Barbato et al v. Knightsbridge Properties

Filing 64

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION - The Court finds Judge Locke's Report and Recommendation to be thorough and well-reasoned. For the foregoing reasons, Defendant's objections are OVERRULED, and the R&R is ADOPTED in it s entirety. Plaintiffs' motion for summary judgment (Docket Entry 54) is GRANTED IN PART and DENIED IN PART, and Defendant's motion for summary judgment (Docket Entry 53) is DENIED. Defendant's motion to dismiss Barbato's claims i s also DENIED, and Defendant's motion to decertify the conditional class is GRANTED. The parties shall file letters within fourteen (14) days of the date of this Memorandum and Order setting forth their respective positions on scheduling a settlement conference with Judge Locke. If the parties are unable to resolve this matter, a damages trial will proceed promptly. See Order for additional details. So Ordered by Judge Joanna Seybert on 9/20/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
LOUIS BARBATO and FRANCISCO RODRIGUEZ,
on behalf of themselves and all other
persons similarly situated,
Plaintiffs,

MEMORANDUM & ORDER
14-CV-7043(JS)(SIL)

-against–
KNIGHTSBRIDGE PROPERTIES,

Defendant.
-------------------------------------X
APPEARANCES
For Plaintiffs:
Alexander Granovsky, Esq.
Ben Kraus, Esq.
Neeti Sundaresh, Esq.
Granovsky and Sundaresh PLLC
48 Wall Street, 11th Floor
New York, NY 10005
For Defendant:

John F. Geida, Esq.
John F. Geida
36 Main Street
Port Washington, NY 11050

SEYBERT, District Judge:
Plaintiffs

Louis

Barbato

(“Barbato”)

and

Francisco

Rodriguez (“Rodriguez” and collectively “Plaintiffs”) commenced
this action against their former employer Knightsbridge Properties
(“Defendant” or “Knightsbridge”) on December 5, 2014.
Docket Entry 1.)

(Compl.,

Plaintiffs allege that Defendant violated the

Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
(Compl. ¶¶ 1-3.)

Currently pending before the Court is Magistrate

Judge Steven I. Locke’s Report and Recommendation dated August 7,
2017 (the “R&R”, Docket Entry 61) with respect to the parties’

cross-motions for summary judgment (Docket Entries 53, 54).

In

its summary judgment motion, Defendant also moved to decertify the
conditional class and to dismiss Barbato’s claims based on a
rejected Rule 68 offer of judgment.
1, at 4.)

(Def.’s Br., Docket Entry 53-

Judge Locke recommends that (1) Plaintiffs’ motion for

summary judgment be granted in part and denied in part, (2)
Defendant’s motion for summary judgment be denied, (3) Defendant’s
motion to decertify be granted, and (4) Defendant’s motion to
dismiss be denied.

(R&R at 2.)

Defendant filed objections to the

R&R, and Plaintiffs responded to the objections.
Docket Entry 62; Pls.’ Resp., Docket Entry 63.)

(Def.’s Obj.,

For the following

reasons, Defendant’s objections are OVERRULED, and the R&R is
ADOPTED in its entirety.

Plaintiffs’ motion for summary judgment

is GRANTED IN PART and DENIED IN PART, and Defendant’s motion for
summary

judgment

Barbato’s

claims

is

DENIED.

is

also

Defendant’s

DENIED,

and

motion

to

Defendant’s

dismiss

motion

to

decertify the conditional class is GRANTED.
BACKGROUND
I.

Relevant Facts
The Court assumes familiarity with the relevant facts,

which are set forth in detail in Judge Locke’s R&R.

Briefly,

Plaintiffs were employed as superintendents at one of Defendant’s
properties in Manhasset, New York.

(R&R at 3.)

Barbato worked at

Defendant’s Manhasset property from 2011 to 2014, and Rodriguez
2

worked there from 2005 to 2014.

(R&R at 3.)

Both Plaintiffs claim

that they regularly worked in excess of forty hours per week but
that Defendant failed to compensate them for those hours in
accordance with the FLSA and NYLL.
dispute

regarding

whether

(R&R at 3.)

Defendant

There is some

classified

building

superintendents, including Plaintiffs, as exempt from the FLSA’s
overtime provisions.
superintendents

(Compare R&R at 4 (“According to Plaintiffs,

working

at

Knightsbridge

during

the

relevant

period were classified as exempt employees under the FLSA.”) with
R&R at 5 (“According to Knightsbridge, Plaintiffs were classified
as

non-exempt

employees.”).)

