Pray v. Long Island Bone & Joint, LLP et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: Upon de novo review of the Report and consideration of Defendants' motion to strike 30 is denied. Defendants' motion for summary judgment 27 is granted in part and denied in part as fo llows: (i) Defendants are granted leave to amend their Answer to assert the affirmative defenses of lack of capacity and judicial estoppel; (ii) Plaintiff's FLSA/NYLL claims that accrued prior to 11/21/2012 are dismissed under the doctrine of ju dicial estoppel; (iii) Plaintiff's FLSA/NYLL claims that accrued after 11/21/2012 survive on the ground that there is a material question of fact concerning whether or not Plaintiff was properly classified as an exempt employee under the FLSA 39;s administrative exemption; (iv) the Court declines to reach the issue of whether or not Defendants acted willfully because it is pertinent only to Defendants' statute of limitations argument, which is mooted by the Court's dismissal of Plaintiff's claims that accrued prior to 11/21/2012; and (v) the Court declines to dismiss Plaintiff's putative collective action claims at this time, though Plaintiff must serve and file a fully briefed motion for conditional certification of a collective action, if any, pursuant to Rule 4(E) of this Court's individual rules by no later than 11/25/2016. SO Ordered by Judge Sandra J. Feuerstein on 9/14/2016. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DOROTHEA B. PRAY, on behalf of herself and
all others similarly situated,
9/14/2016 2:06 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
LONG ISLAND BONE & JOINT, LLP and
MICHAEL FRACCHIA, M.D. in his individual
and professional capacities,
FEUERSTEIN, District Judge:
Before the Court is Magistrate Judge Steven I. Locke’s August 11, 2016 Report and
Recommendation (Dkt. 32) (“Report”) recommending that (i) defendants Long Island Bone &
Joint, LLP’s (“LIBJ”) and Michael Fracchia, M.D.’s (together, “Defendants”) motion to strike
Plaintiff’s affidavit and certain paragraphs in Plaintiff’s Local Rule 56.1 counterstatement (Dkt.
30) be denied, and (ii) Defendants’ motion for summary judgment pursuant to Federal Rule of
Civil Procedure 56 (Dkt. 27) be granted in part and denied in part. On August 25, 2016,
Defendants timely filed objections to Magistrate Judge Locke’s Report pursuant to Federal Rule
of Civil Procedure 72(b)(2). (Dkt. 33) (“Def’s Obj.”). On September 8, 2016, Plaintiff filed a
response to Defendants’ objections. (Dkt. 34). For the following reasons, the Court adopts the
Report in its entirety. Defendants’ motion to strike is denied and Defendants’ motion for
summary judgment is granted in part and denied in part, as recommended in the Report.
Review of Magistrate Judge’s Report
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, magistrate judges may
conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed R.
Civ. P. 72(b); see Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d
Cir. 2002). Any portion of a report and recommendation on dispositive matters to which a
timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). However, “[w]hen a party makes only conclusory or general objections, or simply
reiterates the original arguments, the Court will review the report strictly for clear error.”
Frankel v. City of New York, Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y.
Feb. 25, 2009) (internal citations omitted). “Objections to a report must be specific and clearly
aimed at particular findings in the magistrate’s proposal.” Id. (internal citation omitted). Where
no timely, specific, and nonconclusory objection is raised, a district court may adopt a magistrate
judge’s report and recommendation concerning a dispositive matter where there is no clear error
on the face of the record. See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great Meadow
Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). Regardless of whether proper objections have
been filed, a district judge may accept, reject, or modify any of the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see North Shore-Long Island
Jewish Health Care System, Inc. v. MultiPlan, Inc., 953 F. Supp. 2d 419, 424 (E.D.N.Y. 2013).
Summary judgment is only appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law,” Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006)
(quoting Fed. R. Civ. P. 56(c)), and “where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Belton v. City of New York, 629 Fed. Appx. 50,
50 (2d Cir. 2015) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). A district court “is not to weigh the evidence but is instead required to view the
evidence in the light most favorable to the party opposing summary judgment, to draw all
reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty
America v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotations
In order to defeat a motion for summary judgment, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts… [She] must
come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita, 475 U.S. at 586-87) (emphasis
in original); see also R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(“opposing party must provide concrete particulars showing that a trial is needed”) (internal
quotations omitted). “It is not sufficient merely to assert a conclusion without supplying
supporting arguments or facts.” BellSouth Telecommunications, Inc. v. W.R. Grace & CompanyConn., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
THE REPORT AND DEFENDANTS’ OBJECTIONS
Motion to Strike
In his Report, Magistrate Judge Locke recommends denying Defendants’ motion to strike
Plaintiff’s affidavit and paragraphs 8, 9, 12, 13, 15, 16, 18, 19, 22, 25-30, 34, 35, 37-48, 50, 51,
53, 57-59, 61, 63, 67, and 71 from Plaintiff’s Local Rule 56.1 counterstatement on the ground
that Plaintiff’s “affidavit and counterstatement of facts … contradict her [deposition] testimony
in an attempt to minimize her role at LIBJ to avoid summary judgment.” (Report at 11-16; Def’s
Strike Mem. at 2).1 Defendants primarily offer overbroad and conclusory objections to this
branch of the Report, such as “Defendants contend that the entirety of the affidavit is
contradictory, self-serving and submitted for the sole purpose to defeat summary judgment with
no basis in factual evidence.” (Def’s Obj. at 4). Such nonspecific objections provide no basis to
reject or modify the reasoned recommendations set forth in the Report.
