Rosario v. Mis Hijos Deli Corp. et al
Filing
122
MEMORANDUM OPINION AND ORDER: re: 79 MOTION for Summary Judgment filed by Leonida Collado, Palma Grocery Corp., 70 MOTION for Summary Judgment filed by 251 E. 123rd St. Realty, LLC, 74 MOTION for Summary Judgment filed by Jose Palma. For the fo regoing reasons, Moving Defendants' motions for summary judgment are granted as to Plaintiff's FLSA claims against Realty, Collado, and PGC, but are denied with respect to Plaintiff's FLSA claims against Palma that arise from events in or after August 2013. Defendants' motions for summary judgment are granted with respect to Plaintiff's NYLL claims against PGC and Collado to the extent they are based on conduct occurring after June 2013, butare denied in all respects as to the NYLL claims against Palma and Realty, and are denied in all other respects. The following claims against the Moving Defendants remain to be adjudicated at trial: (1) FLSA claims against Palma predicated on conduct after August 2013; (2) all NY LL claims against Palma; (3) NYLL claims against Realty; and (4) any NYLL claims against Collado and PGC arising from conduct prior to July 2013. Docket Entry Nos. 70, 74, and 79 are hereby resolved. The Parties are directed to meet promptly with Mag istrate Judge Freeman for settlement purposes. The final pre-trial conference will be held on January 25, 2019, at 12:00 p.m. in Courtroom 17C. The parties must confer and make their pre-conference submissions as required by the Pre-Trial Scheduling Order (Docket Entry No. 91). SO ORDERED., ( Final Pretrial Conference set for 1/25/2019 at 12:00 PM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 9/27/2018) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MANUEL DE JESUS ROSARIO,
Plaintiff,
-v-
No. 15 CV 6049-LTS-DCF
MIS HIJOS DELI CORP., PALMA
GROCERY CORP., 251 E. 123rd ST.
REALTY, LLC, JOSE PALMA, LEONIDA
COLLADO, and JUNIOR PALMA,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiff Manuel De Jesus Rosario brings this action against defendants Mis Hijos
Deli Corp. (“Mis Hijos”), Palma Grocery Corp. (“PGC”), 251 E. 123rd St. Realty, LLC
(“Realty”), Jose Palma (“Palma”), Leonida Collado, and Junior Palma (collectively
“Defendants”) for failure to pay minimum wage and the required rate for overtime pay in
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C § 201 et seq., and for violations of
minimum wage, overtime, wage notice, spread-of-hours, and split-shift pay requirements under
New York Labor Law (“NYLL”). Defendants Collado, Palma, PGC, and Realty (collectively,
“Moving Defendants”) have moved for summary judgment dismissing all federal and state law
claims against them. (Docket Entry Nos. 70, 74, 79.)
The Court has subject matter jurisdiction of this action under 28 U.S.C. sections
1331 and 1367.
The Court has considered the submissions of all parties carefully and, for the
following reasons, grants the motions in part and denies them in part.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
1
BACKGROUND1
Palma and Collado were in an unmarried romantic relationship resulting in three
children, including Junior Palma. (Collado Tr., Docket Entry No. 97-15, at 9:22-10:10, 11:1814:8.) They opened PGC, taking over the space of a previous grocery store at 251 E. 123rd
Street, New York, New York (the “Building”). (Id. at 14:12-23; Palma Tr., Docket Entry No.
97-26, at 15:24-17:2.) Palma then purchased the Building, which comprised four stories of
apartments and a retail story on the ground floor, sometime between 1979 and 1981. (Realty’s
56.1 St. ¶ 4; Collado Tr. at 14:12-23; Palma Tr. at 15:15-23, 19:15-20; see also Pl.’s Opp’n to
Realty’s 56.1 St. ¶¶ 2-6.) Collado was listed as PGC’s sole stockholder in a Corporate Report
filed with the New York State Division of Alcoholic Beverage Control on March 19, 1985, and
was listed as PGC’s chief executive officer in the New York Department of State’s corporation
database.2 (Palma’s 56.1 St. ¶ 15; Collado and PGC’s 56.1 St. ¶¶ 8, 9; see also Pl.’s Opp’n to
Palma’s 56.1 St. ¶ 15.) For some period of time, Collado and Palma both worked at the store.