Barbato

testified

that

he

was

instructed not to enter all of his hours onto his time sheets.
(R&R

at

3-4.)

Rodriguez

alleges

that

his

time

sheets

were

completed for him and that he was required to sign them at the
beginning of each week. (R&R at 4.)
Defendant admits that Barbato’s time sheets reflect that
he worked approximately 61.5 hours of uncompensated overtime, but
disputes that he is entitled to compensation for any additional
hours not documented in his time sheets.

(R&R at 6.)

Defendant

contends that Rodriguez was already compensated for overtime hours
because he agreed to “a salary that incorporates a regular rate of
pay for the first 40 hours of work per week and an overtime rate
of pay for the 20 hours thereafter” when he was hired in 2005.
(R&R at 5.)

In other words, Defendant maintains that Rodriguez’s
3

rate of $19.68 per hour was comprised of a lower rate for the first
forty hours he worked per week and a higher rate for overtime
hours.
II.

(R&R at 5.)

Procedural History
As stated, Plaintiffs filed the Complaint on December 5,

2014 on behalf of themselves and similarly situated employees and
former employees of Defendant.

(Compl. ¶ 1.)

the Complaint on February 3, 2015.
On

July

17,

2015,

Defendant answered

(Answer, Docket Entry 8.)

Plaintiffs

filed

a

motion

to

conditionally certify the matter as a collective action under the
FLSA. (Mot. to Certify, Docket Entry 21.) The motion was referred
to Judge Locke, who granted it on October 8, 2015.

(2015 Referral

Order, Docket Entry 22; Mot. to Certify Order, Docket Entry 32.)
Defendants

were

ordered

to

provide

contact

information

for

potential class members, and Plaintiff was directed to circulate
a Proposed Notice and Consent to Join.
13-14.)

(Mot. to Certify Order at

Since that time, no additional plaintiffs have joined the

collective action.
On
judgment.
54.)

June

13,

2016,

both

parties

moved

for

summary

(Pls.’ Mot., Docket Entry 53; Def.’s Mot., Docket Entry

Opposition briefs were filed on on July 12, 2016 and reply

briefs followed on July 26, 2016.

(Pls.’ Opp., Docket Entry 55;

Def.’s Opp., Docket Entry 56; Pls.’ Reply, Docket Entry 57; Def.’s
Reply, Docket Entry 58.)

As part of its motion, Defendant also
4

moved to dismiss Barbato’s claims and to decertify the conditional
class.

(Def.’s Br. at 4.)

On April 7, 2017, the undersigned

referred the motions to Judge Locke for a report and recommendation
regarding whether the motions should be granted, and if necessary,
to determine the amount of damages, costs or fees to be awarded.
(SJ Referral Order, Docket Entry 60.)
Locke issued his R&R.

On August 7, 2017, Judge

Defendant filed objections to the R&R on

August 21, 2017, and Plaintiffs responded to the objections on
August 25, 2017.
III.

(See Def.’s Obj.; Pls.’ Resp. 63.)

The R&R
At the outset, Judge Locke addressed Defendant’s motion

to decertify the conditional class.

(R&R at 10.)

He determined

that because no additional plaintiffs have joined this collective
action, the motion to decertify should be granted.

(R&R at 10.)

Next, Judge Locke considered the parties’ motions for
summary judgment.1

He began by analyzing whether the FLSA and NYLL

applied to Plaintiffs’ claims.

He determined that, under the FLSA

and NYLL, Plaintiffs qualified as employees, Defendant qualified
as a covered employer, and Plaintiffs held non-exempt positions
while employed by Defendant.

(R&R at 10-14.)

As such, he

Before beginning his analysis, Judge Locke held that to the
extent that affidavits submitted by two employees of Defendant,
Jordan Krauss and Rosemary Higuera, contradict their deposition
testimony, their affidavits would not be considered. (R&R at 910.)
1

5

concluded that Plaintiffs were “entitled to overtime for hours
worked over 40 in a given week” under both the FLSA and NYLL.
at 13.)

(R&R

Additionally, he considered the applicable statute of

limitations under both statutes.

Because he found Defendant’s

FLSA violations to be willful, Judge Locke recommended that the
Court set the statute of limitations at three years instead of two
years.

(R&R at 15.)