Defendants specifically object that paragraphs 8 and 9 of Plaintiff’s affidavit are
contradicted by Plaintiff’s deposition testimony reflected on pages 108:20-22, 254:18-255:4, and
256 of Plaintiff’s deposition transcript. (Def’s Obj. at 3). Paragraph 8 of Plaintiff’s affidavit
says: “Appeals which did not fall within a standard template required only a basic, simple letter
briefly explaining why the billed procedure was proper.” Paragraph 9 says: “Prior to the appeal
process, I did not engage in a thorough review of medical records. Indeed, even during the
appeal process, I only reviewed whether the physician and medical assistant’s documentation
appeared to satisfy the requirements of a procedure code.” The portions of Plaintiff’s deposition
testimony that Defendants cite do not in fact contradict these statements. Moreover, Defendants
themselves refer to Plaintiff utilizing templates in connection with drafting appeals letters in their
own Local Rule 56.1 statement. (See Defs.’ 56.1 Stmt. ¶ 57).
Defendants’ sole remaining specific objection to this branch of the Report is that the
“recommendation and finding that Paragraph 28 of Defendants[’] [56.1 statement] failed to cite
to the record evidence that plaintiff spent 80% of her day on appeals” did not adequately take
into account that, during her deposition, “Plaintiff stated that she spent the ‘bulk’ of her day
Unless otherwise noted, abbreviated citations to documents have the same meaning they have in the Report.
working on appeals.” (Def. Obj. at 4). A review of the deposition transcript reveals that defense
counsel, not Plaintiff, used the word “bulk.” (Ex. H at 254:18-19). In any event, Defendants fail
to explain why “bulk” means eighty percent (80%) of Plaintiff’s time, as Defendants contend,
rather than “approximately half,” the proportion of her time that Plaintiff avers she spent
working on appeals.
In sum, Defendants’ objections to this branch of the Report are either non-specific and
conclusory or specific but meritless. Accordingly, as recommended in the Report, Defendants’
motion to strike is denied.
Motion for Summary Judgment
The Report recommends that Plaintiff’s claims that accrued prior to November 21, 2012
– the date Plaintiff’s debts were discharged in bankruptcy – be dismissed under the doctrine of
judicial estoppel based on Plaintiff’s failure to disclose her FLSA / NYLL claims to the
bankruptcy court during her Chapter 7 proceeding. (See Report at 18-24). In connection with
their motion for summary judgment, Defendants argued that all of Plaintiff’s claims – including
those that accrued after November 21, 2012 – should be barred under the doctrine of judicial
estoppel because Plaintiff purportedly “had a statutory obligation to disclose the claims and to
petition the Bankruptcy Court to re-open the petition prior to bringing the within action.” (Defs.’
Reply Mem. at 23). As Magistrate Judge Locke correctly noted in the Report, Defendants
“offer[ed] no support for their contention that the debtor … must seek to re-open a discharged
bankruptcy to disclose subsequently accrued claims” and “ ‘the relevant date for assessing [the
plaintiff’s] knowledge of her claims is … the date the bankruptcy court granted her a discharge
and closed the case.’ ” (Report at 23-24) (quoting Thomas v. JP Morgan Chase, N.A., No. 11cv-3656, 2012 WL 2872164, at *8 (E.D.N.Y. July 11, 2012).
Defendants object to this branch of the Report by arguing that Plaintiff’s post-November
21, 2012 claims are also barred because “the failure to notify the Bankruptcy Court and reopen
the Bankruptcy claim is a total bar to recovery…” (Def. Obj. at 5). Defendants fail to cite, and
this Court is unaware of, any legal authority that lends support to the proposition that claims
accruing after the discharge of debts through bankruptcy are barred by the doctrine of judicial
estoppel if the debtor does not reopen her bankruptcy case and notify the bankruptcy court of her
new claims. Accordingly, the Court adopts this branch of the Report and bars Plaintiff from
pursuing only those claims that arose prior to November 21, 2012 under the doctrine of judicial
Plaintiff’s Exercise of Discretion and Independent Judgment
In support of their motion for summary judgment, Defendants argued that Plaintiff was
“properly classified as an exempt employee, pursuant to the Administrative Exemption,” and was
therefore not subject to FLSA / NYLL overtime pay requirements. (Defs.’ Mem. at 5). In his
Report, Magistrate Judge Locke recommends denying this branch of Defendants’ motion on the
ground that material questions of fact exist concerning the degree to which Plaintiff “exercise[d]
… discretion and independent judgment with respect to matters of significance” – one (1) of the
three (3) criteria that must be satisfied to qualify for the administrative exemption pursuant to 29
C.F.R. § 541.200(a). (Report at 29-36). 2 In recommending that summary judgment on this
As noted in the Report, the parties do not dispute that Plaintiff was paid at least $455 per week during the relevant
period, thus satisfying the first of the three administrative exemption criteria set forth in 29 C.F.R. § 541.200(a)(1).
