Feuer et al v. Cornerstone Hotels Corp. et al
Filing
94
FINDINGS OF FACT AND CONCLUSIONS OF LAW: After carefully considering the evidence introduced at trial, the Court finds that defendant Butt is liable for the limited minimum wage violations and for the wage statement and wage notice violations discussed herein. The Clerk of the Court shall enter judgment accordingly. Ordered by Circuit Judge VJ-Joseph F Bianco on 1/24/2020. (Zisa, Marie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
N•
14-CV-5388 (JFB) (SIL)
SETH FEUER AND SUSANN FEUER,
Plaintiffs,
VERSUS
CORNERSTONE HOTELS CORP. AND NAEEM BUTT,
Defendants.
MEMORANDUM AND ORDER
January 24, 2020
JOSEPH F. BIANCO, Circuit Judge (sitting by
designation):
Plaintiffs Seth Feuer and Susann Feuer
("plaintiffs") bring this action against
Cornerstone Hotels Corp., doing business as,
at various times, Sun N Sand Hotel, Sea
Haven Resort, Ocean Breeze Motel, and
Longview
Motel
("the
hotel"
or
"Cornerstone"), and Naeem Butt ("Butt")
(collectively, "defendants"), asserting claims
under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201-219, and the
New York Labor Law ("NYLL"), N.Y.
Lab. Law §§ 190 et seq. and 650 et seq.
Specifically, plaintiffs allege that defendants 1
violated the following provisions: (1) the
minimum wage and overtime provisions of
the FLSA, 29 U.S.C. §§ 206(a), 207(a); (2)
the minimum wage and overtime provisions
of the NYLL, N.Y. Lab. Law§§ 160, 652(1);
(3) the "spread of hours" provisions under the
1
Although the Court refers to both defendants for the
purpose of this opinion, Cornerstone was not a part of
NYLL, N.Y. Lab. Law§ 652; (4) N.Y. Lab.
Law § 195(3), which requires employers to
furnish employees with wage statements
containing certain information each payday;
and (5) N.Y. Lab. Law § 195(1), which
requires employers to furnish employees with
a wage notice containing certain information
at the time of hiring and on an annual basis.
In their complaint, plaintiffs seek:
( 1) preliminary and permanent injunctions
restraining defendants from violating the
relevant provisions of the FLSA and NYLL;
(2) an order restraining defendants from
retaliation against plaintiffs, (3) a judgment
declaring defendants' practices unlawful and
willful violations of federal and New York
state law; and (4) an award of compensatory
damages, liquidated damages, attorney's
fees, costs, pre-judgment interest, and postjudgment interest. (ECF Nos. 1, 12-13.)
the trial, and therefore the judgment is limited to
Butt.
and his wife, Susann Feuer, to have a free
room at the hotel while Seth helped out with
work at the hotel; (2) although Susann Feuer
assisted Seth Feuer in his work at the hotel,
the agreement with Butt was that Seth and
Susann Feuer would receive a total of $250
per week (regardless of whether Susann
Feuer assisted her husband in his tasks at the
hotel); (3) Seth Feuer was not "on call" to
work throughout each day; (4) Butt's records
accurately reflect the dates and hours worked
by Seth Feuer and Susann Feuer; (5) with the
exception of the first week of employment
(May 5 through 11, 2014), for which Seth
Feuer was not paid and Susann Feuer did not
work, the amount Butt paid each week was
sufficient to satisfy the minimum wage
requirement for the total hours worked by
Seth Feuer and Susann Feuer;2 (6) the total
hours worked by Seth Feuer or Susann Feuer
never exceeded 10 hours in any day and, thus,
plaintiffs are not entitled to any spread-ofhours pay; (7) the total hours worked by Seth
Feuer or Susann Feuer never exceeded 40
hours in any week and, thus, no overtime was
owed; and (8) neither Seth Feuer nor Susann
Feuer received wage statements or notice
provisions as required under New York
Labor Law during the period of time that they
were performing work at the hotel. 3
At the summary judgment stage, the
the
Report
and
Court
adopted
Recommendation of Magistrate Judge Steven
I. Locke, holding that: (I) Cornerstone is a
covered employer under the FLSA and
plaintiffs' employer under the FLSA and
NYLL; (2) Butt is individually liable as an
employer under the FLSA and NYLL;
(3) defendants are liable for failing to provide
wage notices and statements to plaintiffs as
required by NYLL § 195(1) and 195(3); and
(4) plaintiffs were entitled to summary
judgment on defendants' second and ninth
affirmative defenses of good faith and lack of
willfulness, and therefore entitled to
liquidated damages. (ECF No. 76.)
A bench trial was held on September 5
and September 6, 2018, to determine
defendants' liability, if any, with regard to the
overtime and minimum wage provisions of
the FLSA and NYLL and the "spread of
hours" provision of the NYLL. Having held
a bench trial, the Court now issues its
findings of fact and conclusions of law, as
required by Rule 52(a) of the Federal Rules
of Civil Procedure,
after carefully
considering the evidence introduced at trial,
including assessing the credibility of the
witnesses, the arguments of counsel, and the
controlling law on the issues presented.
Based upon these findings, and the other
findings infra, plaintiffs are entitled to the
following relief: (I) $92 in unpaid wages for
violations of the minimum wage provisions
of the FLSA and NYLL relating to Seth Feuer
In summary, based upon the credible
evidence, the Court finds that (1) in or about
early May 2014, Butt agreed to pay $250 per
week to Seth Feuer, and to allow Seth Feuer
Feuer (namely, 17 hours), and Susann Feuer did not
work any hours that week.
2
With the exception of the first week (for which Seth
Feuer received no compensation) and the week of May
26 to June I, 2014 (for which Seth Feuer was given
$ I 50), Butt gave $250 to Seth Feuer each week until
the employment ended in September 2014. The $250
payment was sufficient to satisfy the minimum wage
requirement for each week, even when the total hours
worked each week by Seth Feuer and Susann Feuer are
combined. For the week of May 26 to June I, 2014,
the $150 was also sufficient to cover the minimum
wage requirement for all the hours worked by Seth
3
Although Butt made clear that any work that Susann
Feuer performed to assist her husband would be
included in the $250 cash payment each week, Butt
was still required to comply with the wage statements
and notice provisions as it related to Susann Feuer
because he knew that she was performing work for
defendants, and in fact, Butt was tracking her hours.