To support this finding, he points to

Defendant’s concession that Plaintiffs were non-exempt employees,
and the affidavit of Rana Dunn (“Dunn”), the former Vice President
of

Human

Resources

at

Knightsbridge,

who

stated

that

she

“repeatedly advised that Defendant was violating the FLSA, but
Knightsbridge

failed

to

act.”

(R&R

at

16.)

Moreover,

he

determined that the evidence submitted by Defendant, including an
email

from

Dunn

to

Chief

Executive

Officer

Jordan

Krauss

(“Krauss”), failed to establish any issues of fact as to whether
Knightsbridge’s violations were willful.

(R&R at 16.)

The three-

year statute of limitations recommended by Judge Locke for FLSA
violations runs back to December 5, 2011.2

(R&R at 17.)

Under

NYLL’s six-year statute of limitations, Judge Locke determined
that

“all

of

Barbato’s

claims

are

timely,

and

Rodriguez’s

Because Judge Locke recommended a three-year statute of
limitations, and this matter was commenced in December 2014, the
Court assumes that his reference to a limitations period of
April 30, 2012 to April 13, 2015 was an inadvertent error.
2

6

actionable period for overtime compensation runs back to December
5, 2008.”

(R&R at 17.)
As for Barbato’s claims, Judge Locke points out that

Defendant conceded in its brief that “Barbato was not paid, and is
owed, overtime.”

(R&R at 17-18.)

Accordingly, Judge Locke found

that liability as to Barbato’s claims had been established.

(R&R

at 18.)
With

regard

to

Rodriguez’s

claims,

Judge

Locke

considered Defendant’s argument that Rodriguez agreed that his
salary would include overtime pay.

(R&R at 18.)

First, he

determined that because Rodriguez’s pay stubs reflected that his
rate of pay was based on forty hours of work per week, “the burden
falls on Knightsbridge to proffer an express employer-employee
agreement that Rodriguez’s weekly salary covers a greater number
of hours.”

(R&R at 20.)

Second, he reviewed two business records

which, according to Defendant, demonstrated the existence of an
express employer-employee agreement.

(R&R at 20.)

He found that

a handwritten note authored by Gretchen Beach3 (“Beach”) containing
a series of mathematical calculations (the “Beach Note”) was
admissible as a business record, but was not a valid employeremployee agreement.

(R&R at 21-22.)

Specifically, he found that

the “note fail[ed] to document that Rodriguez understood that his

Beach was a former property manager at Knightsbridge.
21.)
3

7

(R&R at

weekly salary . . . include[d] pay for overtime hours.”
22.)

Additionally,

authored

by

Frank

Judge
Mollo

Locke

concluded

(“Mollo”),

a

that

former

a

(R&R at

memorandum

comptroller

at

Knightsbridge, which stated, inter alia, that Rodriguez was to be
paid $9.25 for the first forty hours of work and $13.88 for an
additional twenty six hours of work effective January 9, 2005 (the
“Mollo Memo”), was inadmissible because Defendant had failed to
establish that the memorandum was “‘kept in the course of a
regularly conducted business activity’ and also that it was the
regular practice of that business activity to make the memorandum.”
(R&R at 23.)

Even assuming that the memorandum was admissible,

Judge Locke determined that the memorandum failed to demonstrate
that Rodriguez agreed that his rate of pay would include overtime
pay.

(R&R at 23.)

Third, Judge Locke rejected Defendant’s

argument that it should infer an employer-employee agreement based
on the parties’ course of conduct.

(R&R at 23-24.)

Thus, Judge

Locke concluded that “Rodriguez is entitled to unpaid overtime
compensation for his work above 40 hours in a given week as a
matter of law.” (R&R at 24.)
Judge Locke also considered whether Defendant was liable
for failing to provide the required wage and hour notices under
NYLL.

(R&R at 24.)

Based on Defendant’s admission that it never

provided such notices, Judge Locke recommended that the Court grant
summary judgment in favor of Plaintiffs in the amount of $5,000 to
8

each Plaintiff for violations of NYLL Sections 195(1)(a) and
195(3).

(R&R at 26.)
Next,

Judge

Locke

addressed

Defendant’s

dismiss Barbato’s claims on mootness grounds.
Defendant

argued

that

Barbato’s

claims

Defendant’s Rule 68 Offer of Judgment.

were

motion

to

(R&R at 26.)
moot

(R&R at 26.)

based

on

However,

Judge Locke found that Barbato’s claims were not moot because he
rejected Defendant’s Rule 68 offer.

