Barbecho et al v. M.A. Angeliades, Inc. et al

Filing 124

OPINION AND ORDER: Because there is no reason to revisit Judge Cedarbaum's Summary Judgment Opinion dismissing plaintiffs' NYLL claims, plaintiffs' motion for reconsideration (D.I. 105) is denied. (As further set forth in this Order) (Signed by Magistrate Judge Henry B. Pitman on 9/29/2016) Copies Sent By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DANIEL ALMAZO, LUIS BARBECHO,
MANUEL IMANAGUA, ELIAS JUAREZ,
LUIS MOLINA, JUSTO SAUL MORA,
LUIS MOROCHO, and LUIS TIERRA
on behalf of themselves and
other similarly situated,

:
:
:
:

Plaintiffs,

11 Civ. 1717 (HBP)
:

-against:
M.A. ANGELIADES, INC.,
ANGELIADES GROUP LLC, MERKOURIOS
"MIKE" ANGELIADES, DIMITRI
MALAKIDIS, IRENA ANGELIADES,
FEDERAL INSURANCE COMPANY, a
subsidiary of Chubb Group of
Insurance Companies, and JOHN
DOES #1-100,
Defendants.

OPINION
AND ORDER

:
:
:
:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

By notice of motion dated November 24, 2015 (Docket
Item ("D.I.") 105), plaintiffs seek partial reconsideration of an
Opinion of the late Honorable Miriam G. Cedarbaum, United States
District Judge, dated November 10, 2015 (D.I. 104) ("Summary
Judgment Opinion"), which granted that portion of defendants'
motion for summary judgment seeking dismissal of plaintiffs'

claims for unpaid overtime wages under the New York Labor Law
("NYLL") (see Pls. Mem. Of Law in Supp. Of Motion for Reconsideration, dated Nov. 24, 2015 (D.I. 106) ("Pls. Mem.")).

The

parties have consented to my exercising plenary jurisdiction in
this matter pursuant to 28 U.S.C. § 636(c) (D.I. 113).

For the

reasons set forth below, plaintiffs' motion is denied.

II.

Background

The facts underlying this action are summarized in
Judge Cedarbaum's Summary Judgment Opinion.

The reader's famil-

iarity with that decision is assumed and I recite only those
facts relevant to this Opinion and Order.
At all relevant times, the Angeliades Defendants
operated a contracting business in New York City that did construction work on public works projects for New York City agencies (Summary Judgment Opinion at 2-3).

Plaintiffs worked as

laborers and carpenters on public works projects for the
Angeliades defendants (Summary Judgment Opinion at 3, 5).
Plaintiffs bring this collective and putative class action
alleging that defendants failed to pay them for work they performed on weekends (Summary Judgment Opinion at 1, 5).

In the

First Amended Complaint (D.I. 50) ("FAC"), plaintiffs asserted
claims for failure to pay overtime wages and retaliation under
2

the Fair Labor Standards Act, the NYLL and for breach of contract
as third party beneficiaries (Summary Judgment Opinion at 1-2).
Judge Cedarbaum dismissed plaintiffs' claims for
overtime under the NYLL because plaintiffs failed to exhaust
their administrative remedies before asserting a claim under that
statute (Summary Judgment Opinion at 5).

In her Summary Judgment

Opinion, Judge Cedarbaum summarized the provisions of NYLL § 220,
which set forth the hours and overtime requirements and limitations applicable to laborers working on public works projects
(Summary Judgment Opinion at 3-5).

Judge Cedarbaum also quoted

from the public works contracts at issue in this case, which
referenced NYLL § 220 (Summary Judgment Opinion at 3-4).

