Romero v. Bestcare, Inc. et al

Filing 29

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Defendants' objections are OVERRULED, and the R&R is ADOPTED in its entirety. Defendants' motion to dismiss (Docket Entry 18) is DENIED, and the matter shall proceed to discovery. So Ordered by Judge Joanna Seybert on 3/29/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
DINORA ROMERO, on behalf of herself
and all others similarly situated,
Plaintiff,

MEMORANDUM & ORDER
15-CV-7397(JS)(GRB)

-against–
BESTCARE INC., BESTCARE MANAGEMENT,
INC., and LAWRENCE WIENER,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Neil Frank, Esq.
Anthony Vincent Merrill, Esq.
Frank & Associates, P.C.
500 Bi-County Boulevard, Suite 465
Farmingdale, NY 11735
For Defendants:

Jonathan Paul Arfa, Esq.
Jonathan P. Arfa, P.C.
2 Westchester Park Drive
West Harrison, NY 10604

SEYBERT, District Judge:
Plaintiff Dinora Romero (“Plaintiff”) commenced this
action

against

Bestcare,

Inc.,

Bestcare

Management,

Inc.

and

Lawrence Wiener (collectively “Defendants”) on December 30, 2015.
(Compl., Docket Entry 1.)

She alleges that Defendants violated

the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and
New York State Labor Law Article 19, § 650 et seq. (“NYSLL”).
Currently pending before the Court are: (1) Defendants’ motion to
dismiss Plaintiff’s FLSA claim for failure to state a claim (Defs.’
Mot., Docket Entry 18) and (2) Magistrate Judge Gary R. Brown’s

Report and Recommendation (the “R&R”) recommending that the Court
deny Defendants’ motion (R&R, Docket Entry 24).

Defendants filed

objections to the R&R. (Obj., Docket Entry 26.) For the following
reasons, Defendants’ objections are OVERRULED, and the R&R is
ADOPTED in its entirety.

Defendants’ motion to dismiss is DENIED.
BACKGROUND

I.

Factual Background1
Defendants Bestcare Inc. and Bestcare Management, Inc.

are New York corporations engaged in the home health care business.
(Compl. ¶ 14.)
and

chief

Defendant Lawrence Wiener is the owner, operator,

executive

Management, Inc.2

officer

of

Bestcare

Inc.

and

Bestcare

(Compl. ¶¶ 16-17.)

Plaintiff was employed by Defendants from July 2012 to
March 2014 and was paid on an hourly basis.3

(Compl. ¶¶ 10-11.)

She worked at the Queen of the Rosary Motherhouse Complex in
Amityville,

New

York

(the

“Motherhouse”).

(Compl.

¶

11.)

The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572, 127 S.
Ct. 1955, 1975, 167 L. Ed. 2d 929 (2007) (“[A] judge ruling on a
defendant’s motion to dismiss a complaint must accept as true
all of the factual allegations contained in the complaint.”
(internal quotation marks and citation omitted)).
1

Plaintiff alleges that Bestcare, Inc. and Bestcare Management
Company, Inc. are employers as defined by the FLSA and NYSLL.
(Compl. ¶ 15.)
2

Plaintiff alleges that she qualifies as an employee under the
FLSA and NYSLL. (Compl. ¶ 10.)
3

2

Plaintiff alleges that she “performed non-exempt duties” including
“caring for the physical needs of infirm patients/residents of the
facility, . . . [and] assisting patients with their daily needs,
including bathing, feeding, dressing, ambulating and transporting
them

for

meals

and

designated

activities.”

(Compl.

¶

12.)

Plaintiff alleges that while she was employed by Defendants, she
regularly worked between seventy and eighty hours per week but was
not paid overtime wages or spread of hours pay.
23.)

(Compl. ¶¶ 22-

Specifically, she alleges that she worked from 7:00 a.m. to

7:00 p.m. six to seven days per week.

(Compl. ¶ 22.)

Plaintiff

also alleges that Defendants failed to maintain accurate records
and failed to reimburse her for the price of uniforms as required
by statute.
II.

(Compl. ¶¶ 24-27.)

Procedural History
The Complaint was filed on December 30, 2015.

Compl.)