(Collado Tr. at 14:24-15:1.) Around 1981, Collado and Palma ended their romantic relationship
and, according to Collado’s testimony, from that point forward Collado ran PGC without
Palma’s involvement. (Collado Tr. at 15:13-19, 18:21-24; Palma Tr. at 24:21-25:1.) Collado
1
2
The material facts recited herein are undisputed unless otherwise indicated. Facts recited
as undisputed are identified as such in the parties’ statements pursuant to
S.D.N.Y. Local Civil Rule 56.1 or drawn from evidence as to which there is no nonconclusory contrary factual proffer. Citations to the parties’ respective Local
Civil Rule 56.1 Statements (“Palma’s 56.1 St.,” “Realty’s 56.1 St.,” “Collado and PGC’s
56.1 St.,” “Pl.’s Opp’n to Palma’s 56.1 St.,” “Pl.’s Opp’n to Realty’s 56.1 St.,” or, “Pl.’s
Opp’n to Collado and PGC’s 56.1 St.”) incorporate by reference the parties’ citations to
underlying evidentiary submissions.
Plaintiff objects to Defendants’ submission of the printout from the New York
Department of State’s corporation database (Rodriguez Decl., Ex. 11, Docket Entry No.
81-3, at page 13), characterizing the document as “inadmissible,” but does not otherwise
explain the grounds for its objection. (See Pl.’s Opp’n to Collado and PGC’s 56.1 St. ¶
9.)
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
2
commenced paying Palma rent in cash. (Collado Tr. at 19:8-10.) Collado recalls that the rent
was initially $2,500 per month in consideration of the parties’ relationship and was eventually
increased to $3,000. (Id. at 18:24-19-7.) Palma recalls the rent as being set at $2,000, and
testified that PGC was often unable to pay the whole sum. (Palma Tr. at 26:17-24; see Pl.’s
Opp’n to Collado and PGC’s 56.1 St., Additional Statements of Material Fact ¶ 50.) Palma
testified that he “could get a little better” rent for the store on the open market. (Palma Tr. at
85:8-21.) Palma was unable to recall when the last written lease was signed and testified that he
did not conduct a search for a lease agreement with either PGC or Mis Hijos, the grocery store
that was later operated in the premises. (Pl.’s Opp’n to Realty’s 56.1 St., Additional Statements
of Material Fact ¶¶ 37-38.)
Palma testified that he relocated to Santo Domingo in the Dominican Republic in
the 1980s and returns to the United States about once a year. (Palma Tr. at 24:16-19.) From
2009 until 2013, Palma received an annual salary from PGC ranging from $8,450 to $34,450.
(See Pl.’s Opp’n to Palma’s 56.1 St., Additional Statements of Material Fact ¶¶ 6, 7, 10, 13, 16,
19.)
In 1995, Plaintiff was hired to work at PGC by the manager, Reuben, with
Palma’s authorization. (Rosario Tr., Docket Entry Nos. 97-13 and 97-14, at 34:19-36:19; Pl.’s
Opp’n to Palma’s 56.1 St. ¶ 15.) In contrast to Plama’s testimony that Palma has principally
spent his time in the Dominican Republic at all relevant times, Plaintiff alleges that Palma was
frequently at PGC and was involved in its operation and management. According to Plaintiff,
Reuben set his schedule and, with Palma’s approval, also set his wages, which were initially
$200 per week. (Palma’s 56.1 St. ¶ 16; Pl.’s Opp’n to Palma’s 56.1 St. ¶ 16; Rosario Tr. at
35:15-37:4; Collado Tr. at 101:11-14.) Plaintiff testified that, during the period in which Reuben
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
3
managed PGC, Palma was “always” at PGC, would pay him when the manager was not there,
and “told [him] what he had to do in the store.” (Pl.’s Opp’n to Palma’s 56.1 St. ¶ 16; Rosario
Tr. at 37:5-19.) According to Plaintiff, starting in 1995, Palma allowed Plaintiff to eat a
sandwich from PGC at lunch. (Rosario Tr. at 77:3-16.) Plaintiff testified that when Plaintiff
asked Junior Palma, who replaced Reuben as manager in 2003, for a raise and a MetroCard as
part of his compensation, Junior Palma, in turn, asked Palma for approval. (Id. at 77:17-78:24.)