The

relevant portion of Judge Cedarbaum's opinion, which is the focus
of plaintiffs' motion for reconsideration here, provides:
As to Plaintiffs' statutory claims, NYLL § 220(7)-(9)
requires employees of public works projects to exhaust
administrative remedies before bringing a private right
of action. Samborski v. Linear Abatement Corp., No. 96
CIV. 1405 (DC), 1998 WL 474069, at *2 (S.D.N.Y. Aug.
10, 1998) [Chin, D.J.]; Ethelberth v. Choice Sec. Co.,
[91 F. Supp. 3d 339] (E.D.N.Y. Feb. 27, 2015). Plaintiffs have given no indication that they have exhausted
administrative remedies. Summary judgment on the NYLL
overtime claims is therefore granted.
(Summary Judgment Opinion at 5).
Plaintiffs do not dispute that NYLL § 220(7)-(9)
requires employees of public works projects to exhaust adminis-

3

trative remedies before bringing a private action.

Nevertheless,

plaintiffs argue that Judge Cedarbaum erred in dismissing plaintiffs' NYLL overtime claims because plaintiffs did not assert
those claims under Section 220 of the NYLL, and, therefore, they
were not required to exhaust administrative remedies (Pl. Mem. at
10-11).

Plaintiffs argue that they "actually brought those

claims under Article 19 [of the NYLL] and under the Wage Order,
12 NYCRR Part 142" (Pl. Mem., citing FAC at 13-15 & Pls. Mem. Of
Law in Opp. to Motion for Summary Judgment, dated June 29, 2015
(D.I. 91) ("Pls. Summary Judgment Mem.") at 9).

Further, plain-

tiffs argue that the two cases on which Judge Cedarbaum relied do
not support her ruling because those decisions involved claims
that were actually asserted under NYLL § 220 (Pls. Mem. at 1113).

Defendants oppose plaintiffs' motion and argue that plain-

tiffs' motion seeks to re-litigate arguments that were already
presented to and rejected by Judge Cedarbaum (Defs Mem. of Law in
Opposition to Pls. Motion for Reconsideration, dated Dec. 15,
2015 (D.I. 109) ("Def. Mem.") at 3).1

1

Defendants also raise alternative bases for dismissal of
plaintiffs' NYLL claims and repeat arguments that they raised in
their original motion for summary judgment seeking dismissal of
plaintiffs' contract claims (Defs. Mem. at 3-6). This appears to
be an effort to seek reconsideration of those portions of Judge
Cedarbaum's Summary Judgment Opinion that were adverse to
defendants. Defendants' attempt to make their own motion for
(continued...)
4

III.

Analysis

A.

Legal Standards

Motions for reconsideration are appropriate only under
limited circumstances.

As explained by the late Honorable Peter

K. Leisure, United States District Judge, in Davidson v. Scully,
172 F. Supp. 2d 458, 461-62 (S.D.N.Y. 2001):
A motion for reconsideration may not be used to
advance new facts, issues or arguments not previously
presented to the Court, nor may it be used as a vehicle
for relitigating issues already decided by the Court.
See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). A party seeking reconsideration "is not
supposed to treat the court's initial decision as the
opening of a dialogue in which that party may then use
such a motion to advance new theories or adduce new
evidence in response to the court's rulings." Polsby
v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 WL
98057, at *1 (S.D.N.Y. Jan 18, 2000) (Mukasey, J.).
Thus, a motion for reconsideration "is not a substitute
for appeal and 'may be granted only where the Court has
overlooked matters or controlling decisions which might
have materially influenced the earlier decision.'"
Morales v. Quintiles Transnational Corp., 25 F. Supp.
2d 369, 372 (S.D.N.Y. 1998) (citations omitted).

1

(...continued)
reconsideration through their opposition brief is improper and
untimely. See Fed. R. Civ. P. 7(b)(1) (a request for a court
order must be made by motion); S.D.N.Y. Local Rule 6.3 (providing
that a notice of motion for reconsideration shall be served
within fourteen days after entry of the court's determination on
the original motion). I shall not, therefore, address these
arguments.
5

See also Mahmud v. Kaufmann, 496 F. Supp. 2d 266, 269-70
(S.D.N.Y. 2007) (Conner, D.J.).