(R&R at 27.)

As a result,

Judge Locke recommended that the motion to dismiss be denied. (R&R
at 27.)
Finally, having found liability in Plaintiffs’ favor,
Judge Locke discussed the appropriate damages award.
31.)

(R&R at 28-

Judge Locke found that, due to the conflicting accounts of

the number of hours worked, there were issues of material fact as
to the proper damages awards for both Plaintiffs and that a trial
on damages was necessary.

(R&R at 28-30.)

He recommended that

the related issues of liquidated damages and prejudgment interest
be addressed at the appropriate time and that Plaintiffs be given
leave to submit a separate motion for attorneys’ fees and costs
after the trial on damages.

(R&R at 31.)

To summarize, Judge Locke recommended that Plaintiffs’
motion be granted and that the Court “(i) [use] a three year
statute of limitations under the FLSA due to Knightsbridge’s
willful failure to pay overtime compensation; (ii) [award] unpaid
9

overtime compensation pursuant to the FLSA and NYLL;

. . . (iii)

[award] $5,000 in damages each to both Rodriguez and Barbato due
to Knightbridge’s failure to provide wage statements and notices
pursuant to NYLL; and (iv) [award] attorneys’ fees under the FLSA
and NYLL.”

(R&R at 32.)
DISCUSSION

I.

Legal Standard
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).

A party may serve and file

specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of being served with the
recommended disposition.
receiving

any

timely

See FED. R. CIV. P. 72(b)(2).

objections

to

the

magistrate

Upon
judge’s

recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”
P. 72(b)(3).
must

point

28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV.

A party that objects to a report and recommendation
out

the

specific

portions

recommendation to which they are objecting.

of

the

report

See Barratt v. Joie,

No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002).

10

and

When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.

See Pizarro v. Bartlett, 776 F. Supp.

815, 817 (S.D.N.Y. 1991).
conclusory
original

or

general

arguments,

However, where a party “makes only

objections,
the

Court

or

simply

reviews

Recommendation only for clear error.”

reiterates

the

Report

his
and

Walker, 216 F. Supp. 2d at

291 (internal quotation marks and citation omitted).
II.

Defendant’s Objections
A.

The Existence of an Employer-Employee Agreement Between
Defendant and Rodriguez
Defendant’s principal objection is that Judge Locke

improperly resolved the factual disputes surrounding the purported
agreement
favor.

between

Knightsbridge

(Def.’s Obj. at 3-4.)

and

Rodriguez

in

Rodriguez’s

Defendant argues that the documents

and testimony create an issue of fact as to whether Rodriguez
agreed that his rate of pay would include overtime pay, and as a
result, a jury should decide this issue.

(Def.’s Obj. at 4.)

Defendant maintains that it never argued that the Beach Note and
the Mollo Memo were express employer-employee agreements, but
rather, it argued that these documents were evidence of the
underlying dispute.

(Def.’s Obj. at 4.)

While discussing the

Beach Note, Defendant contends that while Beach does not recall
discussing overtime pay with Rodriguez, it was her “practice to

11

inform individuals of their regular and overtime rates of pay” and
“the name ‘Francisco’ appears at the top of the document.” (Def.’s
Obj. at 5.)

Defendant argues that pursuant to this arrangement,

Rodriguez was compensated for his overtime hours.
5.)

(Def.’s Obj. at

Defendant further argues that the Mollo Memo, combined with

Rodriguez’s testimony, “indicates [Rodriguez’s] knowledge of his
hourly rates.” (Def.’s Obj. at 6.) Defendant disagrees with Judge
Locke’s determination that the Mollo Memo is inadmissible but
simultaneously argues that even without this memo, it has presented
sufficient evidence to defeat summary judgment for Rodriguez.
(Def.’s Obj. at 7.)

According to Defendant, the purpose of

submitting the Mollo Memo was not to show that Rodriguez understood
and agreed to incorporate his overtime pay into his annual salary,
but to contradict Rodriguez’s contention that he was never informed
of the two rates of pay.

(Def.’s Obj. at 7.)

Defendant ultimately

admits that “[t]here is no signed employment agreement between
Knightsbridge and Mr. Rodriguez,” but asserts that “the facts
support the argument that there was an agreement as articulated in
the Beach business record.”