At some point, Palma transferred ownership of the Building to Realty, a New
York limited liability company. (Realty’s 56.1 St. ¶¶ 1-2; Palma Tr. at 78:7-10; see also Pl.’s
Opp’n to Realty’s 56.1 St. ¶¶1-2.3) Realty’s Articles of Organization recite that “[a]t the time of
its formation, [Realty] had at least one member, to wit: Jose Palma.” (Docket Entry No. 72-3.)
According to Realty’s Schedule E to Palma’s personal tax returns, Realty had gross revenues of
$128,905 in 2012, $175,424 in 2013, $193,543 in 2014, and $223,271 in 2015. (Realty’s 56.1
St. ¶ 15; see Pl.’s Opp’n to Realty’s 56.1 St. ¶ 15.) Residential rent was generally paid in cash
and several of Palma’s family members resided in the Building for free. (Pl.’s Opp’n to Realty’s
56.1 St. ¶ 15.)
The parties proffer conflicting evidence as to who served as the superintendent,
on-site manager, or custodian for the Building. Junior Palma, Collado, and Palma testified that a
woman named Francisca Polanco was the building superintendent until her death. (Junior Palma
3
Plaintiff objects to Defendants’ submission of a printout from the New York State
Department of State’s database for Realty (Rodriguez Decl., Ex. 1, Docket Entry No. 721) as “inadmissible,” but does not otherwise explain the grounds for its objection. (See
Pl.’s Opp’n to Realty’s 56.1 St. ¶ 1.) Plaintiff also objects to Defendant’s use of Palma’s
testimony to establish that Realty owns the Building, arguing that the testimony violates
the best evidence rule, but seemingly assumes in arguments proffered in its briefing
papers that Palma owns the Building through Realty. (See Pl.’s Opp’n to Realty’s 56.1
St. ¶ 2; see also Pl.’s Opp’n at 12-13.)
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
4
Tr. at 35:16-36:21; Collado Tr. at 90:21-92:4; Palma Tr. at 61:9-63:10.) According to Junior
Palma, Palma is now the superintendent despite living in the Dominican Republic, while a
woman named Janet Rivera cleans the Building, removes the trash, and makes repairs. (Junior
Palma Tr. at 36:22-38:24; Collado Tr. at 92:8-23; Palma Tr. at 61:9-63:10.) Palma testified that
Rivera receives a $200 credit towards monthly rent for these duties. (Palma Tr. at 62:13-18.)
Annual reports from 2014-2016 submitted to the New York City Department of Housing
Preservation and Development list Junior Palma as the on-site manager. (See Docket Entry Nos.
101-5, 101-6, and 101-7.)
Plaintiff testified that, although “[he] didn’t work for the building,” his duties
included mopping the Building’s stairs and hallways, removing trash from the Building, and,
when necessary, clearing snow. (Rosario Tr. at 60:15-61:10.) Plaintiff shared these duties with
another employee, Emilio, who would be sent to the Building if Plaintiff was unavailable. (Id. at
65:5-14.) Until his departure from PGC in 2003, Reuben would generally send Plaintiff to
perform work in the Building three to four times per week. (Id. at 63:12-64:5.) After 2003,
Collado sent Plaintiff to perform work in the Building. (Id. at 64:14-21.) When asked at his
deposition whether Reuben supervised his work at the building, Plaintiff responded that
“[Rueben] saw it, but he had nothing to say, because it was well done.” (Id. at 66:13-17.) When
asked whether Palma ever supervised his work at the Building, Plaintiff responded that Palma
saw Plaintiff performing the work, but that Plaintiff did not need supervision because
“[e]verything I do is well done.” (Id. at 70:2-10.)
Collado worked with an attorney, Mitchell Mund, who was involved in “setting
the manner and method of payment to [her] employees” and “advise[d] [her] about how to pay
[her] employees.” (Collado Tr. at 25:6-16; Collado and PGC’s 56.1 St. ¶ 17; see also Pl.’s
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
5
Opp’n to Collado and PGC’s 56.1 St. ¶ 17.) When asked at her deposition whether she had
wage and hour records for Plaintiff, she responded that she “had an attorney[, Mund,] for that.”
(Collado Tr. at 24:5-10.) The record includes payroll summaries reflecting what appear to be
weekly sums paid to various individuals, but not hours worked. (Docket Entry Nos. 97-43 to 9764.)