"A movant for reconsideration

bears the heavy burden of demonstrating that there has been an
intervening change of controlling law, that new evidence has
become available, or that there is a need to correct a clear
error or prevent manifest injustice."

Quinn v. Altria Grp.,

Inc., 07 Civ. 8783 (LTS)(RLE), 2008 WL 3518462 at *1 (S.D.N.Y.
Aug. 1, 2008) (Swain, D.J.), citing Virgin Airways v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
A moving party is entitled to reargument under Local
Rule 6.3 where she "can point to controlling decisions or data
that the court overlooked -- matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court."

In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003)

(citation omitted), abrogated on other grounds, In re Zarnel, 619
F.3d 156, 167 (2d Cir. 2010); accord Allied Mar., Inc. v. Rice
Corp., 361 F. Supp. 2d 148, 149 & n.1 (S.D.N.Y. 2004)
(Scheindlin, D.J.).
Thus, a motion for reconsideration generally may not
advance "new facts, issues or arguments not previously presented
to the Court."

Torres v. Carry, 672 F. Supp. 2d 346, 348

(S.D.N.Y. 2009) (Marrero, D.J.), quoting Davidson v. Scully,
supra, 172 F. Supp. 2d at 461.

"These limitations serve to
6

ensure finality and to prevent losing parties from using motions
for reconsideration as a vehicle by which they may then plug the
gaps of a lost motion with additional matters."

In re City of

New York, as Owner & Operator of M/V Andrew J. Barberi,
CV-03-6049 (ERK)(VVP), 2008 WL 1734236 at *1 (E.D.N.Y. Apr. 10,
2008), citing Zoll v. Jordache Enters. Inc., 01 Civ. 1339 (CSH),
2003 WL 1964054 at *2 (S.D.N.Y. Apr. 24, 2003) (Haight, D.J.);
accord Cohn v. Metro. Life Ins., Co., 07 Civ. 0928 (HB), 2007 WL
2710393 at *1 (S.D.N.Y. Sept. 7, 2007) (Baer, D.J.).

B.

Application of the
Foregoing Principles

Although plaintiffs correctly note that they did not
rely on NYLL § 220 in asserting their NYLL claims in the FAC, the
case law indicates that plaintiffs' state statutory unpaid
overtime claims for work on public works projects are nonetheless
governed by NYLL § 220.

There is compelling authority that NYLL

§ 220 was meant to supersede other statutory remedies.

For

example, in one case, the Fourth Department stated that "the
express imposition of liability and creation of particular
remedies [in NYLL § 220] suggests that . . . except for preexisting common law remedies, the Legislature intended the
specific remedies it created [in NYLL § 220] to be the exclusive

7

remedies."

E. Williamson Roofing & Sheet Metal Co. v. Town of

Parish, 139 A.D.2d 97, 104, 530 N.Y.S.2d 720, 725 (4th Dep't
1988); accord Samborski v. Linear Abatement Corp., supra, 1998 WL
474069 at *3.

Other cases similarly recognize that a party may

not evade NYLL § 220's administrative exhaustion requirement for
claims that fall within the statute's purview.

See Johnson v.

Carlo Lizza & Sons Paving, Inc., 160 F. Supp. 3d 605, 613
(S.D.N.Y. 2016) (Engelmayer, D.J.) ("When the relevant public
works contract expressly incorporates the prevailing-wage requirement of New York law, as such contracts must, it is clear
that workers may either pursue an administrative remedy or sue
for breach of contract as third-party beneficiaries." (footnote
omitted; emphasis in original)); Brandy v. Canea Mare Contr.,
Inc., 34 A.D.3d 512, 514, 825 N.Y.S.2d 230, 232 (2d Dep't 2006)
("The Supreme Court . . . properly determined that the plaintiffs
were required to exhaust their administrative remedies prior to
commencing a cause of action . . . under Labor Law § 220-g . . .
.