(Def.’s Obj. [t]here is no reason to

accept Ms. Dunn’s affidavit over the testimony of Ms. Beach, Mr.
Krauss, and the business records, all of which contradict the
affidavit of Ms. Dunn.”

(Def.’s Obj. at 8.)

Finally, Defendant

argues that the fact that Rodriguez testified that he was never
informed of the two rates of pay--one for the first forty hours of
12

work and a higher rate for the additional hours--should be given
little weight, because “[w]ith all due respect to Mr. Rodriguez
. . . the answers given by [him] are easy for him to utter” and
“[m]emory fades.”

(Def.’s Obj. at 8.)

Plaintiffs counter that Judge Locke already considered
these

arguments

because

Defendant

made

similar

support of their motion for summary judgment.

arguments

in

(Pls.’ Resp. at 4.)

They argue that Judge Locke correctly found that Defendant failed
to submit a valid employer-employee agreement because there is no
evidence to suggest that Rodriguez agreed to incorporate overtime
pay into his salary.

(Pls.’ Resp. at 3.)

Plaintiffs contend that

Judge Locke’s conclusions regarding the Beach Note and the Mollo
Memo are sound because neither document establishes that Rodriguez
discussed the arrangement with anyone at Knightsbridge or agreed
to it.

(Pls.’ Resp. at 4.)

Moreover, Plaintiffs contend that

Defendant’s assertion that the “‘testimony of several witnesses’
create an issue of fact regarding whether Rodriguez was told about
his regular and overtime rates of pay in 2005” is unsupported by
any citations to the record or relevant testimony.
at 5.)

(Pls.’ Resp.

Plaintiffs also note that even if Rodriguez was told about

the two rates of pay when he was hired in 2005, it is irrelevant
because his claim is limited to overtime pay from 2008 to 2014
under NYLL.

(Pls.’ Resp. at 5.)

13

As a result, Plaintiffs argue,

Defendant

has

failed

to

raise

an

issue

Rodriguez’s claims for overtime pay.

of

fact

related

to

(Pls.’ Resp. at 4.)

This objection simply reiterates the argument made by
Defendant

in

the

underlying

summary

judgment

briefing--that

pursuant to an employment agreement as evidenced by the Beach Note
and the Mollo Memo, Rodriguez was compensated for overtime hours.
(See Def.’s Br. at 12 (“What matters is the employment agreement.
Here, without genuine issue, the employment agreement began with
a regular rate of pay of $9.00 per hour and an overtime rate of
pay of $13.50 per hour.”); Def.’s Opp. at 4-5 (“The business record
authored by Ms. [Beach], and as testified to by her, is persuasive
enough.

But when combined with the business record authored by

Frank Mollo, the evidence is undisputed:
hourly

rate

$13.50.”).)

was
As

$9.00
a

and

result,

his
the

Mr. Rodriguez’s starting

starting
Court

overtime

reviews

rate

Judge

was

Locke’s

conclusions on this issue for clear error, and finds none.

See

Sunoco, Inc. v. 175-33 Horace Harding Realty Corp., No. 11-CV2319, 2016 WL 5239597, at *2 (E.D.N.Y. Sept. 22, 2016), aff’d, -- F. App’x ---, 2017 WL 3887987 (2d Cir. 2017) (reviewing R&R for
clear

error

arguments”).

when

defendant

“simply

reiterate[d]

his

original

Judge Locke carefully considered these arguments and

determined that Defendant failed to proffer sufficient evidence of
a valid employee-employer agreement to create an issue of material
fact.

The Court sees no reason to disturb that determination.
14

B.

Rana Dunn’s Affidavit
Defendant objects to Judge Locke’s determination that

Dunn’s affidavit was “more credible” than the testimony of other
witnesses.

(Def.’s Obj. at 9.)

Dunn submitted an affidavit

stating that during her tenure, she became aware that Knightsbridge
was

violating

the

FLSA,

including

by

classifying

non-exempt

employees as exempt from the overtime provisions, but when she
brought it to the company’s attention, Knightsbridge refused to
remedy its non-compliance.
54-18.)

(Dunn Aff., Pls.’ Ex. 15, Docket Entry

Plaintiffs respond that the “R&R made no such ruling,”

but that Defendant appears to be objecting to the R&R’s reliance
on the affidavit during the discussion of whether Defendant’s
violations of the FLSA were willful.

(Pls.’ Resp. at 6.)