2
On October 14, 2016, Butt filed a letter
requesting leave to amend his answer. (ECF
No. 57.) On October 17, 2016, plaintiffs filed
a motion for partial summaiy judgment.
(ECF Nos. 55, 56.) At the Court's direction,
Butt formally filed his motion to amend and
cross-motion for summary judgment on
November 17, 2016. (ECF No. 61.) The
Court referred the motions to amend and for
pa1tial summary judgment to Magistrate
Judge Locke on April 6, 2017. (ECFNo. 69.)
Magistrate Judge Locke issued a Report and
Recommendation on August 4, 2017 (ECF
No. 76), which the Court adopted on August
31, 2017 (ECF No. 78).
(for the week of May 5, 2014, to May 11,
2014, for which he was not paid); 4 (2) $92 in
liquidated damages relating to Seth Feuer; (3)
$2,700 in statutory damages relating to Seth
Feuer in connection with his eighteen weeks
of employment for violation of the wage
statements and notice provisions under
NYLL; (4) $2,300 in statutory damages
relating to Susann Feuer for violation of the
wage statements and notice provisions under
NYLL; (5) pre-judgment interest to be
determined; and (6) post-judgment interest to
be determined.
l. BACKGROUND
On September 15, 2014, plaintiffs filed
their complaint alleging violations of the
FLSA and NYLL. (ECF No. 1.) Defendants
answered on November 26, 2014. (ECF No.
11.) Counsel for defendants made a motion
to withdraw on March 12, 2015 (ECF No.
18), which was granted by Magistrate Judge
Locke on March 16, 2015. In an order dated
April 20, 2015 (ECF No. 21), Magistrate
Judge Locke informed Butt that, although he
could represent himself pro se, he could not
represent Cornerstone, "a corporation, which
must appear through an attorney" (ECF No.
76 at 5). The order further warned that failure
to obtain counsel could risk the corporation
being held in default and having a default
judgment entered against it. (Jd.) 5 To date,
no attorney has entered an appearance on
behalf of Cornerstone. The parties undertook
discovery for the remainder of 2015 and
much of 2016.
As noted supra, the Report and
Recommendation, as adopted, granted
plaintiffs' motion in its entirety, and denied
defendants' motions in their entirety, holding
that: (I) Cornerstone is a covered employer
under the FLSA and plaintiffs' employer
under the FLSA and NYLL; (2) Butt is
individually liable as an employer under the
FLSA and NYLL; (3) defendants are liable
for failing to provide wage notices and
statements to plaintiffs as required by NYLL
§ 195(1) and 195(3); and (4) plaintiffs were
entitled to summary judgment on defendants'
second and ninth affirmative defenses of
good faith and lack of willfulness, and
therefore entitled to liquidated damages.
(ECF No. 76.)
The Court held a bench trial on
September 5 and September 6, 2018, to
determine defendants' liability, if any, with
regard to the overtime and minimum wage
5
4
In their Proposed Findings of Fact, plaintiffs note
their intention to request a cettificate of default
judgment and subsequently move for default judgment
against Cornerstone, such that it may be "jointly and
severally liable" for the judgment amount. (ECF No.
87 at 3, n. J.)
Although plaintiffs stopped working at the hotel in
September 2014 and remained at the hotel until
Februaty 2015 without paying any rent, defendants are
not entitled to a lodging credit because plaintiffs were
no longer working at that point, and (in any event) no
notice was given to plaintiffs. See, e.g., N.Y. Comp.
Codes R. & Regs. tit. 12, § 146-2.3 ("The pay stub
must list hours worked, rates paid, gross wages, credits
claimed (for tips, meals and lodging) if any,
deductions and net wages.").
3
hotel where they lived and worked during the
relevant period. Plaintiffs also read into the
record portions of the deposition of Butt
takenonSeptember30,2015. (Pl.Ex. 8,ECF
No. 87-8.) Among the exhibits introduced at
trial were records of hours that Butt kept for
both plaintiffs. In one set of records, Butt
listed the tasks that plaintiffs performed, and
the other set included timecards (Pl. Exs. 1,
2, ECF No. 87-1, 2), the validity of which
plaintiffs contest. Plaintiffs also introduced a
record of Seth Feuer's hours (Pl. Ex. 4, ECF
No. 87-4), which Butt contests; a document
signed by Butt committing to pay Seth Feuer
$250 per week (PL Ex. 3, ECF No. 87-3), the
validity of which Butt contests; and emails
sent by Susann Feuer to a third party who was
considering purchasing the hotel during the
relevant period (Pl. Ex. 5, ECF No. 87-5). No
additional documentation was introduced
regarding Susann Feuer's hours.
provisions of the FLSA and NYLL, and the
spread-of-hours provision of the NYLL. 6
Plaintiffs Seth Feuer and Susann Feuer, and
plaintiffs' friend Rosemarie Markus, testified
for plaintiffs in their case-in-chief.
Defendant Naeem Butt testified for the
defense. Both sides also introduced exhibits
into the trial record for consideration by the
Court.
The Court has fully considered all of the
evidence presented by the parties, as well as
their written submissions. Below are the
Court's Findings of Fact and Conclusions of
Law.
II. FINDINGS OF FACT
The following section constitutes the
Court's Findings ofFact7 pursuant to Federal
Rule of Civil Procedure 52(a)(l). These
Findings of Fact are drawn from witness
testimony at trial and the parties' trial
exhibits.
Upon careful consideration, the Court
concludes that Butt's time records, entered
into evidence as Plaintiffs' Exhibits I and 2,
are adequate and accurate records of
plaintiffs' hours. 8 Throughout the records,
Butt documents the tasks performed and total
hours in one record (see Pl. Ex. 1), and logs
the time of the hours worked and total hours
in the other (see Pl. Ex. 2). The hours worked
are often recorded as occurring mid-to-late
morning through early-to-mid afternoon,
which is consistent with cleaning and
maintenance work that would need to be done
between 11:00 a.m. check-outs and 3:00 p.m.
Defendant Naeem Butt is the owner and
operator of Cornerstone Hotels Corp., doing
business as, at various times, Sun N Sand
Hotel, Sea Haven Resort, Ocean Breeze
Motel, and Longview Motel, located at 52
Longview Road, Southampton, New York.
(Tr. 20-21, 80, 118, 188.)
The hotel
comprises fourteen guest rooms. (Tr. 199.)
