638, 644
(S.D.N.Y. 2010)). Allegations in the
complaint and other conclusory statements
that similarly situated employees exist are
insufficient. Prizmic v. Armour, Inc., No. 05CV-2503 (DLI) (MDG), 2006 WL 1662614,
at *2 (E.D.N.Y. June 12, 2006) (collecting
cases). “A plaintiff must provide actual
evidence of a factual nexus between his
situation and those that he claims are
similarly situated . . . .” Id.; see also Young v.
Cooper Cameron Corp., 229 F.R.D. 50, 54
(S.D.N.Y. 2005). “[C]ourts regularly
determine that two or three declarations
corroborating each other constitute a
conditionally certify a collective action under
the FLSA.” Colon v. Major Perry St. Corp.,
No. 12 Civ. 3788 (JPO), 2013 WL 3328223,
at *6 (S.D.N.Y. July 2, 2013).
amongst the collective with increased
scrutiny. See id. at 320–21.
plaintiffs to demonstrate by “a ‘modest
factual showing’ that they and potential optin plaintiffs ‘together were victims of a
common policy or plan that violated the
law.’” Finnigan, 2020 WL 1493597, at *2
(quoting Myers, 624 F.3d at 555). In other
words, the plaintiff must show that “there are
other employees who are similarly situated
with respect to their job requirements and
with regard to their pay provisions.” Myers,
624 F.3d at 555 (citation omitted).
Although the Second Circuit has yet
to prescribe a particular method for
determining whether members of a
putative class are similarly situated,
district courts in this circuit look to
the “(1) disparate factual and
employment settings of the individual
plaintiffs; (2) defenses available to
defendants which appear to be
individual to each plaintiff; and (3)
considerations counseling for or
against notification to the class.”
I. The Superintendents’ Allegations
are Sufficient as to PMG-Managed
Buildings in the Bronx
The Superintendents’ submissions satisfy
their burden of a modest factual showing that
they are similarly situated to other
superintendents at PMG-managed buildings
in the Bronx because five declarations before
the Court corroborate the pleadings and give
rise to an inference that the same wage and
hour policy was enforced across PMGmanaged buildings in those locations.
Laroque v. Domino’s Pizza, LLC, 557 F.
Supp. 2d 346, 352 (E.D.N.Y. 2008) (quoting
Guzman v. VLM, Inc., No. 07-CV-1126 (JG)
(RER), 2007 WL 2994278 at *3 (E.D.N.Y.
Oct. 11, 2007) (collecting cases)).
In determining whether plaintiffs have
met their burden, courts “look to the
pleadings and submitted affidavits” and do
not “resolve factual disputes, decide
substantive issues going to the ultimate
merits, or make credibility determinations.”
Yu Zhang v. Sabrina USA Inc., No. 18 Civ.
12332 (AJN) (OTW), 2019 WL 6724351, at
*2 (S.D.N.Y. Dec. 20, 2019) (citations
omitted); see also Urresta v. MBJ Cafeteria
Corp., No. 10 Civ. 8277 (RWS), 2011 U.S.
A. The Superintendents Established that
The Superintendents’ and Blanco’s
declarations specify that they worked the
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same job during a similar time period,4 were
paid in the same manner, and answered to the
same individuals who operated out of one
office. These declarations are sufficient to
demonstrate a factual nexus as to the wage
and hour violations experienced by
superintendents who worked at PMGmanaged buildings in the Bronx. See Colon,
2013 WL 3328223, at *7 (quoting Jacob v.
Duane Reade, Inc., No. 11 Civ. 160, 2012
WL 260230, at *8 (S.D.N.Y. Jan. 27, 2012)
(“[T]he question ‘before the Court is not
[superintendents] were identical in all
respects, but ‘rather whether they were
subjected to a common policy to deprive
them of overtime pay.’”). The only evidence
the Superintendents provide about PMGmanaged buildings in Manhattan is that
Vargas and/or Xin are the designated agent
and/or manager of some of them; none of the
Superintendents purport to have any
information as to whether employees at the
Manhattan properties are subject to the same
alleged wage and hour violations.
competing declarations at this time. See
Morris v. Lettire Constr. Corp., 896 F. Supp.
2d 265, 271–272 (S.D.N.Y. 2012) (declining
to consider the declaration of an individual
denying a statement that plaintiff alleged he
made). PMG further argues that the hearsay
statements regarding what Robinson may
have said during a conversation with Ferreira
and Villanueva are inadmissible. However,
Courts in this District do not strike hearsay
statements at this stage of litigation. Lujan v.
