Ortiz v. BK Venture Group Ltd. et. al.

Filing 26

ORDER: For the reasons explained in the attached Order, the motion for partial summary judgment 19 is granted in part and denied in part. So Ordered by Magistrate Judge Sanket J. Bulsara on 3/27/2024. (MEG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TASHANNA ORTIZ,
Plaintiff,
-against-

ORDER
21-cv-3766-SJB

BK VENTURE GROUP LTD. d/b/a STARLETS NYC and
KEVIN BURCH,
Defendants.
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BULSARA, United States Magistrate Judge:
Plaintiff Tashanna Ortiz (“Ortiz” or “Plaintiff”) filed this action against BK
Venture Group Ltd. d/b/a Starlets NYC (“Starlets”) and Kevin Burch (“Burch,” and
collectively, “Defendants”), alleging violations of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (“FLSA”), and the New York Labor Law § 190 et seq. (“NYLL”). (Compl.
dated July 5, 2021 (“Compl.”), Dkt No. 1). Ortiz now seeks partial summary judgment
on her claims for violations of the Wage Theft Protection Act, failure to pay minimum
wage and untimely payments under FLSA and NYLL, and attorney’s fees and costs. For
the reasons described below, the Court grants the motion in part.
STANDARD FOR SUMMARY JUDGMENT
A “court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 113–14 (2d Cir. 2017) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In determining whether summary

judgment is appropriate, [the Court] must resolve all ambiguities and draw all
reasonable inferences against the moving party.” Tolbert v. Smith, 790 F.3d 427, 434
(2d Cir. 2015) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
The movant bears the burden of “demonstrat[ing] the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” in one of two ways. Fed. R. Civ. P.
56(c)(1). It may cite to portions of the record “including depositions, documents,
electronically stored information, affidavits or declarations, . . . admissions,
interrogatory answers, or other materials.” Id. R. 56(c)(1)(A). Alternatively, it may
show that “the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988).
In moving for summary judgment or answering such a motion, litigants are
required by the Local Rules to provide a statement (a Rule 56.1 statement) setting forth
purported undisputed facts or, if controverting any fact, responding to each assertion.
See Loc. Civ. R. 56.1(a)–(b). In both instances, the party must support its position by
citing to admissible evidence from the record. Id. R. 56.1(d); see also Fed. R. Civ. P.
56(c) (requiring reliance on admissible evidence in the record in supporting or
controverting a purported material fact). “The purpose of Local Rule 56.1 is to
streamline the consideration of summary judgment motions by freeing district courts
from the need to hunt through voluminous records without guidance from the parties.”
Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