Defendant Butt runs the hotel, along with his
family, year-round. (Tr. 198-201.)
During the trial, plaintiffs offered the
testimony of Susann Feuer, Seth Feuer, and
Markus, a friend of plaintiffs who visited the
6
requirements (e.g., those listed at 29 C.F.R.
§ 516.2(a)(5)-(9)), the Comt concludes that the
records - combined with other documents and
testimony at trial - are more than sufficient to satisfy
an employer's burden to come forward with evidence
of the precise amount of work performed and to negate
the testimony and evidence offered by plaintiffs.
Both parties consented to a bench trial. (See
Defendants' Pretrial Order ("PTO"), ECF No. 81,
,r (v); Plaintiffs' PTO, ECF No. 80, ,r 5.)
7
To the extent that any Finding of Fact reflects a legal
conclusion, it shall be deemed a Conclusion of Law,
and vice-versa.
8
Even assuming arguendo that the records are
insufficient under the FLSA record-keeping
4
five additional months (over Butt's
objection) and left the hotel while the
eviction process was still pending. (Tr. 9194.)
B. Seth Feuer
check-ins. 9 (See Tr. 53.) Butt credibly
testified that he kept time records, including
records of the tasks performed, in order to
ensure that plaintiffs were paid adequately
for their time. (Tr. 202.) Based upon these
records and other credible evidence adduced
at trial, the Court concludes that Butt's time
records are accurate and makes the following
findings regarding plaintiffs' employment
with defendants.
I. Duration of Employment
Seth Feuer testified that he began
working for defendants on May 3, 2014 (Tr.
118), and that his last day was September 8,
2014 (Tr. 119, 143). Seth Feuer's records of
his own time also reflect that his last day was
September 8, 2014. 11 Butt testified that Seth
began work on May 6, 2014 (Tr. 207) and
worked for seventeen weeks (Tr. 200),
ending on September 2, 2014 (Tr. 206), the
day after Labor Day. Butt's time records
reflect hours for Seth Feuer beginning on
May 5, 2014, and concluding on September
2, 2014. (Pl. Ex. 1, at 1, 111; Pl. Ex. 2, at 112,
128.) In light of the conflicting testimony
and evidence on this issue, the Court
concludes (having evaluated the evidence,
including the credibility of the witnesses),
that Butt's time records are the most reliable
and credible evidence of Seth Feuer's dates
of employment. Accordingly, the Court finds
that Seth Feuer worked for defendants from
May 5, 2014, through September 2, 2014.
A. Background
Plaintiffs arrived at the hotel with the
understanding, through their contact with a
third party, that an individual (Duharminder
Singh) was going to purchase the hotel and
needed someone to operate it for him. (Tr.
60-68; Pl. Ex. 5.)
More specifically,
plaintiffs were told that they were going to be
paid $250 each to run the hotel, and also
would receive a free two bedroom house on
the property. (Tr. 63.) After plaintiffs
arrived at the hotel, the sale of the hotel fell
through. (Tr. 198.) Plaintiffs told Butt that
they were homeless at that point and needed
some money to eat. (Tr. 198.) Given that the
summer season was approaching, Butt agreed
to allow them to stay in a room for free, and
to find work at the hotel for Seth Feuer in
exchange for $250 per week. (Tr. 198-99.)
As discussed in more detail below, pursuant
to this arrangement, Seth Feuer started
working on May 5, 2014. On May 15, 2014,
Susann Feuer began assisting her husband in
his tasks. 10 (Tr. 199.)
2. Hours
The patties presented conflicting
testimony and documentary evidence
regarding Seth Feuer's hours. Seth Feuer
testified that he began work at I 0:00 a.m. (Tr.
120), and worked until at least 8:00 p.m. each
day (Tr. 127, 139).
Plaintiffs' friend
Rosemarie Markus, who testified that she
visited the hotel on one occasion for
After plaintiffs ceased working in early
September 2014, they continued to stay in the
hotel without paying rent for approximately
11
Although plaintiffs introduced Seth's own records
of his hours at trial, he did not begin recording time
until mid-June. (See Pl. Ex. 3, ECF No. 87-3.)
9
The Court notes that Butt also credibly testified that
his family assisted in the work that needed to be
perf01med at the hotel. (Tr. 300.)
10
To the extent that the details of this arrangement
vary in the record, the Court finds these facts based
upon the credible testimony at the trial.
5
besides cleaning such as maintenance, as
needed, and landscaping, on a weekly basis
(Tr. 125), the Court does not credit the
testimony of plaintiffs' witnesses with regard
to Seth Feuer's hours. 12
approximately three days in May or June
during the relevant period, recalled that Seth
Feuer would leave the room "a little later"
than 7:00 a.m. and return approximately half
an hour before Susann Feuer returned at 9:00
or 9:30 p.m. (Tr. 101-02.) Seth Feuer
testified that his responsibilities included
cleaning and maintenance of the guestrooms
and grounds, and that he would confer with
Butt before he began work each day, and
when he finished work each night. (Tr. 12025, 129.) Butt also testified that he knew
when Seth began and ended his work each
day because Seth would come and check in
with Butt when he had finished. (Tr. 224.)
Similarly, after considering all of the
evidence, the Court finds that Seth Feuer's
records do not accurately reflect the hours he
worked.
With respect to the records
themselves, they frequently reflect lengthy
stretches of work which remain unchanged
from day to day. For example, the records for
August 25 through 29 all indicate six hours of
work from 10:00 a.m. to 4:00 p.m., despite
the inevitable variation in work that would
accompany a fluctuation in guests from one
day to the next. (Pl. Ex. 4, at 131.) Plaintiffs'
records likewise fail to account for lunch and
other breaks to which Seth and Susann Feuer
both testified. (Tr. 43-44, 127.) The same
records bear the note, "on call 24 hours seven
days a week." (Pl. Ex. 4, at 133.) When
asked by the Court why his time records did
not account for hours until 8:00 p.m. each
day, Seth Feuer testified, regarding the tasks,
"No, because I was doing - it was like second
nature. I would just do it to do it." (Tr. at
145.) The Court finds this explanation to be
not credible. In short, the Court does not
believe these records are accurate when
considering the records in light of all of the
evidence in the case - including an
assessment of the credibility of the witnesses.