Cabana Mgmt., No. 10-CV-755 (ILG), 2011
WL 317984, at *6 (E.D.N.Y. Feb. 1, 2011)
(declining to strike a hearsay statement
“given the ‘modest factual showing’ required
at the notice stage.” (quoting Laroque, 557 F.
Supp. 2d at 352)). Even if the Court does not
consider that Robinson may have
experienced the same alleged FLSA
violations, Ferreira has still provided
sufficient facts to merit conditional
certification of a collective action because the
Superintendents, who worked at different
buildings managed by PMG, experienced the
same wage and hour violations. See Colon,
2013 WL 3328223, at *6 (finding plaintiff’s
allegations together with declarations from
two other superintendents “more than
sufficient” to establish a common policy
enforced at over 100 apartments buildings
owned by several corporate entities owned by
the same individual).
Both Ferreira and Villanueva also
reference a conversation that they had with
“Robinson,” the superintendent of a PMGmanaged building located on Stratford
Avenue in the Bronx during which Robinson
shared that he also worked long hours for a
flat weekly pay. (Ferreira Decl. ¶ 16;
Villanueva Decl. ¶¶ 10, 23). PMG submitted
a declaration from Robinson in which he
denies ever discussing his wages with
Ferreira or Villanueva and states that he has
never been denied overtime compensation
because he works fewer than forty hours per
week. (Dkt. No. 43-2 ¶¶ 2, 11). The Court
will not weigh the credibility of the
PMG argues that the Superintendents
have not demonstrated that the proposed optin plaintiffs are similarly situated and subject
to a common policy as to their employment,
hours, and wages. (Dkt. No. 45 (“Opp’n”) at
15). Specifically, PMG asserts that the
Superintendents did not provide the names of
proposed class members, statements that
The approximate dates of employment for each
Superintendent at a PMG-managed building are as
follows: Ferreira, July 2012 through November 2019;
Villanueva, June 2006 through February 13, 2020;
J. Bonilla, 2009 through on or about November 1,
2019; F. Liz, May 2003 through November 1, 2019;
Blanco, 2006 until the present. (Ferreira Decl. ¶ 2;
Villanueva Decl. ¶ 2; J. Bonilla Decl. ¶ 2; F. Liz
Decl. ¶ 2; Blanco Decl. ¶ 1). PMG ceased serving the
5 Tellers Defendants on or about November 1, 2019.
(Pls.’ Mem. at 5).
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they are in the minority.” Millin v. Brooklyn
Born Chocolate, LLC, No. 19-CV-3346
(ENV) (RER), 2020 WL 2198125, at *2
(E.D.N.Y. May 6, 2020) (collecting cases)
(finding as sufficient named plaintiff’s
pleadings together with time records and pay
stubs corroborating his assertions); cf.
Contrera v. Langer, 278 F. Supp. 3d 702, 716
other proposed class members were not
compensated for overtime, how they have
personal knowledge of the work conditions
for proposed class members, who employs
the proposed class members, and whether the
proposed class members desire to opt into
this lawsuit. (Opp’n at 15–16). This argument
burden. This Court has previously noted that
“[w]hile there are a few cases which may
appear to stand for [the proposition that a
certification needs to be exquisitely detailed
as to time, place, occurrence, speaker, etc.],
Lastly, as PMG emphasizes, the
collective includes a small number of
individuals. (Opp’n at 16–17). PMG submits
declarations from fourteen superintendents at
Courts tend to require more details, such as those
identified by PMG, when plaintiffs seek to certify a
nationwide or otherwise vast collective or to include
in the collective individuals with different job titles or
who work at disparate locations, yet fail to provide any
evidence suggesting that those other employees are
subject to the same policy and practices. That is not
the case here. See Garriga v. Blonder Builders Inc.,
No. 17-CV-497 (JMA) (AKT), 2018 U.S. Dist. LEXIS
171887, at *15 (E.D.N.Y. Sep. 28, 2018) (“[W]hile
Plaintiffs’ declarations are sufficient to show that they
and their fellow carpenters were likely subject to a
common policy or plan that violated the law and were
otherwise similarly situated, their assertions as to other
non-exempt employees are sparse and insufficient to
expand the collective to include “all non-exempt
employees.”); Sanchez v. JMP Ventures, LLC., No. 13
Civ. 7264 (KBF), 2014 WL 465542, at *2 (S.D.N.Y.