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Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the
Court will consider the evidentiary sources of the claims. Halberg v. United Behav.
Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and
recommendation). In evaluating the sources of claims made in dueling Rule 56.1
statements, the Court cannot—as is true for the summary judgment motion as a whole—
weigh evidence or assess the credibility of witnesses. See United States v. Rem, 38 F.3d
634, 644 (2d Cir. 1994). Furthermore, “[l]egal arguments are impermissible in any Rule
56.1 Statement and are to be disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV5211, 2020 WL 1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont’l Cas. Co.,
No. 12-CV-412, 2013 WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have
submitted Local Rule 56.1 statements and responses to each other’s statements that mix
factual assertions with legal argument and therefore fail to meet the requirements of
Local Rule 56.1. The facts . . . are taken from those assertions contained in the Local
Rule 56.1 statements that comply with Local Rule 56.1[.]” (citations omitted)). The
court may not grant summary judgment based on a fact in a Rule 56.1 statement—even
if undisputed—not supported by admissible evidence. E.g., Giannullo v. City of New
York, 322 F.3d 139, 142–43 (2d Cir. 2003) (vacating grant of summary judgment to
defendants based on facts enumerated in Rule 56.1 statement supported only by
arguments in briefs rather than admissible evidence). The Court must also disregard
conclusory denials that lack citations to admissible evidence. Rodriguez v. Schneider,
No. 95-CV-4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999) (“Rule 56.1
statements are not argument. They should contain factual assertions, with citation to
the record. They should not contain conclusions[.]”), aff’d, 56 F. App’x 27, 29 (2d Cir.
2003). Also, where the opposing party fails to specifically controvert a numbered
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paragraph in the Rule 56.1 statement, the statement by the moving party “will be
deemed to be admitted.” Loc. Civ. R. 56.1(c). The Court also does not give any
consideration to hearsay, speculation, or inadmissible evidence in evaluating
declarations or affidavits. Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d Cir. 2010)
(“[A] court is obliged not to consider inadmissible evidence at the summary judgment
stage[.]”); Crawford v. Dep’t of Investigation, No. 05-CV-5368, 2007 WL 2850512, at
*2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific facts showing
that there is a genuine issue for trial;’ he or she ‘may not rely on mere conclusory
allegations nor speculation, but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.’” (quoting Woodman v. WWOR-TV, Inc., 411
F.3d 69, 75 (2d Cir. 2005))), aff’d, 324 F. App’x 139, 143 (2d Cir. 2009).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court finds the following facts—drawn from the pleadings, the parties’
respective Rule 56.1 statements, and supporting affidavits and exhibits attached
thereto—as undisputed unless otherwise noted.
Burch is the owner of Starlets NYC, which had more than $500,000 in annual
revenue in the years at issue. (Pl.’s 56.1 Stmt. in Supp. of Mot. for Summ. J. (“Pl. 56.1
Stmt.”), Dkt. No. 19-1 ¶¶ 1, 6; Defs.’ Resp. to Pl.’s 56.1 Stmt. (“Defs. 56.1 Stmt.”), Dkt.
No. 20-2 ¶¶ 1, 6). During the time Ortiz worked there, Starlets employed more than 11
employees. (Pl. 56.1 Stmt. ¶ 18).1 Burch was present at Starlets between five and seven
days per week when Ortiz worked at the establishment, (id. ¶ 2; Defs. 56.1 Stmt. ¶ 2),

Where a citation only to one side’s 56.1 statement is provided, the Court has
concluded that the opposing party has failed to demonstrate, by citation to admissible
evidence, an actual material fact in dispute.
1

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and he had the authority to hire and fire employees, assign work, and determine wages.
(Id. ¶¶ 3–5; Pl. 56.1 Stmt. ¶¶ 3–5). Ortiz worked as a bartender at Starlets from 2016
through 2019. (Id. ¶¶ 17, 35).
The duties of a bartender at Scarlets are disputed by the parties. Ortiz claims that
at least 25% of her time consisted of carrying bottles with ice buckets and plastic cups to
customers and to the club’s VIP section, mixing and pouring drinks, serving drinks to
the owner and his friends in the basement, and carrying a box of cash downstairs. (Id.
¶ 62; Decl. of Tashanna Ortiz (“Ortiz Decl.”), attached as Ex. 10 to Decl. of Raymond
Nardo (“Nardo Decl.”), Dkt No. 19-12 ¶¶ 2–6). She claims that Startlets did not want the
bartenders to sit down during their shifts. (Id. ¶ 3). Defendants allege that these duties
were performed by other employees, namely busboys, waitresses, and barbacks. (Defs.
56.1 Stmt. ¶ 62). According to Defendants, bartenders were only responsible for making
and selling drinks, while stationed at a register behind the bar, and were not required to
do any physical tasks. (Decl. of Kevin Burch (“Burch Decl.”), Dkt. No. 20-1 ¶¶ 6–7).
Bartenders did not stock the bar or retrieve bottles of alcohol, did not carry buckets of
ice, and did not bring drinks to the owner. (Id. ¶ 7).
Ortiz was not given a Notice and Acknowledgement of Pay Rate and Payday
(“Section 195(1) Notice”) in 2016, 2017, or 2018. (Pl. 56.1 Stmt. ¶ 38). She did receive a
Section 195(1) Notice in June 2019, several years after she started working. (Id. ¶ 36).
Burch believed he paid bartenders the tip credited minimum wage between 2017 and
2019. (Id. ¶ 27; Defs. 56.1 Stmt. ¶ 27). Ortiz was not paid weekly, (Id. ¶ 41; Pl. 56.1
Stmt. ¶ 41); instead, her pay stubs reflect that she was paid at least a month after the
work she performed. (Id. ¶ 40; Defs. 56.1 Stmt. ¶ 40). Five of the pay stubs provided by
Ortiz do not list the basic minimum hourly wage, and two of the pay stubs list the
5