The plaintiffs may not circumvent the exhaustion of remedies

requirement under the statute by asserting that they did not
really bring a cause of action pursuant thereto."); Jara v.
Strong Steel Door, Inc., 20 Misc.3d 1135(A), 872 N.Y.S.2d 691
(Table), 2008 WL 3823769 at *12 (N.Y. Sup. 2008) ("To the extent
that prevailing wages are sought to be recovered [for labor at
8

public works], Labor Law § 191 is an inappropriate vehicle for
such recovery. . . .

Rather, Labor Law § 220 is the appropriate

statutory provision applicable to plaintiffs' claims") (citations
omitted).

Thus, the case law squarely supports Judge Cedarbaum's

holding that plaintiffs' overtime claims are governed by NYLL §
220.
Plaintiffs cite Ethelberth v. Choice Sec. Co., supra,
91 F. Supp. 3d 339, for the proposition that an employee on a
public works project can choose whether to bring his claim under
NYLL § 220 or another NYLL provision that does not require
exhaustion of administrative remedies (Pl. Mem. at 12).

Plain-

tiffs correctly point out that the plaintiffs' NYLL § 220 claims
in Ethelberth were dismissed for failure to exhaust administrative remedies but that the plaintiffs were permitted to proceed
with their claims under the New York Minimum Wage Act, NYLL §
650, et. seq.

See Ethelberth v. Choice Sec. Co., supra, 91 F.

Supp. 3d at 358-59.

In Ethelberth, however, plaintiffs' NYLL

claims arose from work done on both public works projects and at
private sites.

See Ethelberth v. Choice Sec. Co., supra, 91 F.

Supp. 3d at 346.

There is some ambiguity in the decision because

in the portion of the decision discussing which claims survived
the motion to dismiss, the court did not explicitly address the
distinction between work at private sites and public works
9

projects.

See Ethelberth v. Choice Sec. Co., supra, 91 F. Supp.

3d at 358-59.

Nonetheless, the decision does not support the

proposition that the plaintiffs in this case, whose claims are
for work done exclusively on public works projects, may choose
which remedy to pursue under the NYLL.
Moreover, plaintiffs' proposed interpretation of the
statute would render the provisions of NYLL § 220 -- including
its mandate of administrative exhaustion -- superfluous.

"In the

construction of a statute, meaning and effect should be given to
all its language, if possible, and words are not to be rejected
as superfluous when it is practicable to give to each a distinct
and separate meaning."

McKinney N.Y. Statutes § 231; accord

Matter of Suarez v. Williams, 26 N.Y.3d 440, 451, 44 N.E.3d 915,
921, 23 N.Y.S.3d 617, 623 (2015) (rejecting interpretation of a
statute that would "eviscerat[e]" or at "at best [make] redundant
and unnecessary" an avenue for seeking relief under the statute
and, thus, "would contravene the legislative purpose, and would
be contrary to the well-established rule that courts should not
interpret a statute in a manner that would render it meaningless").

If a worker on a public works project could circumvent

the administrative exhaustion requirement in NYLL § 220 by filing
claims under another provision of the statute, that would effectively nullify the exhaustion requirement for claims related to
10

work on public works projects.

Plaintiffs here have not identi-

fied anything that renders NYLL § 220 inapplicable to their
claims -- indeed, in the FAC, they seek unpaid wages "including
prevailing wages"

(FAC at

is defined in NYLL

§

~~

27-32,

94), which plaintiffs assert

220 (Pls. Summary Judgment Mem. at 1 & n.2,

citing HMI Mech. Sys., Inc. v. McGowan, 266 F.3d 142, 145 (2d
Cir. 2001), citing NYLL

§

220 (3),

(5) (b)).

Therefore,

I decline

to adopt plaintiffs' proposed interpretation of the NYLL, which
would render NYLL

§

220's administrative exhaustion requirement

superfluous.

IV.

Conclusion

Because there is no reason to revisit Judge Cedarbaum's
Summary Judgment Opinion dismissing plaintiffs' NYLL claims,
plaintiffs' motion for reconsideration (D.I. 105) is denied.
Dated:

New York, New York
September 29, 2016
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel of Record

11