This objection is far from clear and reads more like a
personal attack on Ms. Dunn than a legal argument.

(See Def.’s

Obj. at 10 (arguing that Ms. Dunn “failed at her job”).) Moreover,
Defendant fails to specify the specific portion of the R&R which
made this determination.

In any event, Judge Locke did not

conclude that the affidavit deserved greater weight than other
evidence.

However, he did consider the affidavit as evidence of

Knightsbridge’s willful violations of the FLSA.

To the extent

that Defendant is objecting to that finding, the Court will address
that objection supra.

15

C.

The R&R’s Interpretation of Giles v. City of New York
Defendant argues that Judge Locke misinterpreted Giles

v. City of New York, 41 F. Supp. 2d 308 (S.D.N.Y. 1999).
Obj. at 12.)

(Def.’s

Specifically, Defendant contends that it did not

cite Giles to argue that the Court should infer the existence of
an agreement based on the parties’ conduct, but rather, to support
its

argument

that

“the

way

in

which

Mr.

paid . . . did not violate the FLSA or NYLL.”
13.)
the

was

(Def.’s Obj. at 12-

Additionally, Defendant asserts that “[t]he Giles case, and
supporting

case

law

it

cited

which

dates

precluded summary judgment for the plaintiff.”
13.)

Rodriguez

Defendant

also

reiterates

its

arguments

back

to

1962,

(Def.’s Obj. at
regarding

the

existence of an employment agreement with Rodriguez.4 (Def.’s Obj.
at 13-16.)

Plaintiffs maintain that Judge Locke’s interpretation

of Giles is correct.

(Pls.’ Resp. at 6-7.)

In Giles, a class of public employees brought suit
against the City of New York to recover unpaid overtime wages.
Giles, 41 F. Supp. 2d at 309.

During a discussion of the FLSA’s

overtime provisions, the court stated that when an employee works
more than forty hours a week and is paid a “standard wage,” the
Court must consider the parties’ intent, including “how many

Because the Court has already reviewed Judge Locke’s
conclusions on that issue for clear error and found none, it
will not re-address those arguments here.
4

16

hours . . . the employer and employee underst[oo]d the salary to
cover.”

Id. at 316 (quoting Nunn’s Battery & Electric Co. v.

Goldberg, 298 F.2d 516, 519 (5th Cir. 1962)).
specified

that

“[u]nless

the

contracting

Further, the court
parties

intend

and

understand the weekly salary to include overtime hours at the
premium rate, courts do not deem weekly salaries to include the
overtime

premium

for

workers

regularly

logging

overtime,

but

instead hold that weekly salary covers only the first 40 hours.”
Id. at 317.

Finally, the court outlined the applicable legal

framework, writing that “[t]here is a rebuttable presumption that
a weekly salary covers 40 hours; the employer can rebut the
presumption by showing an employer-employee agreement that the
salary covers a different number of hours.”
Defendant’s
reasons.

First,

arguments

contrary

to

are

Id.

unconvincing

Defendant’s

for

several

representations,

Defendant did cite Giles as support for inferring an employeremployee agreement based on the parties’ conduct.
at 19.)

(See Def.’s Br.

Second, while Defendant is correct that Giles permits

combining regular and overtime rates of pay into an annual salary,
the legality of such arrangements was never in question.

Judge

Locke’s R&R recognized that employers may comply with the FLSA by
computing an annual salary based on an employee’s regular rate of
pay for the first forty hours of work and a higher rate for overtime
hours.

(See

R&R

at

18-19.)

However,
17

as

Judge

Locke

also

acknowledged, the employer must rebut the presumption that the
annual salary covers only forty hours by submitting a valid
employer-employee agreement.

(See R&R at 18-19.)

As discussed in

section II.A supra, Defendant has not done so; Defendant has not
presented evidence from which a reasonable jury could conclude
that

Knightsbridge

discussed

this

alleged

arrangement

with

Rodriguez or that Rodriguez agreed to be paid in this manner.
Therefore, the fact that such an agreement--if it existed--would
be permissible under the FLSA is irrelevant.

Defendant’s attempts

to appeal to common sense and the “general legal tenets applicable
to trial procedure” and to undermine Rodriguez’s testimony on
unrelated topics similarly fail.

(Def.’s Obj. at 14.)

The law is

clear, and Defendant has failed to meet its burden.
D.