incorrect regular rate of pay. (Pay Stubs (“Pay Stubs”), attached as Ex. 6 to Nardo Decl.,
Dkt. No. 19-8; Pl. 56.1 Stmt. ¶ 48; Defs. 56.1 Stmt. ¶ 48).
Ortiz filed this lawsuit alleging violations of FLSA and the NYLL on July 5, 2021.
(Compl.). On March 22, 2023, Ortiz filed this motion for partial summary judgment.
(Mot. for Summ. J., Dkt. No. 19). Ortiz seeks summary judgment on her claims for: (1)
violations of the Wage Theft Prevention Act; (2) unpaid minimum wages under FLSA
and NYLL; (3) untimely payments under FLSA and NYLL; and (4) attorney’s fees and
costs. (Pl.’s Mem. of Law in Supp. of Mot. for Summ. J. (“Pl. Mem. of Law”), Dkt. 19-14
at 1). She did not move for summary judgment on her unlawful wage deductions claim.
(See Compl. ¶¶ 56–60).
DISCUSSION
I.

Wage Theft Prevention Act Claims

Ortiz argues that she is entitled to summary judgment on her Wage Theft
Prevention Act (“WTPA”) claims because Defendants failed to provide her with a wage
notice within 10 days of employment in violation of NYLL § 195(1)(a), and because
Defendants provided Ortiz defective wage statements in violation of NYLL § 195(3). (Pl.
Mem. of Law at 3–4). Defendants did not oppose Ortiz’s arguments on these claims in
their summary judgment briefs. (See generally Defs.’ Mem. of Law in Opp’n to Pl.’s
Mot. for Summ. J. (“Defs. Mem. of Law”), Dkt. No. 20-4).
The Court finds that any defense to these claims has been abandoned. See
Jackson v. Federal Exp., 766 F.3d 189, 194–96 (2d. Cir. 2014). The Court’s independent
review of the record, including the Rule 56.1 statements, indicates that summary
judgment is appropriate on these claims. Id. at 194 (“Rule 56 does not allow district