Jan. 27, 2014) (denying motion for conditional
certification where plaintiff submitted only his own
affidavit and failed to include any detail about
conversations he had with potential opt-in plaintiffs);
Taveras v. D&J Real Estate Mgmt. II, LLC, 324
F.R.D. 39 (S.D.N.Y. 2013) (granting conditional
certification of superintendents working within the
same two buildings but excluding those at other
buildings, because plaintiffs did not identify any
individuals working at other locations, did not provide
specifics of conversation with other employees, did
not explain how they could have observed the work
schedules of those at other locations, and did not offer
proof that their manager also managed employees at
other locations); Laroque v. Domino's Pizza, LLC, 557
F. Supp. 2d 346, 355–56 (E.D.N.Y. 2008) (certifying
a collective for only one location where including
other locations could lead to a collective of hundreds
of employees, individuals at other locations worked
under different managers, and the only supporting
evidence of a common policy was hearsay statements
that had been called in to question.); Ikikhueme v.
CulinArt, Inc., No. 13 Civ. 293 (JMF), 2013 WL
2395020, at *2 (S.D.N.Y. June 3, 2013) (denying
certification of a collective of sous chefs at many
different locations where plaintiff submitted only his
own affidavit and made no allegations that other sous
chefs were subject to the alleged FLSA violations.);
Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475,
478 (S.D.N.Y. 2016) (applying “a modest ‘plus’
standard” and denying conditional certification where
plaintiffs’ declarations contradicted their own
deposition testimony, eleven of the twelve opt-in
plaintiffs worked for the same vendor and where the
proposed nationwide collective encompassed
“approximately 7,500 workers associated with forty
different . . . vendors at approximately seventy
PMG also cites to Levinson v. Primedia Inc., No. 02
Civ. 2222 (CBM), 2003 WL 22533428, at *2
(S.D.N.Y. Nov. 6, 2003). In Levinson, the court denied
certification for a class of tour guides employed by
related entities. While the named plaintiffs submitted
their own contracts and descriptions of their pay
arrangements, the court was unpersuaded that other
tour guides, referenced only in the abstract, were
subject to the same policy. The Superintendents,
however, have also alleged a centralized management
structure of PMG, (Pls.’ Mem. at 4; Pls.’ Reply at 5),
provided a building list showing that many of the same
designated agents or managers were assigned to
several different PMG-managed buildings, (Dkt. No.
40-3), and submitted affidavits of individuals other
than the named plaintiff and who work at different
locations, (Dkt. Nos. 40-9 through 40-11, 48).
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 7 of 11 PageID #: 474
other PMG-managed buildings in an attempt
to demonstrate that the majority of potential
opt-in plaintiffs are not subject to the wage
and hours policy that the Superintendents
describe.6 (Id. at 16; Dkt. Nos. 43-2 through
43-15). The Court declines to consider those
declarations at this conditional certification
stage. See Morris, 896 F. Supp. 2d at 271–
272 (declining to consider declarations of
employees who claimed that they did not
work overtime and were compensated if they
B. The Superintendents Support an
Inference of a Uniform Policy under
Common Ownership or Management
At the conditional certification stage, the
Superintendents’ factual showing adequately
“support[s] an inference that a uniform policy
or practice exists” under “common
ownership or management.” See Contrera,
278 F. Supp. 3d at 714 (quoting Cruz v. Ham
N Eggery Inc., 2016 WL 4186967, at *3
(E.D.N.Y. Aug. 8, 2016)) (noting that
whether a particular defendant is a joint
employer under FLSA is a fact specific
inquiry not to be resolved at this stage); cf.
Urresta, 2011 U.S. Dist. LEXIS 120126, at
*19 (finding that plaintiffs did not provide “a
factual demonstration of any common control
or other element of joint-employer status.”).
PMG then argues that even if “the
remaining 5 superintendents [who did not
submit affidavits through PMG] intended to
opt into this lawsuit . . . the numerosity
requirement for a class action would not be
satisfied.” (Opp’n at 17). It is without
question that the Rule 23 requirements,
including numerosity, are not applicable to
certification of a FLSA collective action. See,
e.g., Jenkins, 853 F. Supp. 2d at 320; Young,
229 F.R.D. at 54 (quoting Foster v. Food
Emporium, No. 99 Civ. 3860 (CM), 2000 WL
1737858, at *1 (S.D.N.Y. April 26, 2000)).