Seth Feuer testified that he would, "a
couple of times a week," "get calls after
hours" from Butt to assist with additional
tasks (Tr. 128), and that he was "on called
[sic] seven days at nights" (Tr. 145). Susann
Feuer similarly testified that "Seth was
always working, Seth was on call." (Tr. 52.)
In his testimony, Butt denied that Seth Feuer
was ever "on-call," noting that because Butt
lived on the property himself, after-hours
check-ins and other tasks were handled by
him and his family. (Tr. 209, 225.)
As previously stated, the hotel comprises
only fomteen guestrooms (Tr. 199), two of
which were occupied by plaintiffs and a longterm renter (Tr. 25-26, 147), and testimony
offered by both plaintiffs and Butt agree that
cleaning a single guestroom takes on average
between 10 to 20 minutes for a stayover, or
between 40 minutes to an hour for a
checkout. (Tr. 36, 38, 83, 122-23, 200-201.)
Butt also testified that he typically did not ask
Seth Feuer to clean more than two or three
rooms in a day, and that he only requested
that Seth Feuer clean four rooms on five or
six occasions. (Tr. 199-200.) Even crediting
testimony that Seth Feuer performed tasks
By contrast, the Court concludes that
Butt's records are accurate in light of the size
of the property, number of rooms, and tasks
performed, and all of the other evidence in
the case. Butt's time records do not reflect
any work day exceeding 4.5 hours or any
week exceeding 17 hours. (Pl. Ex. 2.)
In sum, the Court does not credit
plaintiffs' testimony that Seth Feuer was on-
12
work day exceeding 8.5 hours, or any week exceeding
forty hours. (See Pl. Ex. 4.)
The Court also notes that, other than one week of 41
hours, Seth Feuer's own records do not reflect any
6
what plaintiffs were paid. The email from
May 26, 2014, states that plaintiffs were paid
$250 "last week," which the Court
understands to reference that they had been
paid that past weekend for the week of May
12 to May 18. (Pl. Ex. 5, at 150.) The email
from June 4 states that Butt had paid "$250
twice," which the Court understands to
reflect payment for the weeks of May 12 and
May19. 13 (Pl.Ex.5,at147.) Theemailfrom
June 7 states that Butt "only gave $150" to
Seth Feuer for "last week," which the Court
understands to refer to the week of May 26.
(Id. at 145.)
call 24 hours a day, nor that he worked from
10:00 a.m. until 8:00 p.m. each night, and,
instead, finds Butt's testimony to the contrary
to be credible. In fact, plaintiffs' claims are
unsubstantiated even by Seth Feuer's own
records of his time, which the Court finds
unreliable for the reasons stated above.
Accordingly, the Court finds that Butt's
testimony and records are a reliable
accounting of Seth Feuer's hours.
3. Wages
At trial, Susann Feuer testified that
plaintiffs were not paid for "three weeks in
May," after which Butt gave Seth Feuer his
first payment of $250. (Tr. 28, 94.) She
further testified that Butt then attempted to
reduce the weekly payment to $150, but that
she confronted him on June 5, 2014. On that
day, she had him sign a note, discussed infra
and admitted at trial as Plaintiffs' Exhibit 3
(hereafter, "June 5 Note"), committing to pay
Seth Feuer $250 beginning June 6, 2014,
"with pay on 6/12/14 and every Saturday
thereafter." (Tr. 29-31, 75.)
In light of this contemporaneous
documentary evidence and the credible
testimony, the Court does not credit Butt's
testimony that he paid plaintiffs $250 in cash
each week beginning May 5, when Seth
Feuer began work. (Tr. 207.) Accordingly,
the Court concludes that plaintiffs did not
receive any pay for the week of May 5
through 11; that plaintiffs were paid $250 for
the week of May 12 through May 18 and
$250 for the week of May 19 through May
25; that plaintiffs were paid $150 for the
week of May 26 through June 1; and that Seth
Feuer received $250 for the week of June 2
through June 8, and for each week thereafter,
terminating on September 2, for any work
that he performed and any assistance that his
wife gave him.
Seth Feuer testified that he was first paid
at the end of May (Tr. 161), that Butt paid
him a decreased amount in "June, end of
May, beginning of June" (Tr. 137), and that
he was paid $250 a week thereafter. He also
confirmed that the impetus for the June 5
Note was that Butt wanted to "lower the
money from $250 to $150." (Tr. 137.)
C. Susann Feuer
1. Duration of Employment
These issues regarding payment are the
subject of po1tions of Plaintiffs' Exhibit 5,
which contains various emails sent by Susann
Feuer to a third party during the relevant
period. As relevant here, Susann Feuer's
emails provide contemporaneous accounts of
At trial, Susann Feuer testified that she
worked for defendants from May 2, 2014 (Tr.
20) through September 6, 2014 (Tr. 54), for
"122 days straight" (Tr. 33). As noted,
plaintiffs did not submit any documentation
13 Although Seth Feuer testified that he did not receive
any payment during the month of May (Tr. l 36), that
testimony is contradicted by Susann Feuer's
contemporaneous emails (noted above) which discuss
two payments in May for $250 and one for $150 in late
May/early June. In light of all the evidence, the Court
finds his testimony not credible on this issue.
7
never exceeded 40 hours in one week (or 10
hours in one day), and the $250 payment by
Butt each week was sufficient to cover the
combined hours of Seth and Susann Feuer for
purposes of the minimum wage requirements
of the FLSA and the NYLL. 16
of hours kept by Susann Feuer.
At trial, plaintiffs introduced, and Susann
Feuer testified to the veracity of, the June 5
Note, which reads: "Seth Feuer is to be paid
$250.00 weekly beginning 6/6/14 with pay
on 6/12/14 and every Saturday thereafter."
(Pl. Ex. 3.) 14 Susann Feuer testified that she
wrote the text of the document, which Butt
then signed. (Tr. 29-30, 70-71.) When asked
why she did not include payment for herself
in the text of the document, Susann testified
that it was because Seth "was doing the
majority of the work." (Tr. 70, 73.)
2. Hours
With regard to her hours, Susann Feuer
testified that she would confer with Butt at
7:00 a.m. each morning regarding the rooms
to be cleaned that day (Tr. 22), although no
rooms were ever ready to be cleaned at that
time (Tr. 35). She testified that she worked
four hours a day (Tr. 44, 51 ), but that because
of the nature of the tasks, like waiting for
laundry cycles, "I did it 24 hours a day
combined . . . [i]t wasn't just, okay, she
worked from 7 to 11" (Tr. 40). She also
testified that she would often tell Butt when
she had completed rooms or tasks. (Tr. 45.)