(See,

Plaintiff asserts four causes of action: (1) to recover

unpaid overtime wages under the FLSA, (Compl. ¶¶ 45-55); (2) to
recover unpaid overtime wages under the NYSLL, (Compl. ¶¶ 56-61);
(3) to recover spread of hours pay under the NYSLL, (Compl. ¶¶ 6267); and (4) to recover the uniform allowance provided for by the
NYSLL, (Compl. ¶¶ 68-71).

On April 4, 2016, Defendants requested

a pre-motion conference to discuss their anticipated motion to
dismiss.

(Defs.’ Ltr., Docket Entry 15.)

At the conference, the

Court granted Defendants leave to move to dismiss Plaintiff’s first
3

cause of action based on the FLSA’s companionship exemption, which
exempts certain employees from the overtime wage provisions of the
FLSA.

(Minute Order, Docket Entry 17.)

The parties agreed that

whether Plaintiff is exempt hinges on whether the Motherhouse is
considered a private home under the applicable regulation, and
Plaintiff agreed to voluntarily dismiss the case, including the
three state law claims, if Defendants’ motion was granted.
Minute Order.)
dismiss.

(See,

On July 20, 2016, Defendants filed their motion to

(See, Defs.’ Mot.)

Plaintiff filed her opposition on

August 22, 2016, and Defendants filed their reply on September 13,
2016.

(Pl.’s Opp., Docket Entry 20; Defs.’ Reply, Docket Entry

22.)
On

October

13,

2016,

the

undersigned

referred

Defendants’ motion to Judge Brown for a report and recommendation
on whether the motion should be granted.
Entry 23.)

On February 8, 2017, Judge Brown recommended that the

Court deny Defendants’ motion.
the

R&R

(Referral Order, Docket

on

February

28,

Defendants’ filed objections to

2017,

and

Plaintiff

Defendants’ objections on March 16, 2017.

responded

to

(Obj.; Opp. to Obj.,

Docket Entry 28.)
THE R&R
Judge Brown concluded that Defendants’ motion should be
denied for several reasons.

(R&R at 5-6.)

First, Judge Brown

determined that “[n]othing in the allegations of the [C]omplaint
4

serves to establish that the subject facility was a private home.”
(R&R at 5.)

Judge Brown pointed out that in fact, the Complaint

describes the Motherhouse as a “complex” leading to “a reasonable
inference that the facility is something other than a private
home.”

(R&R at 5.)

Second, Judge Brown found that Defendants

improperly relied on materials outside of the Complaint in their
motion,

including

an

Affidavit

from

Sister

(“Warren Affidavit,” Docket Entry 18-9).

Marguerite

(R&R at 5.)

Warren

Judge Brown

considered whether conversion to a motion for summary judgment was
appropriate but did not recommend conversion in this case.
at 5-6.)
not

Therefore, “because the face of the [C]omplaint d[id]

clearly

defense,”
denied.

(R&R

establish

Judge

Brown

[D]efendants’
recommended

right

that

to

an

Defendants’

affirmative
motion

be

(R&R at 6.)
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.

See FED. R. CIV. P. 72(b)(2).
5

Upon

receiving

any

timely

objections

to

the

magistrate

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

of

recommendation to which they are objecting.

the

report

and

See Barratt v. Joie,

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

or

Court

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.

The FLSA Companionship Exemption
Generally, the FLSA requires that an employee is paid

overtime wages of one and a half times their regular pay rate for
each

hour

Provision”).

worked

in

excess

of

forty

29 U.S.C. § 207(a)(1).

hours

(the

“Overtime

However, “any employee

employed in domestic service employment to provide companionship
services for individuals who (because of age or infirmity) are
unable to care for themselves” are exempt from the Overtime
6

Provision.

29 U.S.C. § 213(a)(15); see also Cowell v. Utopia Home

Care, Inc., 144 F. Supp. 3d 398, 402 (E.D.N.Y. 2015).

The

Department of Labor (the “DOL”) promulgated a regulation that
defines domestic service employment as “services of a household
nature

performed

by

an

employee

(permanent or temporary).”
also

provides

considered

a

or

about

29 C.F.R. § 552.3.

non-exhaustive

domestic

in

services

list

of

employment,

health aides and personal care aides.

jobs

a

private

home

The regulation
that

which

would

includes

be

home

29 C.F.R. § 552.3.

As

discussed, whether Plaintiff falls within the exemption turns on
whether the Motherhouse is considered a private home.

“[B]ecause

the FLSA is remedial in nature,” this Court is required to construe
the exemption narrowly and Defendants “bear[] the burden of proving
that [Plaintiff] falls within the exemption.”