The R&R’s Denial of Summary Judgment as to Damages
Defendant objects to Judge Locke’s recommendation that

a trial is required on damages due to the existence of issues of
fact as to the amount of overtime worked by Rodriguez and Barbato.
(Def.’s Obj. at 16.)

Defendant argues that this recommendation is

“incongruous with the finding that Mr. Rodriguez deserves summary
judgment” because just as there are issues of fact as to damages,
there

are

issues

of

fact

as

to

whether

Rodriguez

incorporate overtime pay into his annual salary.
16.)

agreed

to

(Def.’s Obj. at

Defendant also cites several cases which it argues supports

this position.

(Def.’s Obj. at 16-18.)
18

Plaintiffs argue that

there is nothing inconsistent about ordering a trial on damages
while finding in favor of Plaintiffs on liability.
at 7.)

(Pls.’ Resp.

Further, Plaintiffs maintain that the cases cited by

Defendant actually undermine Defendant’s contention.

(Pls.’ Resp.

at 7-8.)
The Court agrees with Plaintiffs.

Judge Locke properly

denied summary judgment on the issue of damages because there are
disputes

regarding

Plaintiffs

and

the

the

number

amount

of

of

overtime

overtime

hours

pay

they

worked
are

by

owed.

Defendant’s analogy relies on the false premise that “there is
evidence on both sides” related to the existence of an employment
agreement with Rodriguez.

(See Def.’s Obj. at 16.)

As discussed

above, Defendant did not present sufficient evidence to create an
issue

of

material

overtime pay.

fact

regarding

Rodriguez’s

entitlement

to

Unsurprisingly, this objection also re-iterates

Defendant’s prior arguments regarding the purported employment
agreement.

Regardless of the manner in which Defendant presents

this argument, it is the same argument, and it still fails.
Moreover, the cases cited by Defendant do not support
its position.

In Moreno v. 194 East Second Street LLC, No. 10-

CV-7458, 2013 WL 55954, at *1 (S.D.N.Y. Jan. 4, 2013), the court
denied plaintiff’s motion for summary judgment because there was
a genuine issue of fact as to whether the parties had an agreement
that overtime pay would be incorporated into the plaintiff’s annual
19

salary.

In another case, Pest v. Bridal Works of New York, Inc.,

No. 16-CV-1523, 2017 WL 3393967, at *8 (E.D.N.Y. July 27, 2017),
Magistrate Judge Cheryl Pollak denied the employer’s motion for
summary judgment because there were issues of fact regarding
“whether plaintiff qualifies as a piecework employee, whether
plaintiff worked more than 40 hours per work, and if plaintiff did
work more than 40 hours per week, the amount of hours of overtime
she worked.”

Finally, in Leong v. 127 Glen Head Inc., 102 F. Supp.

3d 450, 453 (E.D.N.Y. 2015), the plaintiff’s motion for summary
judgment was denied based on the existence of factual disputes
related to the number of hours worked and plaintiff’s wages.

The

fact that courts have denied summary judgment motions based on the
existence of issues of fact in other cases does not create an issue
of fact in this case.
E.

The R&R’s Finding that Knightsbridge Willfully
Violated the FLSA
Defendant

objects

to

Judge

Locke’s

finding

that

Knightsbridge willfully violated the FLSA and his recommendation
that, as a result, the Court should impose a three-year statute of
limitations for FLSA violations.

(Def.’s Obj. at 20; R&R at 32.)

Without further explanation, Defendant refers the Court to the
arguments in their reply brief. (Def.’s Reply at 1-3.) Plaintiffs
maintain that the Court should disregard this objection as a
reiteration of Defendant’s prior arguments.

20

(Pls.’ Resp. at 8.)

Alternatively, they argue that Judge Locke’s determination was
correct because “Defendant presented no evidence to demonstrate a
lack of willfulness.”

(Pls.’ Resp. at 9.)

This objection is meritless.