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courts to automatically grant summary judgment on a claim simply because the
summary judgment motion, or relevant part, is unopposed.”).
New York’s Wage Theft Prevention Act requires employers to provide written
wage notice “within 10 business days of his first day of employment.” Hernandez v.
JRPAC Inc., No. 14-CV-4176, 2016 WL 3248493, at *29 (S.D.N.Y. June 9, 2016).
[E]mployers [must] provide their employees a written notice with the
following information: (1) the rate or rates of pay and basis thereof;
(2) allowances, if any, claimed as part of the minimum wage, including tip,
meal, or lodging allowances; (3) the regular pay day designated by the
employer; (4) the employer’s name; (5) any “doing business as” names used
by the employer; (6) the physical address of the employer’s main office or
principal place of business, and a mailing address if different; (7) the
employer’s telephone number; and (8) such other information as the
commissioner deems material and necessary.
Id. (quoting Salinas v. Starjem Rest. Corp., 123 F. Supp. 3d 442, 474 (S.D.N.Y. 2015));
see also NYLL § 195(1)(a). The written notice must be “in writing in English and in the
language identified by each employee as the primary language of such employee.” NYLL
§ 195(1)(a). The WTPA also requires that employers provide employees wage
statements “with every payment of wages,” which must contain, among other things, the
dates of work covered by the statement, the rate of pay, and gross and net wages paid.
Id. § 195(3).
First, the Court concludes that Ortiz has established liability under Section
195(a)(1) because Defendants failed to provide Ortiz a written wage notice within 10
days of her first day of employment. Defendants claim that they provided the Section
195(1) Notice at the time of her hiring, citing the only Section 195(1) Notice produced.
(Defs. 56.1 Stmt. ¶ 37). However, that notice is dated June 27, 2019, and it is
undisputed that Ortiz began working at Starlet’s in 2016. (Notice and
Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State
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Labor Law (“Section 195(1) Notice”), attached as Ex. 5 to Nardo Decl., Dkt. No. 19-7; Pl.
56.1 Stmt. ¶ 35). Accordingly, as there is no genuine dispute as to whether Defendants
provided Ortiz with a wage notice within 10 days of her employment—the only evidence
in the form of Ortiz’s unrebutted statement that she did not receive such a statement,
(id. ¶ 35)—the Court grants summary judgment as to the notice claim.
Second, Ortiz claims Defendants violated Section 195(3) by issuing wage
statements that “did not list the basic minimum hourly wage, did not list the proper
amount of the tip credit (except for one paystub), and listed the wrong tip credited rate
of pay in 2019.” (Pl. Mem. of Law at 4). Each pay stub provided violates the WTPA.
Five statements do not list the rate of regular pay. (Pay Stubs at 1–4, 7). Two list the
regular rate of pay as $7.50 in 2017, (id. at 5–6), when the basic minimum hourly rate
was $11.00 for employers with 11 employees or more. See History of Minimum Wage in
New York State, N.Y. Dep’t of Lab., https://dol.ny.gov/history-minimum-wage-newyork-state (last visited Mar. 27, 2024). Because the wage statements do not include the
information required by Section 195(3), the Court finds each wage statement is defective
and grants summary judgment on this claim. See Orellana v. One if By Land Rest. LLC,
No. 18-CV-7865, 2020 WL 5768433, at *13 (S.D.N.Y. Sept. 27, 2020) (finding wage
statements did not comply with WTPA requirements where the statements “d[id] not
include a rate for the earnings category labelled ‘regular’”).
An employer who fails to provide a Section 195(1) Notice within ten business days
of the employee’s first day of employment is liable for statutory damages of $50 for each
work day, up to $5,000. NYLL § 198(1-b). And if an employee is not provided wage
statements in compliance with NYLL § 195(3), an employee may recover $250 for each
work day that the violations occurred, up to $5,000. Id. § 198(1-d). The pay stubs
8

provided by Ortiz show a work period of 103 days. (See Pay Stubs). Accordingly, the
Court finds she is entitled to $5,000 in statutory damages for violations of Section
195(1), and $5,000 for violations of Section 195(3) for failure to provide wage
statements.
II.

Minimum Wage Under FLSA and NYLL

Ortiz argues that Defendants paid her a wage lower than the permissible
minimum wage without giving her proper notice that Defendant was taking a tip credit
allowance. (Pl. Mem. of Law at 10). She claims that she should recover $3,685 in
unpaid wages and $3,685 in liquidated damages. (Id. at 11). The Court finds it
inappropriate to grant summary judgment.
“Both the FLSA and the NYLL permit an employer to pay a tipped worker a cash
wage that is lower than the statutory minimum wage, provided that the cash wage and
the employee’s tips, taken together, are at least equivalent to the minimum wage.”
Inclan v. N.Y. Hosp. Grp., Inc., 95 F. Supp. 3d 490, 497 (S.D.N.Y. 2015); see also
Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 239–40 (2d. Cir. 2011).
“Under the FLSA, an employer may not claim a tip credit as to an employee’s wages
unless the employer has informed that employee of the provisions of the section of the
FLSA permitting the tip credit.” Inclan, 95 F. Supp. 3d at 497 (collecting cases); see 29
U.S.C. § 203(m)(2)(A) (tip credit wage does not apply “unless such employee has been
informed by the employer of the provisions of this subsection”). “The notice provision is
‘strictly construed’ and ‘requires that an employer take affirmative steps to inform
affected employees of the employer’s intent to claim the tip credit.’” Galvez v. 800
Ginza Sushi Inc., No. 19-CV-8549, 2022 WL 748286, at *9 (S.D.N.Y. Mar. 11, 2022)
(quoting Inclan, 95 F. Supp. 3d at 497). Though FLSA “does not require that the notice
9