The Court does not credit Susann Feuer's
testimony regarding her work hours for
reasons similar to those undermining Seth
Feuer's testimony. In particular, given the
scope of the work that she said she
performed, and which Butt's records
describe, it is not credible that Susann Feuer
worked for four or more hours a day, seven
days a week at an establishment of this size. 17
Plaintiffs
also
have
supplied
no
Butt testified that Susann started
"participating" in Seth Feuer's work on May
15, 2014 (Tr. 199), and did so until Seth
Feuer's employment ended on September 2,
2014 (Tr. 205-06).
Having considered the conflicting
documentation and testimony, the Com1
finds that Susann Feuer did work during the
period of May 15, 2014, to September 2,
2014. In connection with that work, it was
clear to plaintiffs that Seth Feuer was
receiving $250 in cash per week for his work,
as well as for any assistance that Susann
Feuer provided her husband, and that any
remuneration for Susann Feuer would be part
of the $250 given to Seth Feuer. 15 Moreover,
as discussed infra, their combined hours
14
discussion or documentation regarding payment to
Susann Feuer.
Although Butt contests the authenticity of the
document itself, he does not contest its substance namely, that he agreed to pay Seth Feuer $250 per
week for his services. (Tr. 215.)
16
The Court highlights that Susann Feuer did not work
during the week of May 26 when Seth Feuer was paid
$150, instead of$250.
15 The Court notes that there is evidence in the record
that Susann Feuer believed that the potential buyer of
the hotel was going to pay her and Seth $250 each per
week when they first anived at the hotel. There is no
evidence, however, that Butt ever agreed to such
payment for each of them when the purchase of the
hotel fell through and Butt agreed to hire Seth Feuer
for the summer. In fact, the understanding with Butt
was confirmed at the June 5 meeting which related to
Seth Feuer's rate of pay ($250 per week), without any
17
Rosemarie Markus testified that, during her visit,
Susann Feuer would leave the room to work around
6:30 a.m. and return around 9:00 or 9:30 p.m. (Tr.
101.) The Court does not credit the testimony of
Markus in light of the other testimony and evidence
provided, and emphasizes that her estimates far exceed
even Susann Feuer's own account of her work.
8
made clear that payment for any assistance
that Susann Feuer decided to provide to her
husband was included in the $250 in cash
Butt gave to her husband each week.
documentation of her hours. In short, the
Court does not credit Susann Feuer's
testimony regarding her hours and, instead,
finds that Butt's time records are a reliable
accounting of Susann Feuer's time.
III. BURDEN OF PROOF
Plaintiffs bear the burden of proof in this
case on each and every claim, as well as on
the issue of damages. They must prove by a
preponderance of the evidence that
defendants did not adequately compensate
them as required by the FLSA and NYLL.
See Reich v. S. New England Telecomm.
Corp., 121 F.3d 58, 67 (2d Cir. 1997)
("[Plaintiffs] must produce sufficient
evidence to establish that the employees have
in fact performed work for which they were
improperly compensated and produce
sufficient evidence to show the amount and
extent of that work 'as a matter of just and
reasonable inference."' (quoting Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946), superseded by statute, The Portal-toPortal Act)); Flores v. J & B Club House
Tavern, Inc., No. 10-Civ-4332 (GAY), 2012
WL 4891888, at *1 (S.D.N.Y. Oct. 16, 2012)
(discussing NYLL plaintiffs' burden to prove
they performed the work for which they
claim defendant failed to compensate them).
Plaintiffs must also prove the amount of
damages by a preponderance of the evidence.
3. Wages
As noted above, based on the credible
testimony and documentary evidence
produced at trial, the Court concludes that
defendants paid plaintiffs collectively $250
for the weeks of May 12 through 18 and May
19 through 26, and paid $150 for their
combined work the week of May 26 through
June 1. Plaintiffs collectively received $250
each week thereafter until they stopped
working in early September 2014.
As confirmed by the June 5 Note, all
payments made were intended to be
consideration of Seth Feuer's work because it
was understood that Susann Feuer would not
be separately paid by Butt for any voluntary
assistance she gave her husband. Thus, the
$250 was intended to cover all the work
regardless of whether performed solely by
Seth Feuer, or with the help of his wife,
Susann Feuer.
In fact, Susann Feuer
acknowledged during her testimony that,
following the June 5 meeting, she understood
that any payment for her work would be
included in the $250 cash payments each
week to her husband. (See, e.g., Tr. 96 ("I
honestly felt that the $250 was one and a
quarter each, that he was paying for both of
us .... "); Tr. at 97 ("In my reality I thought
he was giving us one and a quarter each a
week and when he knocked us down to 100 I
thought we were getting $75 a week each. I
believed I was getting paid but I was getting
paid half of what we initially agreed upon.").)
Although she testified that she understood
that she was getting half of her husband's
payment, the Court finds that Butt never
agreed to any such arrangement, but rather
IV.
CONCLUSIONS OF LAW
Plaintiffs assert that Seth Feuer has not
been fully compensated for overtime under
the FLSA and NYLL, and that neither
plaintiff was paid in accordance with the
minimum wage requirement. For the reasons
set forth below, the Court finds that plaintiffs
have not proved by a preponderance of the
evidence that defendants have violated the
overtime provisions of the FLSA and NYLL
or spread-of-hours provision of the NYLL,
but that they have proved that defendants are
liable for limited violations of the minimum
wage provisions of the FLSA and NYLL.
9
requirements of the FLSA, but otherwise
"mirrors the FLSA in compensation
provisions regarding minimum hourly wages
and overtime." Ethe/berth v. Choice Sec.
Co., 91 F. Supp. 3d 339, 359-60 (E.D.N.Y.
2015) (quoting Santillan v. Henao, 822 F.
Supp. 2d 284, 292 (E.D.N.Y. 2011)). That
plaintiffs were not exempt from the overtime
requirements of either statute is not in
dispute.
A. Unpaid Wages Claims
Under the FLSA, employers engaged in
interstate commerce must pay ove1iime
compensation to an employee working more
than forty hours per week at one and one-half
times his or her hourly rate or applicable
mm1mum wage. 29 U.S.C. § 207(a)(l).
NYLL has a parallel requirement. N.Y.