Courts in this Circuit agree that “[e]ven if the
group of eligible plaintiffs is small, they all
‘have a right to notice of these claims and an
opportunity to join this action.’” Lee v. ABC
Carpet & Home, 236 F.R.D. 193, 197
(S.D.N.Y. 2006) (quoting Davis v. Lenox Hill
Hosp., No. 03 Civ. 3746 (DLC), 2004 WL
1926086, at *7 (S.D.N.Y. Aug. 31, 2004)).
PMG argues that “Plaintiffs’ proposed
class is comprised of 19 superintendents who
entities . . . Nor do Plaintiffs allege that they
are related in any way to the existing
Defendants.” (Opp’n at 19). But PMG fails to
appreciate the relevance of the undisputed
fact that the twenty-four entities all had PMG
manage their residential apartment buildings.
(See Opp’n at 8; Owen Decl. ¶¶ 8–9). The
Superintendents’ factual evidence supports
an inference that superintendents in the
Bronx were subject to a uniform wage and
hour policy under PMG management.
The Superintendents and Blanco assert
that PMG issued work orders, paychecks, and
Blanco has introduced doubt as to the credibility of
these statements. (See Banco Decl. ¶¶ 3–11). He is one
of the superintendents whose declaration PGM
submits with its opposition. (Dkt. No. 43-11). Blanco
subsequently submitted a declaration along with the
Superintendents’ reply that details the conditions
under which he provided that statement (including that
“[t]he PMG manager whispered how I should answer
the questions” and that “[he] was terrified of losing
[his] job and residence”) and states that his first
declaration did not accurately describe his actual
hours. (Blanco Decl. ¶¶ 6–9). Blanco also submits a
voice message he received to dissuade him from
speaking to any lawyers about his work with PMG.
(Dkt. No. 48-1). According to Blanco, PMG manager
and agent Vargas left that message. (Blanco Decl. ¶ 3).
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 8 of 11 PageID #: 475
Contrera, 278 F. Supp. 3d at 716 (“Even ‘a
single affidavit providing some basis for an
inference that a company-wide policy exists
could be sufficient to grant conditional
certification.’” (quoting Fernandez v. Sharp
Mgmt. Corp., No. 16 Civ. 551 (JGK) (SN),
2016 WL 5940918, at *3 (S.D.N.Y. Oct. 13,
2016) (collecting cases))); Sipas v. Sammy’s
Fishbox, Inc., 2006 WL 1084556, at *2
(S.D.N.Y. Apr. 24, 2006) (“All the Plaintiffs
were required to wear the same uniforms,
attend the same semi-annual meetings to
discuss problems with parking operations,
and answer to the same supervisors” and
alleged the same wage violations.); Taveras,
324 F.R.D. at 46 (“[individual defendant]
was involved in management of employees
employed at [two locations], suggesting
common management and centralized
control of labor relations” but finding that
including unnamed employees of unnamed
“related” entities was too broad). The Court
cannot make the same inference as to PMGmanaged buildings in Manhattan or
Brooklyn. See Monger v. Cactus Salon &
Spa’s LLC, No. 08-CV-1817 (FB) (WDW),
2009 WL 1916386, at *2 (E.D.N.Y. July 6,
2009) (“[Plaintiff’s] offer no basis for this
belief [that other locations’ employees are
similarly situated]; they name no individuals
at other salons who are similarly situated; and
they provide no documentary evidence that
policies are the same at different Cactus
Salon locations.”); Greene v. C.B. Holding
Corp., 2010 WL 3516566, at *5 (granting
conditional certification based on eight
affidavits supporting that alleged wage and
other employment-related memos; it handled
vacation time and other employment-related
issues.7 (Ferreira Decl. ¶¶ 13–14, 17;
Villanueva Decl. ¶¶ 3, 5, 8, 10–12; J. Bonilla
Decl. ¶¶ 7–8, 10–11, 13; F. Liz Decl. ¶¶ 5, 9;
Blanco Decl. ¶ 17). When Ferreira had a
concern about his wages, he, together with
superintendents of other buildings, owned by
separate entities,8 spoke with PMG manager
Xin with the understanding that his decision
on wages was final. Similarly, Blanco spoke
to PMG president Owen about a wage-related
concern, understanding his decision on
wages to be final. (Blanco Decl. ¶ 13; see
Owen Decl. ¶ 1).