be given in writing,” Hernandez, 2016 WL 3248493, at *23, the employer bears the
burden of showing it “informed employees that tips are being credited against their
wages.” Id. (quoting Inclan, 95 F. Supp. 3d at 497).
“The NYLL allows an employer to take a tip credit for tipped employees, subject
to certain conditions similar to those under the FLSA.” See id. at *25. An employer may
take a tip credit “if a service employee or food service worker received enough tips and if
the employee has been notified of the tip credit as required in section 146-2.2.” Id.
(quoting N.Y. Comp. Codes R. & Regs. (“N.Y.C.R.R.”) tit. 12, § 146-1.3). “Notice of the
tip credit under the NYLL . . . must be written: ‘Prior to the start of employment, an
employer shall give each employee written notice of the employee’s regular hourly pay
rate, overtime hourly pay rate, the amount of tip credit, if any, to be taken from the basic
minimum hourly rate, and the regular payday.’” Id. (quoting N.Y.C.R.R. tit. 12, § 1462.2(a)). In addition to giving the notice in writing, an employer must obtain an
“acknowledgement of receipt of such notices, signed by the employee,” and the signed
acknowledgements must be kept for six years. Id. (citing N.Y.C.R.R. tit. 12, § 146-2.2(a),
(c)). If an employer fails to adhere to the notice requirements, it “may not utilize the tip
credit to satisfy its minimum wage and overtime obligations.” Id. The employer bears
the burden of showing that they have complied with tip notice requirements; if the
employer does not demonstrate compliance, it “is liable for the difference between the
full minimum wage rate and what the employee was actually paid.” Salustio v. 106
Columbia Deli Corp., 264 F. Supp. 3d 540, 554 (S.D.N.Y. 2017).
Defendants did not address Ortiz’s claims for unpaid minimum wages in their
opposition brief and did not provide any evidence that they had complied with the
FLSA’s or the NYLL’s tip credit notice requirements, issues on which Defendants bear
10

the burden of proof. Mendez v. MCSS Rest. Corp., 564 F. Supp. 3d 195, 211 (E.D.N.Y.
2021) (“The employer bears the burden [under the FLSA] of showing that it satisfied the
notice requirement by, for example, providing employees with a copy of the statutory
provision and informing them that their tips will be used as a credit against the
minimum wage as permitted by law.” (quotations and alteration omitted)). In the
Complaint and in her memorandum of law, Ortiz argues that Defendants failed to issue
a tip credit notice. (Compl. ¶ 23; Pl. Mem. of Law at 10). Because Defendants bear the
burden of proof on this issue, Ortiz may prevail—and thereby preclude Defendants from
asserting notice was provided at trial—by simply pointing out the absence of evidence in
the record, and without coming forward with evidence of her own. See, e.g., Inclan, 95
F. Supp. 3d at 498 (“Because the employer has the ultimate burden to prove compliance
with the tip credit notice requirement, . . . . the employer must adduce definite
competent evidence showing that waiters were informed of the tip credit. As defendants
here have not done so, the Restaurant is liable under the FLSA for plaintiffs’ unpaid
minimum wages without a tip credit allowance.” (quotations and citation omitted)).
“When the moving party has pointed to the absence of evidence to support an essential
element on which the party opposing summary judgment has the burden of proof, the
opposing party, in order to avoid summary judgment, must show the presence of a
genuine issue by coming forward with evidence that would be sufficient, if all reasonable
inferences were drawn in his favor, to establish the existence of that element at trial.”
United States v. Rem, 38 F.3d 634, 643 (2d Cir. 1994) (citing inter alia Celotex, 477 U.S.
at 322–23); see Fed. R. Civ. P. 56(c)(1).
Though Defendants cannot assert tip notice at trial, summary judgment still must
be denied because Ortiz failed to put forth evidence establishing the amount of wages
11