Comp. Codes R. & Regs. tit. 12, § 146-1.4.
The regular, minimum rates at which
employees must be paid are established by
Section 6 of the FLSA, 29 U.S.C. §
206(a)(l)(C), and Section 652(1) of the
NYLL. During the relevant period, the
federal minimum wage was $7 .25 per hour;
the New York state minimum wage was
$8.00 per hour. 29 U.S.C. § 206(a)(l)(C);
N.Y. Lab. Law§ 652(1).
Plaintiffs allege that Seth Feuer worked
over ten hours a day, seven days a week, and
was on-call 24 hours a day, seven days a
week, throughout the duration of his
employment with defendants, and that he was
not compensated for overtime work, or for
extra compensation required where his
spread of hours exceeded ten. Plaintiffs also
allege that Seth Feuer and Susann Feuer were
not paid the minimum wage as required by
federal and New York state law.
In addition, the FLSA sets forth a broad
civil enforcement scheme, pursuant to which:
Although a plaintiff generally "has the
burden of proving that he performed work for
which he was not properly compensated,"
when an employer has "inaccurate or
inadequate" records, the plaintiff"has carried
out his burden if he proves that he has in fact
performed work for which he was improperly
compensated and if he produces sufficient
evidence to show the amount and extent of
that work as a matter of just and reasonable
inference." Mt. Clemens, 328 U.S. at 687.
Sufficient evidence may be established by
"recollection alone." Dao Nam Yang v.
ACBL Corp., 427 F. Supp. 2d 327, 335
(S.D.N.Y. 2005); see also Kuebel v. Black &
Decker Inc., 643 F.3d 352,362 (2d Cir. 2011)
("It is well settled among the district comis of
this Circuit, and we agree, that it is possible
for a plaintiff to meet this burden through
estimates based on his own recollection,").
"The burden then shifts to the employer to
come forward with evidence of the precise
amount of work performed or with evidence
to negative the reasonableness of the
[a]ny employer who violates
the provisions of section 206
or section 207 of this title
shall be liable to the employee
or employees affected in the
amount of their unpaid
minimum
wages,
or
their
unpaid
overtime
compensation, as the case
may be, and in an additional
equal amount as liquidated
damages.
29 U.S.C. § 216(b). In an action to recover
unpaid overtime wages under the FLSA, a
plaintiff must show that: "(l) he was an
employee who was eligible for overtime
([i.e.,] not exempt from the Act's overtime
pay requirements); and (2) that he actually
worked overtime hours for which he was not
Hosking v. New World
compensated."
Mortg., Inc., 602 F. Supp. 2d 441, 447
(E.D.N.Y. 2009). The NYLL scheme lacks
the interstate commerce and minimum sales
10
employment when defendants failed to pay
him in compliance with the then-applicable
New York state and federal minimum wage
rate, see 29 C.F.R. §§ 778.5, 778.315; N.Y.
Lab. Law § 652(1 ); and (3) that defendants
are, therefore, liable for the difference
between the amount that the employee was
paid and the amount that the employee would
have earned if he had received hourly pay at
the applicable minimum wage. See, e.g.,
Rodriguez v. Queens Convenience Deli
Corp., No. 09-CV-1089 KAM SMG, 2011
WL 4962397, at *2 (E.D.N.Y. Oct. 18,
2011); Cao v. Chandara Corp., No. 00 Civ.
8057(SAS), 2001 WL 34366628, at *6
(S.D.N.Y. July 25, 2001).
inference to be drawn from the employee's
evidence." Mt. Clemens, 328 U.S. at 687-88.
Although, as discussed supra, plaintiffs
presented testimony and evidence in support
of their overtime and minimum wage
allegations, the Court concludes that Butt
credibly presented accurate records to rebut
plaintiffs' overtime claims and minimum
wage claims, with the exception of the week
of May 5, 2014, for which Seth Feuer was not
paid. The Court does not credit the testimony
of plaintiffs' witnesses, including plaintiffs,
or plaintiffs' documentary evidence with
regard to hours worked. Plaintiffs have met
their burden only with regard to the one week
during which Seth Feuer was not paid. As
noted supra, Susann Feuer did not work that
week.
B. Spread-of-Hours Claim
Under New York state law, employees in
"all-year hotels" who work a "spread of
hours" in excess of ten hours - defined as
"the length of the interval between the
beginning and end of an employee's
workday" - are entitled to an additional
hour's worth of pay at the minimum wage.
N.Y. Comp. Codes R. & Regs. tit. 12, § 1461.6.
Because, based on a review of
defendants' credible time records, the Court
does not find evidence in the record to
establish that Seth Feuer had any workday
spanning more than ten hours during his
employment with defendants, plaintiffs are
not entitled to recover under this provision. 19
In sum, notwithstanding Butt's credible
testimony and time records that undermine
the testimony of plaintiffs' witnesses and
time records, the Court finds that defendants
have violated the minimum wage provisions
as to Seth Feuer for the first week of his
employment.
29 U.S.C. §§ 206, 207,
215(a)(2); N.Y. Lab. Law§ 160, 652(1). The
Court bases this conclusion upon the records
of
payment
found
in
plaintiffs
contemporaneous emails and corroborated by
plaintiffs' testimony on this point.
Specifically, the Court finds the following:
(I) during the relevant time period,
defendants did not violate the overtime
provisions of the FLSA or its NYLL
counterpart because, although defendants
paid a fixed weekly salary, plaintiffs' hours
never exceeded 40 hours per week; 18
(2) during the relevant time period,
defendants violated the minimum wage
provision of the FLSA and its NYLL
counterpart for the first week of Seth Feuer's
C. Recordkeeping Claims
As noted above, the Court previously
adopted the Report and Recommendation of
Magistrate Judge Locke, finding that
defendants are liable for violations of NYLL
§ 195(3) and 195(1). Accordingly, plaintiffs
19
Moreover, even if Susann Feuer's hours are
considered along with her husband's hours, their
combined hours do not exceed ten hours on any
individual day.
18
The Court underscores that even the combined hours
of Susann and Seth Feuer never exceeded forty hours
in a pa1ticular week.
11
federal one, 29 U.S.C. § 218(a), as is the case
here, the Court calculates plaintiffs' damages
using the state minimum wage and grants
recovery under NYLL.
are entitled to statutory damages for
violations of these sections as detailed below.