In the Report, Magistrate Judge Locke also concluded that “there is no genuine issue of material fact that precludes a
finding that Plaintiff’s primary duties related to LIBJ’s management and general business operations, thereby
satisfying the second prong of the administrative exemption standard” set forth in 29 C.F.R. § 541.200(a)(2).
(Report at 29). Neither party objects to that conclusion. This Court agrees with and adopts that conclusion.
issue is inappropriate, Magistrate Judge Locke discussed in detail Plaintiff’s and Defendants’
various competing positions with respect to whether, how often, and/or the extent to which
Plaintiff exercised discretion and independent judgment at work. (Id. at 31-35). Nonetheless,
Defendants – without citing to their 56.1 statement even once – argue that Magistrate Judge
Locke “overlooked,” “did not evaluate,” and/or “disregarded” certain deposition testimony and
exhibits, including “1000 pages of emails,” which, according to Defendants, dispense with all
material questions of fact and allow the Court to enter summary judgment in their favor. (Def.
Obj. at 5-14).
Defendants cite deposition testimony purportedly establishing that, inter alia: (i) Plaintiff
“obtained and disseminated [carpal tunnel syndrome guidelines] to the doctors … and sent
emails advising about the guidelines and what she reviewed and extrapolated from the
guidelines”; (ii) “Plaintiff instructed people on how to not make the same mistakes so that they
could get paid”; (iii) “Plaintiff researched online how to bill out and get paid for physical therapy
services [and] implemented the process for the entire practice”; (iv) Plaintiff “advised and helped
them to get things posted”; (v) Plaintiff “made recommendations to doctors and medical
assistants when she forwarded changes in guidelines”; (vi) “Plaintiff interacted with the NYC
controller and Mayor’s office to set up and initiate Electronic Billing with the City of N.Y.”; (vii)
Plaintiff “brought the Workers’ Compensation receivable down from $1.2 million to
approximately $600,000”; (viii) “Plaintiff conceded that she was charged with researching
ultrasound guidelines and researching all the different carriers, the coding to use and how much
they were to be paid”; (ix) “Plaintiff would get Workers’ Compensation updates via email, look
at them and determine if they applied to LIBJ and if they did she would forward the information
to someone”; and (x) “Plaintiff helped the Medical Assistants and they relied on her to help them
with coding and the forms.” (Id. at 7-11). Defendants also cite to individual emails: (i) “emails
sent to Dr. Fracchia and Kristen Poje from [Plaintiff] recommending that the Medical Assistants
attend training”; (ii) an “email to Kristen Poje re: suggesting to have front desk register No-Fault
patients with the private insurance in in [sic] view of change to the guidelines”; and (iii) a “June
2013 email from Ms. Poje to Dr. Fracchia documenting that ‘Dotty’ would ‘manage’ Workers’
Compensation and No Fault billing accounts.” (Id. at 12-13).
Upon review of the deposition testimony and documentary exhibits that Defendants
reference in their objections, the Court does not agree with Defendants’ assessment that these
items dispense with triable questions of fact concerning whether Plaintiff exercised sufficient
discretion and independent judgment to qualify for the FLSA / NYLL administrative exemption.
Accordingly, the Court adopts this branch of the Report and denies Defendants’ motion for
summary judgment on Plaintiffs’ FLSA / NYLL claims that accrued after November 21, 2012.
Upon de novo review of the Report and consideration of Defendants’ objections, the
Court adopts the Report in its entirety. Defendants’ motion to strike (Dkt. 30) is denied.
Defendants’ motion for summary judgment (Dkt. 27) is granted in part and denied in part, as
follows: (i) Defendants are granted leave to amend their Answer to assert the affirmative
defenses of lack of capacity and judicial estoppel; (ii) Plaintiff’s FLSA / NYLL claims that
accrued prior to November 21, 2012 are dismissed under the doctrine of judicial estoppel; (iii)
Plaintiff’s FLSA / NYLL claims that accrued after November 21, 2012 survive on the ground
that there is a material question of fact concerning whether or not Plaintiff was properly
classified as an exempt employee under the FLSA’s administrative exemption; (iv) the Court
declines to reach the issue of whether or not Defendants acted willfully because it is pertinent
only to Defendants’ statute of limitations argument, which is mooted by the Court’s dismissal of
Plaintiff’s claims that accrued prior to November 21, 2012; and (v) the Court declines to dismiss
Plaintiff’s putative collective action claims at this time, though Plaintiff must serve and file a
fully-briefed motion for conditional certification of a collective action, if any, pursuant to Rule
4(E) of this Court’s individual rules by no later than November 25, 2016.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: September 14, 2016
Central Islip, New York
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