Fuhrmann et al v. EAA Inspection Services, Inc. et al

Filing 6

ORDER - The Court grants the Defendants' 2 motion to dismiss Count III of the Plaintiffs' Complaint, asserting violations of the NYLL spread-of-hours provision. Signed by Judge Arthur D. Spatt on 10/1/12. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MELISSA FUHRMANN and JEFFREY
FUHRMANN,
Plaintiffs,

ORDER
12-CV-1361 (ADS)(ARL)

-againstEAA INSPECTION SERVICES, INC., and
ROBERT PARISI,
Defendants.
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APPEARANCES:
Law Offices of Neil H. Greenberg & Associates
Attorneys for the plaintiffs
900 Merchant Concourse
Suite 314
Westbury, NY 11590
By: Justin M. Reilly, Esq., Of Counsel
Zabell & Associates, P.C.
Attorneys for the defendants
4875 Sunrise Highway
Suite 300
Bohemia, NY 11716
By: Saul D. Zabell, Esq., Of Counsel
SPATT, District Judge.
On March 30, 2012, Plaintiffs Melissa Fuhrmann and Jeffrey Fuhrmann (“the Plaintiffs”)
commenced this action against Defendants EAA Inspection Services, Inc., and Robert Parisi
(“the Defendants”), alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.§§
201 et seq., the New York Labor Law (“NYLL”), sections 650 et seq., including Part 142,
section 142-2.2 (“Overtime Rate”) and section 142-2.4 (“Spread of Hours Pay”) of Title 12 of
the Official Compilation of Codes, Rules and Regulations promulgated by the Commissioner of
Labor pursuant to Minimum Wage Act (Article 19 of the New York State Labor Law). On
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April 25, 2012, the Defendants moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss Count III of the Plaintiffs’ Complaint, which alleged violations of the NYLL for failure
to pay “spread-of-hours” compensation. The Defendants argued that because the Plaintiffs
admitted in their Complaint that their base rate of pay substantially and sufficiently exceeded the
New York State minimum wage, the Plaintiffs’ spread-of-hours claim should be dismissed as a
matter-of-law.
By letter dated May 25, 2012, the Plaintiffs informed the Court that they consented to the
dismissal of their spread-of-hours claim. In the letter, the Plaintiffs cited to the Court’s decision
in Sosnowy v. A. Perri Farms, Inc., 764 F. Supp. 2d 457 (E.D.N.Y. 2011), which held that “the
spread-of-hours provision is properly limited to enhancing the compensation of those receiving
only the minimum required by law.” Id. at 474 (quoting Almeida v. Aguinaga, 500 F. Supp. 2d
366, 370 (S.D.N.Y. 2007)). Accordingly, the Court grants the Defendants’ motion to dismiss
Count III of the Plaintiffs’ Complaint, asserting violations of the NYLL spread-of-hours
provision.

SO ORDERED.
Dated: Central Islip, New York
October 1, 2012

__ /s/ Arthur D. Spatt _
ARTHUR D. SPATT
United States District Judge

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