Henry v. Nannys for

Grannys Inc., 86 F. Supp. 3d 155, 158 (E.D.N.Y. 2015) (quoting
Reiseck v. Universal Comms. of Miami, Inc., 591 F.3d 101, 104 (2d
Cir. 2010)).
III. Defendants’ Objections
Defendants argue that Judge Brown erred by refusing to
consider several exhibits attached to their motion.

(Obj. at 2.)

They contend that they requested that Judge Brown take judicial
notice of Exhibits B, C, D, E, F, and G (the “Exhibits”) as “matters
of public record” and that Judge Brown should have done so.

(Obj.

at 3-4.; see also Arfa Aff., Exs. B-G, Docket Entries 18-3-18-8.)
7

The Exhibits at issue are: (1) Ex. B, an excerpt from the Wikipedia
page

for

the

Motherhouse;

(2)

Ex.

C,

an

excerpt

from

the

CenterLight Healthcare PACE website4; (3) Ex. D, 29 C.F.R. 552.6,
a regulation defining companionship services; (4) Ex. E, Fact Sheet
# 79 titled “Private Homes and Domestic Service Employment under
the Fair Labor Standards Act” authored by the DOL; (5) Ex. F, an
excerpt of a final rule discussing the meaning of “private home,”
78 Fed. Reg. 60,454; and (6) Ex. G, an opinion letter from the DOL
regarding the companionship exemption.

(Exs. B-G.)

Defendants argue that these “are exactly the type of
public documents which are subject to judicial notice” and maintain
that these exhibits demonstrate that the motion to dismiss should
be granted.

(Obj. at 5-7.)

Plaintiff responds that taking

judicial notice of these documents would be improper because the
accuracy and authenticity of the Exhibits has not been established.
(Opp. to Obj. at 3.)
the

Exhibits

were

Alternatively, Plaintiff argues that even if
considered,

Defendants’

motion

still

fails

because “the face of the Complaint does not clearly establish
Defendants’ right” to the companionship exemption.

(Opp. to Obj.

at 4-5.)

CenterLight Healthcare, Inc. contracts with Defendants to
provide home health services to sisters at the Motherhouse.
(Defs.’ Br. at 2.)
4

8

On a motion to dismiss, the court may consider documents
attached

to

the

complaint,

documents

incorporated

into

the

complaint by reference and facts of which the court may take
judicial notice.

See Kalyanaram v. Am. Ass’n of Univ. Professors

at N.Y. Inst. of Tech. Inc., 742 F.3d 42, 44, n.1 (2d Cir. 2014).
Federal Rule of Evidence 201 provides that a court may, either sua
sponte or at a party’s request, “judicially notice a fact that is
not subject to reasonable dispute because it . . . is generally
known within the trial court’s jurisdiction or . . . can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”

FED. R. EVID. 201(b)(1)-(2).

If

the court takes judicial notice of particular facts, the litigants
are “deprive[d] . . . of the opportunity to use rebuttal evidence,
cross-examination, and argument to attack contrary evidence”, and
as a result, “caution must be used in determining that a fact is
beyond controversy under Rule 201(b).”

Int’l Star Class Yacht

Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d
Cir. 1998).
The Court finds that while it may take judicial notice
of Exhibits D, E, F, and G5, taking judicial notice of the facts

Courts are permitted to take judicial notice of the contents of
the Federal Register and the Code of Federal Regulations and
guidance from administrative agencies. See In re Frito-Lay N.
Am., Inc. All Natural Litig., No. 12-MD-2413, 2013 WL 4647512,
at *4 (E.D.N.Y. Aug. 29, 2013). However, it is unclear if
judicial notice of such materials is required as the facts
5

9

contained in Exhibits B and C is inappropriate.

Exhibit B, the

Wikipedia page for the Motherhouse, is surely not “a source whose
accuracy cannot reasonably be questioned.”

FED. R. EVID. 201(b).

Wikipedia articles can be revised by any internet user, and the
information is not verified.6

Additionally, even if the Court

found Exhibit C, an excerpt from the CenterLight Healthcare, Inc.
website, to be a “source whose accuracy cannot reasonably be
questioned,” the Court can only take notice that the website
contains certain information--not that the information is true.
See Braun v. United Recovery Sys., LP, 14 F. Supp. 3d 159, 169
(S.D.N.Y. 2014) (“[W]hile it is true that the Second Circuit, and
several district courts in that Circuit, have found it appropriate
to take judicial notice of the contents of a party’s website, they
have found it appropriate to do so for the fact of the website’s
publication, not for the truth of any matter asserted therein.”)
(internal quotation marks and citation omitted).