due. The only evidence that includes hours worked and wages paid are the seven pay
stubs provided by Ortiz. The pay stubs represent 96 hours worked, but Ortiz is
requesting damages for 901 hours worked. (See Pay Stubs; Pl. Mem. of Law at 11). She
provides no additional evidence for the other 805 hours worked. Because the Court
does not have evidence as to when these hours were worked and how much she was paid
for these hours, the Court denies summary judgment on this claim.2
Without providing evidence, Ortiz claims she is entitled to $3,685 for the entirety
of the period she worked. (Pl. Mem. of Law at 11). She arrives at this calculation
ostensibly based upon the following formula: she “divid[es] the total amount of wages
paid according to [Ortiz]’s W-2’s (excluding tips) by the applicable tip-credited
minimum wage for each year (and round[s]).” (Id. at 10). It appears that she wants to
divide the wages (excluding tips) listed on her W-2 by the tip credit minimum wage to
determine her hours worked, multiply the hours worked by the minimum wage, and
subtract the amount she earned from the amount owed under the minimum wage. This
method is unreliable and leads to inaccurate results in her case. The pay stubs show
that Defendants did not consistently pay the correct tip credit wage each year, (see Pay
Stubs), so dividing yearly wages by the tip credit wage for said year would not
necessarily provide an accurate calculation of the hours Ortiz worked. In addition, the
W-2s themselves do not provide the number of hours worked per year, meaning any
extrapolation from the calculation derived from the pay stubs themselves—itself a
flawed calculation—is impossible to perform. (W-2 Statements, attached as Ex. 8 to

Because the Court denies summary judgment as to the unpaid minimum wage
claims and did not award any damages, Ortiz’s request for liquidated damages equal to
100% of the actual damages is denied as well.
2

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Nardo Decl., Dkt. No. 19-6). Accordingly, the Court cannot determine, based on the W2s, the wages owed to Ortiz, and this requires denial of summary judgment on this
claim.3
III.

Untimely Payments Under FLSA and NYLL § 191(1)(a)(i)
A. Untimely Payments Under FLSA

“The FLSA does not explicitly prescribe a payment schedule, but ‘it is clear that
the FLSA requires wages to be paid in a timely fashion.’” Lipstein v. 20X Hosp. LLC,
No. 22-CV-4812, 2023 WL 6124048, at *12 (S.D.N.Y. Sept. 19, 2023) (quoting Rogers v.
City of Troy, 148 F.3d 52, 57 (2d Cir. 1998)).
Ortiz argues that Defendants violated FLSA by failing to pay her in a timely
manner and requests $7,336.50 in liquidated damages, which she claims is equal to the
total amount of wages (excluding tips) for which Defendants failed to pay her in a timely
manner. (Pl. Mem. of Law at 6–7). The amount requested reflects 901 hours of work.
(See id. at 11). Ortiz provided seven pay stubs that were each paid a month or more late,
representing 96 hours of work. (See Pay Stubs). Ortiz is asking the Court to impute that
all her paychecks were late from the seven pay stubs provided. Without evidence
showing that the paychecks for the other 805 hours were also untimely, the Court must
deny summary judgment on this claim.4

3

Nor is there sufficient evidence and detail in Ortiz’s declaration. (See Ortiz

Decl.).
Though the Court denies summary judgment on this claim for failure to provide
enough evidence, it also notes that Defendants’ arguments are without merit.
Defendants argue that FLSA does not prescribe a particular payment schedule and that
the timeliness of payments may depend on whether a plaintiff is proceeding pro se and
whether a plaintiff “exhibits more of a need for the minimum wage they were to earn.”
(Defs. Mem. of Law at 5). Defendants further argue that here, the minimum wage is “an
afterthought for the bartenders due to the large sum of cash they collect as tips,” and
4