D. Damages
The Court does not find the damage
calculations by plaintiffs to be a reasonable
estimate of the amount due to plaintiffs based
upon the evidence in the record, and finds
that plaintiffs have not met their burden of
proof on this issue. Once a plaintiff has
proven a prima facie case, "the burden shifts
to the employer ... to produce evidence of
the 'precise amount of work performed' or
evidence to 'negative the reasonableness of
the inference to be drawn from the
employee's evidence."' Reich, 121 F.3d at
67 (quoting Mt. Clemens, 328 U.S. at 68788). In particular, plaintiffs did not establish
a prima facie case, and in any event,
defendants presented credible evidence of the
hours that plaintiffs worked, thus enabling
the Court to calculate the unpaid wages owed
to plaintiff Seth Feuer for the week during
which the Comt has found that he was not
paid - namely, his first week of employment.
Crediting defendants' contemporaneous
records of plaintiffs' hours, the Court finds
that Seth Feuer is entitled to $92 for work
performed during the week of May 5 through
11, 2014, as calculated by multiplying the
hours he worked (11.5) by the applicable
$8.00 minimum wage in New York state. 20
A review of Butt's time records and wages
paid for all other weeks reflect that plaintiffs
(even when Seth and Susann Feuer's hours
are combined) were paid at a rate above the
minimum wage for their hours during each
pmticular week. 21
Plaintiffs seek (1) for Seth Feuer,
$33,143.03 in unpaid minimum wage and
overtime compensation, $1,040 in unpaid
spread-of-hours compensation, $34,183.03 in
liquidated damages, and $2,700 in statutory
damages under NYLL § 195; and (2) for
Susann Feuer, $2,596.88 in unpaid minimum
wages, $2,596.88 in liquidated damages, and
$2,700 in statutory damages under NYLL
§ 195. Plaintiffs also request pre-judgment
interest under NYLL dating from July 5,
2014 through the date of judgment, as well as
post-judgment interest on the award amount.
1. Backpay
Plaintiffs seek $33,143.03 for Seth Feuer,
and $2,596.88 for Susann Feuer in unpaid
wages for violations of the minimum wage
and overtime provisions of the FLSA and
NYLL. 29 U.S.C. § 216(b); N.Y. Lab. Law
§§ 160, 652(1). (See Pis.' Prop. Findings,
ECF No. 87, at 1.) Although plaintiffs may
be entitled to recover under both statutes,
they may not "double recover" for violations
of both statutes. Pinzon v. Paul Lent Mech.
Sys., Inc., No. CV l 1-3384(DRH)(WDW),
2012 WL 4174725, at *2 (E.D.N.Y. Aug. 21,
2012), report and recommendation adopted,
2012 WL 417410 (E.D.N.Y. Sept. 19, 2012);
Jin M Cao v. Wu Liang Ye Lexington Rest.,
Inc., No. 08 Civ. 3725(DC), 2010 WL
4159391, *3 (S.D.N.Y. Sept. 30, 2010).
Because Butt's liability is coextensive under
both statutes in light of the findings above,
and state minimum wage laws are not
preempted by the federal minimum wage
where the state minimum wage exceeds the
2. Liquidated Damages
Under the FLSA and NYLL, employers
who violate the law are liable not only for
21
20
As stated supra, Susann Feuer did not begin
working for defendants until May 15, 2014.
The Court reached this conclusion by dividing the
compensation plaintiffs received by the number of
hours worked in a week for each week of work.
12
that defendants' actions were not in good
faith, and that they had no reasonable
grounds for so acting. Accordingly, the
Court finds that plaintiff Seth Feuer is
entitled to a judgment in the amount of $92 in
liquidated damages under NYLL.
unpaid wages but for "an additional equal
amount as liquidated damages." 29 U.S.C.
§ 216(c); NYLL §§ 198, 663. The Portal-toPmial Act modified the FLSA by allowing
courts, in their discretion, to reduce the
amount awarded in liquidated damages or to
eliminate them entirely if an employer proves
that its actions were "in good faith and that
[it] had reasonable grounds for believing that
[its] act or omission was not a violation" of
the FLSA. 29 U.S.C. § 260. "[T]he employer
bears the burden of establishing, by 'plain
and substantial evidence,' subjective good
faith and objective reasonableness." Reich,
121 F.3d at 71 (quoting Martin v. Cooper
Elec. Supply Co., 940 F.2d 896, 907 (3d Cir.
1991)). "The burden ... is a difficult one to
meet, however, and double damages are the
norm, single damages the exception." Id
(alteration, citation, and internal quotation
marks omitted). Liquidated damages in the
amount of actual damages are likewise
available under NYLL §§ 198(1-a) and
663(1), "unless the employer proves a good
faith basis to believe that its underpayment of
wages was in compliance with the law." As
with coextensive compensatory damages,
plaintiffs may only recover liquidated
damages under one statute. See Chowdhury
v. Hamza Express Food Corp., 666 F. App'x
59, 61 (2d Cir. 2016).
3. Statutory Damages
Pursuant to the version ofNYLL § 195(3)
that was effective at the time of plaintiffs'
employment, plaintiffs are entitled to
$100.00 dollars for each work week during
which an employer fails to provide wage
statements meeting statutory requirements,
up to a maximum of $2,500.00. N.Y. Lab.
Law § 198(1-d). Likewise, pursuant to
NYLL § 195(1 ), plaintiffs are entitled to
$50.00 for each work week during which an
employer fails to provide the wage notices
that the NYLL requires be provided at the
time of hiring, up to a maximum of
$2,500.00. N.Y. Lab. Law§ 198(1-b).
In adopting Magistrate Judge Locke's
Report and Recommendation upon summary
judgment, the Court found that plaintiffs had
met their bUl'den in proving that defendants
are liable for failing to provide wage notices
and wage statements as required under
NYLL § 195(1) and 195(3). Accordingly,
multiplying Seth Feuer's duration of
employment of eighteen weeks by $100.00
for violation of§ 195(3), the Court finds that
Seth Feuer is entitled to $1,800 under that
provision. Multiplying his eighteen weeks of
employment by $50.00 for violation of
§ 195(1 ), the Court concludes that Seth Feuer
is entitled to $900.00, for a combined total of
$2,700.00 in statutory damages for the
eighteen weeks that he worked for
defendants.