The Superintendents’ counsel’s staff
reviewed public records to determine the
number and locations of buildings managed
by PMG. (Rapaport Aff. ¶¶ 7–8). The records
indicate that for each building other than
those for which one of the 5 Tellers
Defendants held title, including the
Manhattan buildings, the designated agent
and/or manager is listed at the Albany
Crescent Office. (Dkt. No. 40-3). Vargas
and/or Xin are the designated agent and/or
manager of all of the buildings that PMG
managed in the Bronx except for
approximately three. (Dkt. No. 40-3).
The Court can reasonably infer from the
affidavits of five different superintendents at
separate buildings in the Bronx, each
managed by PMG that there is a common
policy of wage and hour violations at PMGmanaged buildings in the Bronx. See
The Court acknowledges the dispute regarding
whether PMG exercised control over employment
conditions or merely performed “back office” tasks.
(Compare Compl. ¶¶ 7, 45, and Dkt. No. 23 ¶¶ 152–
53, with Owen Decl. ¶ 3). The Court will not consider
the substance of those arguments at this time;
however, after discovery, PMG may move to decertify
the collective, and the Court will evaluate whether the
opt-in plaintiffs are in fact similarly situated. See, e.g.,
Jenkins, 853 F. Supp. 2d. at 320–21; Millin, 2020 WL
2198125, at *1.
Based on the records collected by the
Superintendents’ counsel, Ferreira, Villanueva, and J.
Bonilla all worked in buildings to which Parkview
held title; 5 Tellers L.P. held title to the building in
which F. Liz worked; and Blanco worked for three
buildings of which title for each was held by a different
corporate entity. (Dkt. No. 40-3).
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 9 of 11 PageID #: 476
minimum wage rate for all hours
compensation for all hours over forty
that they worked in a workweek.
hour violations were experienced at five New
York locations, one New Jersey location, and
two Pennsylvania locations).
Lastly, without citing any authority, PMG
argues that granting the Superintendents’
motion would necessitate the addition of
twenty-four necessary parties under Rule 23.
(Opp’n at 20–21). It is no barrier to
conditional certification that not all
potentially affiliated entities are named as
defendants. See Lujan, 2011 WL 317984, at
*1–2 (granting conditional certification after
noting that not all related entities were named
The FLSA affords a two-year statute of
limitations to bring a cause of action unless
the violation was willful, in which case the
limitations period is extended to three years.
29 U.S.C. § 255(a). The Superintendents
allege that the FLSA violations were willful.
(Compl. ¶¶ 56, 65). Accordingly, their
proposed collective action period is
appropriate. See Garriga, 2018 U.S. Dist.
LEXIS 171887, at *18–19.
Content of the Proposed Notice
PMG argues that the Superintendents’
revised definition for the collective should be
construed as an acknowledgment that the
appropriate collective is only those
superintendents employed by the 5 Tellers
Defendants in buildings managed by PMG.
(Opp’n at 5). However, PMG provides no
legal support for its argument that they
should not be permitted to seek conditional
certification of the amended proposed
collective, and the Court finds none. The
Superintendents appropriately modified part
of the anticipated opt-in collective after
limited discovery. For example, maintenance
workers were removed from the proposed
collective because Named Plaintiff Ana Liz,
a porter, no longer seeks to represent a
collective. The Superintendents are directed
to further modify the collective in accordance
with this order; namely, to include only
superintendents who worked at PMGmanaged buildings in the Bronx.
Under the FLSA, district courts have the
authority to order that notice be given to
potential members of a collective. E.g.,
Colon, 2013 WL 3328223, at *7. “[T]he
dissemination of notice in a FLSA collective
action is a case management tool that courts
may employ in ‘appropriate cases,’ including
where notice will facilitate swift and
economic justice.” Taveras, 324 F.R.D. at 41
(citing Myers, 624 F.3d at 555).
In their Complaint, Named Plaintiffs
anticipated that the FLSA Collective would
refer to “all persons who are, or have been,
maintenance workers at the 5 Tellers
Buildings from three (3) years prior to this
action’s filing through the date of the final
disposition who elect to opt-in to this action.”
(Compl. ¶ 54). The Superintendents now
requests that the Collective include
current and former superintendents of
all residential apartment buildings
owned and/or managed by [PMG] - who, while performing work for
Defendants at any time between
January 10, 2017 and the present, did
not receive pay at least at the
Form of the Proposed Notice
and Reminder Notice
authorization to send notice and reminder
notice by mail, email, and text message. (Dkt.