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B. Untimely Payments Under NYLL § 190(4)
Ortiz also moves for summary judgment on her claim that she was entitled to be
paid each week because she is a “manual worker” under NYLL § 190(4). (Pl. Mem. of
Law at 8–9). A manual worker is defined as “a mechanic, workingman or laborer,”
NYLL § 190(4), and “[t]he Department of Labor interprets this provision to include
‘employees who spend more than 25 percent of their working time performing physical
labor.’” Rankine v. Levi Strauss & Co., No. 22-CV-3362, 2023 U.S. Dist. LEXIS 89064,
at *16 (S.D.N.Y. May 22, 2023) (quoting N.Y. Dep’t of Lab. Op. Letter, No. RO-09-0066
(May 21, 2009)). Under NYLL § 191(1)(a)(i), “[a] manual worker shall be paid weekly.”
The Court denies summary judgment on this claim because there are genuine
issues of material fact as to Ortiz’s duties and whether she qualifies as a manual laborer.
Ortiz claims that her duties included carrying bottles with ice buckets and plastic cups to
customers and to the VIP section, mixing and pouring drinks, serving drinks to the
owner and his friends in the basement, and carrying a box of cash downstairs. (Pl. 56.1
Stmt. ¶ 62; Ortiz Decl. ¶¶ 2–6). She claims that Startlets did not want the bartenders to
sit down during their shifts. (Id. ¶ 3). Defendants dispute that these duties were
assigned to bartenders and claim that other employees, such as busboys, waitresses, and
barbacks, performed them. (Def. 56.1 Stmt. ¶ 62). According to Defendants, bartenders
are stationed at a register behind the bar and are only responsible for making and
selling drinks. (Burch Decl. ¶ 6). Defendants deny that bartenders perform physical

therefore asks the Court to find a “longer payment schedule is not unreasonable.” (Id.).
Defendants offer no legal basis for this argument that the Court should determine what
is timely based on the financial need of a plaintiff. And while it is true that FLSA does
not set out a prescribed payment schedule, courts have found that two weeks is an
unreasonable time to delay a paycheck. See Coley v. Vannguard Urb. Improvement
Ass’n, Inc., No. 12-CV-5565, 2018 WL 1513628, at *13 (E.D.N.Y. Mar. 27, 2018).
14

tasks; they do not stock the bar or retrieve bottles of alcohol, do not carry buckets of ice,
and do not bring drinks to the owner. (Id. ¶ 7). These genuine disputes of material fact
make summary judgment inappropriate on a claim premised on Ortiz’s status as a
manual worker. See, e.g., Jibowu v. Target Corp., 492 F. Supp. 3d 87, 96–100
(E.D.N.Y. 2020) (finding summary judgment inappropriate on overtime claims where
there were material facts in dispute as to plaintiff’s primary job duties).
IV.

Attorney’s Fees

Ortiz moves for summary judgment on attorney’s fees, requesting $26,703.50 in
fees and costs. (Pl. Mem. of Law at 13–14). It is premature to seek attorney’s fees in this
case since the motion filed only sought partial resolution and multiple claims must now
proceed to trial. Dardashtian v. Gitman, No. 17-CV-4327, 2021 WL 746133, at *27
(S.D.N.Y. Feb. 16, 2021) (“[A] determination of the extent to which Plaintiffs should be
granted attorney’s fees is premature as the instant motion is only for partial summary
judgment. To what extent attorney’s fees should be awarded should await a
comprehensive judgment.”), report and recommendation adopted, 2021 WL 119811, at
*1–*2 (Mar. 30, 2021). Any application for attorney’s fees can be renewed following the
close of trial.
CONCLUSION
For the reasons stated, Plaintiff Ortiz’s motion for partial summary judgement is
granted in part and denied in part. The Court finds that Ortiz is entitled to: $5,000 for
Defendants’ violation of NYLL § 195(1), and $5,000 for Defendants’ violation of NYLL
§ 195(3). The Court denies summary judgment as to the rest of Ortiz’s claims; however,
at trial, Defendants may not defend against any failure to pay a minimum wage by
asserting that Plaintiff received tip credits.
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This case is referred to the EDNY Mediation Panel, and mediation shall be
completed by 5/27/2024. The parties shall select a mediator by 4/10/2024. For
assistance with any questions about the mediation process or the selection of a
mediator, counsel are invited to contact the EDNY ADR Administrator at (718) 6132578.
The parties are directed to file a joint pretrial order consistent with the Individual
Practices of Magistrate Judge Bulsara by 6/25/2024.

SO ORDERED.
/s/Sanket J. Bulsara March 27, 2024
SANKET J. BULSARA
United States Magistrate Judge
Brooklyn, New York

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