In adopting Magistrate Judge Locke's
Report and Recommendation upon summary
judgment, the Court found that plaintiffs had
met their burden in proving that defendants'
actions were willful. Butt acknowledged in
his deposition and at trial that he had worked
in the hotel industry for many years and held
supervisory roles for over two decades, yet
failed to seek any advice regarding
compensation practices, and demonstrated
recklessness by paying plaintiffs in cash,
rather than through more proper and
traceable means, like checks. (See ECF No.
76, at 32-33.) Therefore, the Comi concludes
With respect to Susann Feuer, the Court
reiterates that she did not work during her
husband's first week of employment (May 5,
2014) or his last week of employment
13
any unpaid minimum wages, and they failed
to prove that either plaintiff is entitled to
spread-of-hours
pay
or
overtime
compensation. Accordingly, plaintiffs are
entitled to pre-judgment interest on Seth
Feuer's award of$0.02 daily between July 4,
2014, 22 until the day that judgment is entered.
This amount was calculated by multiplying
Seth's unpaid wages by nine percent, and
dividing that figure by 365 days. See, e.g.,
Rosales
v.
Low
Bid,
Inc.,
No.
17CV3183ADSSIL, 2018 WL 3468710, at
*IO n.2 (E.D.N.Y. July 3, 2018), report and
recommendation
adopted,
No.
217CV03 l 83ADSSIL, 2018 WL 3468697
(E.D.N.Y. July 18, 2018); Pimental v.
Memories Pub Inc., No. CV 16-51
(JFB)(ARL), 2018 WL 1973174, at *3
(E.D.N.Y. Feb. 20, 2018), report and
recommendation adopted sub nom. Pimentel
v. Memories Pub Inc., No. 16-CV005l(JFB)(ARL), 2018 WL 1970742
(E.D.N.Y. Apr. 25, 2018).
(September 2, 2014), nor did she work the
week of May 26, 2014.
Accordingly,
performing the same calculations for Susann
Feuer, the Court concludes that Susann Feuer
is entitled to $1,500.00 under§ 195(3) for the
fifteen weeks that she performed work.
These fifteen weeks account for the fact that
she did not work the week of May 26, 2014,
and thus there was no need for Butt to provide
her a wage statement that week. With respect
to§ 195(1), the Court finds that Susann Feuer
is entitled to $800.00 for defendants'
continued failure to provide a wage notice for
the sixteen weeks that she was in their
employ, for a combined total $2,300.00 in
statutory damages.
4. Pre-Judgment Interest
NYLL provides for the award of prejudgment interest to prevailing plaintiffs
under§ 198(1-a). The applicable interest rate
is 9% per annum, calculated "from the date
[each item] was incurred or upon all of the
damages from a single reasonable
intermediate date."
N.Y. C.P.L.R.
§§ 5001(b), 5004. Plaintiffs are "entitled to
an award of prejudgment interest only on
unpaid wages and spread of hours pay for
which liquidated damages pursuant to the
FLSA were not assessed." Santillan, 822 F.
Supp. 2d at 298. In addition, "[p]rejudgment
interest is not available for violations of the
wage statement or wage notice provisions."
Gamero v. Koodo Sushi Corp., 272 F. Supp.
3d 481, 515 (S.D.N.Y. 2017), aff'd, 752 F.
App'x 33 (2d Cir. 2018); Salustio v. I 06
Columbia Deli Corp., 264 F. Supp. 3d 540,
557 (S.D.N.Y. 2017).
5. Post-Judgment Interest
Plaintiffs are entitled to post-judgment
interest "from the date of the entry of the
judgment, at a rate equal to the weekly
average I-year constant maturity Treasury
yield, as published by the Board of
Governors of the Federal Reserve System, for
the calendar week preceding[ ] the date of the
judgment." 28
U.S.C.
§ 196l(a).
Accordingly, the Court concludes that
plaintiffs be awarded post-judgment interest
on its monetary award, to be calculated
pursuant to 28 U.S.C. § 1961(a).
V. CONCLUSION
As explained above, plaintiffs have
demonstrated that Seth Feuer is owed $92 in
unpaid wages. By contrast, plaintiffs have
not demonstrated that Susann Feuer is owed
For the foregoing reasons, the Court
concludes, after carefully considering the
evidence introduced at trial, the arguments of
22
Calculated as halfway between May 5 and
September 2, 2014.
14
SO ORDERED.
counsel, and the controlling law on the issues
presented, that plaintiffs have not
demonstrated the overtime or spread-of
hours violations by a preponderance of the
evidence. However, the Court finds that Butt
is liable for the limited minimum wage
violations and for the wage statement and
wage notice violations discussed herein. The
Court hereby enters judgment against
defendant Butt in the amount of $2,884 to
Seth Feuer consisting of: (1) $92 in unpaid
wages for violation of the minimum wage
provisions of the FLSA and NYLL (for the
week of May 5 to May 11, 2014, for which
he was not paid); (2) $92 in liquidated
damages relating to Seth Feuer; and (3)
$2,700 in statutory damages relating to Seth
Feuer in connection with his eighteen weeks
of employment for violation of the wage
statements and notice provisions under
NYLL. The Court also enters judgment
against defendant Butt in the amount of
$2,300 in statutory damages relating to
Susann Feuer in connection with her sixteen
weeks of employment for violation of the
wage statements and notice provisions under
NYLL. 23 The Court thus finds Butt liable for
a total of$5,184.00.
S/ JOSEPH F. BIANCO
________
JO���H F. BIAJ
Ur/iied States Circuit Judge
(sitting by designation)
CQ,_
Dated: January 24, 2020
Central Islip, NY
***
Plaintiffs are represented by Dong
Phuong V. Nguyen, Borrelli & Associates,
P.L.L.C., 1010 Northern Boulevard, Suite
328, Great Neck, NY 11021.
Defendant Naeem Butt proceeds pro se,
52 Longview Road, Southampton, NY
11968. Defendant Cornerstone Hotels Corp.
is unrepresented.
Added to this amount shall be pre- and
post-judgment interest to be calculated as
stated above. The Clerk of the Comi shall
enter judgment accordingly.24
To the extent that plaintiffs seek any declaratory or
injunctive relief, the Court concludes there is no basis
for such relief under the facts of this case.
23
24
Because defendant Cornerstone Hotels Corporation
is unrepresented, the judgment does not apply to it.
However, plaintiffs may move for a default judgment
against the corporation if they wish to pursue the
claims against it.
15
I
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