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 10 of 11 PageID #: 477
of the motion for collective action
(November 9, 2020), rather than the date
upon which notice is mailed. Id.
Nos. 40-4 through 40-7). This request is
granted. See Millin, 2020 WL 2198125, at *3
(“There is no credible reason why notice
should not be provided by email or text
message, especially given the broad remedial
purpose of the FLSA.”); see also Knox v.
John Varvatos Enterprises Inc., 282 F. Supp.
3d 644, 667 (S.D.N.Y. 2017) (“many courts
in this district have permitted sending a
The Superintendents seek an order from
this Court directing PMG “to produce a
computer-readable data file containing the
names, last known mailing addresses, all
known home and mobile telephone numbers,
all known email addresses, work locations,
dates of employment, and primary languages
spoken of all potential collective action
members who worked at buildings owned or
managed by PMG at any point from
November 9, 2014 to the present.” (Pls.’ Mot.
¶ 2). The Court assumes that this request
seeks to include superintendents who may
have claims under the NYLL.
The Superintendents also request to
distribute the notice in Spanish as well as
English. (Pls.’ Mem. at 20). This request is
granted. See Lijun Geng v. Shu Han Ju Rest.
II Corp., No. 18 Civ. 12220 (PAE) (RWL),
2019 WL 4493429, at *19 (S.D.N.Y. Sept. 9,
2019) (“[T]ranslation of court-authorized
notice is commonly granted ‘to increase the
effectiveness of the notice in reaching
potential opt-in plaintiffs.’” (quoting Liping
Dai v. Lychee House, Inc., 17-CV-6197 (DF),
2018 WL 4360772, at *12 (E.D.N.Y. Aug.
Requested Contact Information
In addition to the FLSA claims, the Court
can exercise supplemental jurisdiction over
the NYLL claims arising out of the policies
complained of here. See 28 U.S.C. § 1367.
The NYLL statute of limitations is six years
from the date that the employee filed a
complaint. N.Y. Lab. Law §§ 198(3), 663(3).
The NYLL does not have a provision
equivalent to § 216(b) of the FLSA. See
Guzman, 2007 WL 2994278, at *5. Courts in
this Circuit, including this Court, have
therefore found it appropriate that notices of
the collective action be sent to prospective
plaintiffs with claims now or dating back six
years. See Anjum v. J.C. Penney Co., No. 13
CV 460 (RJD) (RER), 2015 WL 3603973, at
*12 (E.D.N.Y. June 5, 2015); Millin, 2020
WL 2198125, at *4; Garriga, 2018 U.S. Dist.
LEXIS 171887, at *19–20; Guzman, 2007
WL 2994278, at *6 (collecting cases).
The Superintendents request that the
Court order that “the FLSA statute of
limitations be tolled from the date of filing of
this motion until such time as the Court
resolves [it].” (Pls.’ Mem. at 20). PMG does
not oppose this request.
While the limitations period for each
potential plaintiff continues to run until they
elect to opt-in to the action, 29 U.S.C. §.
256(b), some plaintiffs may be eligible for
equitable tolling. See, e.g., Millin, 2020 WL
2198125, at *4 (citing Kemper v. Westbury
Operating Corp., No. 12-CV-0895 (ADS)
(ETB), 2012 WL 4976122, at *3 (E.D.N.Y.
Oct. 17, 2012). It is therefore appropriate that
notices of the collective action be sent to
prospective plaintiffs who worked for
defendants from six years prior to the filing
Notice shall be sent to superintendents
who worked for PMG-managed buildings in
the Bronx during the six years prior to the
filing of the motion for collective action.
Accordingly, PMG is directed to produce the
Case 1:20-cv-00212-MKB-RER Document 53 Filed 04/01/21 Page 11 of 11 PageID #: 478
January 10, 2017 to present is conditionally
certified and the proposed notice is approved
with modification. The Superintendents’
request for equitable tolling is granted in part.
Within fourteen days of this Order,
Defendants are directed to provide Plaintiffs’
counsel with the requested contact
information for potential collective action
members for the purpose of issuing the
requested contact information.
For the reasons set forth above, the
Superintendents’ motion for conditional
certification of a collective action is
GRANTED in part. A collective action of
superintendents who worked or work at
PMG-managed buildings in the Bronx from
/s/ Ramon E. Reyes, Jr.
RAMON E. REYES, JR.
United States Magistrate Judge
Dated: April 1, 2021
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