As discussed above, where

a party “simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for clear error.”
Walker, 216 F. Supp. 2d at 292 (internal quotation marks and
citation omitted).
previously

filed

Further, “[m]erely referring the court to
papers

or

arguments

does

not

constitute

an

adequate objection” under Federal Rule of Civil Procedure 72(b).
Benitez v. Parmer, 654 F. App’x 502, 503 (2d Cir. 2016) (quoting
Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)).
The Court has reviewed this portion of the R&R for clear error and
finds none.
To the extent that Defendant argues that Judge Locke
improperly determined that the Dunn affidavit was more credible
than other evidence, this argument also fails.5

(Def.’s Obj. at

9-12.) Judge Locke reviewed the evidence submitted by both parties
and concluded that the evidence submitted by Defendant failed to
establish an issue of fact as to whether Defendant violated the

The Court fails to see the relevance of Defendant’s analogy to
horse racing in this discussion. (Def.’s Obj. at 11. (“By way
of analogy, one can call an Arabian horse a thoroughbred, but
that Arabian will not win the Kentucky Derby. The Arabian will
always be an Arabian no matter what you call it.”).)
5

21

FLSA willfully.

(R&R at 16.)

Judge Locke considered an email

submitted by Defendant but found that the email did “nothing to
counter the sworn admissions of Defendant’s former Vice President
of Human Resources,” who stated that she advised Knightbridge that
they were violating the FLSA but that the company failed to take
any action.

(See Dunn Aff.)

Thus, Judge Locke did not determine

that the Dunn affidavit was more credible than other evidence;
rather, he determined that Defendant failed to come forward with
any evidence demonstrating a lack of willfulness, and as a result,
summary judgment for Plaintiffs was appropriate.

The Court finds

no error in that determination.
F.

The R&R’s Recommendation that Plaintiffs be Awarded
Damages for Violations of NYLL Sections 195(1) and 195(3)
Finally,

Defendant

objects

to

Judge

Locke’s

recommendation that the Court grant summary judgment in favor of
Plaintiffs in the amount of $5,000 to each Plaintiff for violations
of NYLL Sections 195(1)(a) and 195(3).
Defendant

contends

that

Judge

Locke

(Def.’s Obj. at 20.)
“totally

rejected”

its

argument “not because of the substance, but because defendant
allegedly raised the argument for the first time in its reply
brief.”

(Def.’s Obj. at 20.)

Defendant also refers the Court to

the arguments in its reply brief. (Def.’s Obj. at 20.) Plaintiffs
counter

that

Judge

Locke

did

consider

Defendant’s

arguments

despite the fact that Defendant raised them for the first time on

22

reply.

(Pls.’ Resp. at 9.)

Additionally, they argue that the

Court should review this portion of the R&R for clear error because
the

objection

arguments.

constitutes

a

reiteration

of

Defendant’s

prior

(Pls.’ Resp. at 9.)
The

Court

agrees

with

Plaintiffs.

Judge

Locke

acknowledged that Defendant’s arguments regarding NYLL sections
195(1)(a) and 195(3) were procedurally defective, but ultimately
relied on the testimony of Defendant’s Rule 30(b)(6) witness, who
admitted that Knightsbridge did not provide the required wage and
hour notices.
refers

the

(R&R at 25.)

Court

explanation,

to

the

Moreover, because this objection

Defendant’s

Court

need

recommendation for clear error.

reply
only

brief

without

further

review

Judge

Locke’s

See Benitez, 654 F. App’x at 503.

The Court finds no error in Judge Locke’s recommendation on
Plaintiff’s wage and hour notice claims.
CONCLUSION
The Court finds Judge Locke’s Report and Recommendation
to be thorough and well-reasoned.

For the foregoing reasons,

Defendant’s objections are OVERRULED, and the R&R is ADOPTED in
its entirety.

Plaintiffs’ motion for summary judgment (Docket

Entry 54) is GRANTED IN PART and DENIED IN PART, and Defendant’s
motion

for

summary

judgment

(Docket

Entry

53)

is

DENIED.

Defendant’s motion to dismiss Barbato’s claims is also DENIED, and
Defendant’s motion to decertify the conditional class is GRANTED.
23

Plaintiffs are entitled to: (1) a three-year statute of limitations
under the FLSA, (2) an award of unpaid overtime compensation under
the FLSA and NYLL, (3) an award of $5,000 in damages each for
violations of NYLL Sections 195(1)(a) and 195(3), and (4) an award
of attorneys’ fees at the appropriate time.

While Plaintiffs have

prevailed on liability, the amount of unpaid overtime compensation
they are owed will be determined at trial.
The parties shall file letters within fourteen (14) days
of the date of this Memorandum and Order setting forth their
respective positions on scheduling a settlement conference with
Judge Locke.

If the parties are unable to resolve this matter, a

damages trial will proceed promptly.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
20
, 2017
Central Islip, New York

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