Therefore, the

contained within these documents are legislative facts, not
adjudicative facts covered by Rule 201. See In re Frito-Lay,
2013 WL 4647512, at *4, n.2 (noting that Rule 201 may not apply
where facts sought to be noticed “would remain constant from
case to case, regardless of the identities and actions of the
parties”).
“Because anyone can click ‘edit’ at any time and add stuff in,
any article may contain undetected misinformation, errors or
vandalism.”
Wikipedia: About, https://en.wikipedia.org/
wiki/Wikipedia:About (last accessed March 23, 2017).
6

10

Court declines to take judicial notice of the facts contained in
Exhibits B and C.7
Although the Court can take judicial notice of Exhibits
D, E, F, and G, Defendants’ motion still fails.

These Exhibits do

not establish that Plaintiff is an exempt employee, and neither
does the Complaint.

See Gomez v. Dynaserv Indus., Inc., No. 15-

CV-3452, 2016 WL 6072371, at *1 (E.D.N.Y. Oct. 17, 2016) (“The
exemption is an affirmative defense that may only form the basis
for a Rule 12(b)(6) dismissal if it appears on the face of the
complaint.”) (internal quotation marks and citation omitted);
Henry, 86 F. Supp. 3d at 160 (“A court may . . . grant a motion to
dismiss . . . where the Complaint contains allegations that
unequivocally qualify an employee as exempt from the overtime
provisions.”) (internal quotation marks and citation omitted).

As

Judge Brown pointed out, the Complaint alleges that Plaintiff
“performed non-exempt duties . . . for more than forty hours every
week at the Motherhouse” and “describes the Motherhouse as a
‘complex.’”

(R&R at 5; Compl. ¶¶ 10-11.)

The additional facts

relevant to the determination of whether the Motherhouse is a

The Court notes that it also may not consider the Warren
Affidavit (Docket Entry 18-9) or Plaintiff’s Affidavit (Docket
Entry 20-2) in connection with this motion. See Festa v. Local
3 Int’l Bhd. of Elec. Workers, 905 F.2d 35, 37-38 (2d Cir. 1990)
(discussing that district court’s consideration of affidavits
submitted by defendants in support of a 12(b)(6) motion was
improper).
7

11

private home are not before this Court and must be established
See Henry, 86 F. Supp. 3d at 159 (“Whether

through discovery.8

Plaintiffs qualify as exempt is a matter to be fleshed out during
discovery.”).

Further, Plaintiff is not required to plead such

facts in the Complaint to state a cause of action.
HF

Mgmt.

Servs.,

LLC,

726

F.3d

85,

91,

n.7

See Dejesus v.
(2d

Cir.

2013)

(“[Plaintiff] . . . was not required to plead facts at this stage
of the proceedings to support her position that she was a nonexempt

employee

.

.

.

who

falls

outside

of

the

FLSA’s

exemptions.”).

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

Defendants concede that they are not aware of any cases
analyzing if a facility similar to the Motherhouse qualifies as
a private home but refer to several factor tests articulated by
courts in other circuits. (See Defs.’ Br., Docket Entry 18-10,
at 5-8 (citing Welding v. Bios Corp., 353 F.3d 1214 (10th Cir.
2004); Terwilliger v. Home of Hope, Inc., 21 F. Supp. 2d 1294
(N.D. Ok. 1998)).) However, the nature of these tests further
support allowing the case to proceed to discovery because the
Court cannot apply these tests absent a more complete factual
record. (See, e.g., Defs.’ Br. at 8 (discussing factors such as
funding, access to the facility, whether it operates on a forprofit or not-for-profit basis, and the organization’s size).)
8

12

Accordingly, Defendants’ objections are OVERRULED, and
Defendants’ motion to dismiss is DENIED.
CONCLUSION
For the foregoing reasons, Defendants’ objections are
OVERRULED, and the R&R is ADOPTED in its entirety.

Defendants’

motion to dismiss (Docket Entry 18) is DENIED, and the matter shall
proceed to discovery.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
29 , 2017
Central Islip, New York

13