Collado “gave up” PGC and surrendered her lease in May 2013. (Collado Tr. at
31:9-20; Collado and Realty’s 56.1 St. ¶ 13; Junior Palma Tr. at 13:16-18; see also Pl.’s Opp’n to
Collado and Realty’s 56.1 St. ¶ 13 (objecting to Defendants’ Rule 56.1 statement as a
characterization of deposition testimony).) PGC then closed for renovations and reopened with a
new sign under the name Mis Hijos. (Rosario Tr. at 70:18-71:20; Collado and PGC’s 56.1 St. ¶¶
5-7; see also Pl.’s Opp’n to Collado and PGC’s 56.1 St. ¶¶ 5-7 (stating that Plaintiff did not
testify that the new sign was specifically for Mis Hijos).) Plaintiff continued to work at the
premises. (Compl., Docket Entry No. 5, ¶ 23.) Mis Hijos was incorporated on May 21, 2013.
(Collado and PGC’s 56.1 St. ¶ 4; Pl.’s Opp’n to Collado and PGC’s 56.1 St. ¶ 4 (objecting to the
cited printout from the New York Department of State’s corporations database, Decl. of Argilio
Rodriguez, Ex. 5, Docket Entry No. 81-2, as “inadmissible” but providing no further
explanation).) Plaintiff estimates that Mis Hijos reopened within two weeks after PGC’s closure,
whereas Junior Palma places its opening in June 2013. (Collado and PGC’s 56.1 St. ¶ 7; Rosario
Tr. at 71:9-17; see Pl.’s Opp’n to Collado and PGC’s 56.1 St. ¶ 7.)
Palma testified that he established Mis Hijos for his children, signing the
necessary documents and then returning to the Dominican Republic. (Palma’s 56.1 St. ¶ 10;
Pl.’s Opp’n to Palma’s 56.1 St. ¶ 10: Palma Tr. at 30:18-31:7.) Palma represented that, although
he is the sole “registered owner with the State of New York,” he gave the business to Junior
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
6
Palma, who is the true owner, and that he does not know how many employees Mis Hijos has
because he only comes to the United States to visit. (Palma Tr. at 31:8-15, 114:14-17.) Realty
charged Junior Palma $3,500 a month in rent to help him start the business, with the prospect
that the rent might increase. (Id. 87:1-9.)
In Mis Hijos’s application for its liquor license, Jose Palma represented that he
devoted 50 hours per week to Mis Hijos’s business and that he “[oversaw] daily operation of the
business.” (Docket Entry No. 97-1.) Mis Hijos’s tax returns for 2013 and 2014 list Palma as the
sole shareholder. (Pl.’s Opp’n to Palma’s 56.1 St., Additional Statements of Material Fact ¶ 28.)
In Defendants’ response to Plaintiff’s interrogatories, which were sworn to by
Junior Palma, Defendants identified Palma, along with others, as a person believed to have
“participated in, contributed to, or [been] in a position to decide the compensation of Plaintiff,”
as “responsible for supervising Plaintiff during their [sic] employment with [Mis Hijos,]” and as
having “prepared and/or distributed paychecks or payments” with respect to Plaintiff’s
employment at Mis Hijos. (Responses to Interrogatories, Docket Entry No. 97-11, Nos. 4, 8,
12.)
Defendants assert that Palma spent a total of 25 days in the United States between
September 20, 2012, and September 13, 2016, whereas Plaintiff asserts that Palma spent 62 days
in the United States during that period.4 (Palma’s 56.1 St. ¶ 13; Pl.’s Opp’n to Palma’s 56.1 St. ¶
13.) Plaintiff testified in 2016 that he had last seen Palma about two years before and that the
4
Both parties base their accounting of Palma’s time in the United States on their
examination of his passport. (Docket Entry No. 76-6.) The copy of Palma’s passport
submitted to the Court is not sufficiently clear to corroborate either assertion, but the
difference between 25 and 62 days is not material to the Court’s decision.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
7
last time he saw him before that meeting was when Palma became a citizen in 2012. (Palma’s
56.1 St. ¶ 12; see Pl.’s Opp’n to Palma’s 56.1 St. ¶ 12.)
Palma and Junior Palma each received an annual salary from Mis Hijos of
$19,500 and $11,580, respectively, in 2013, $33,800 and $16,640 in 2014, and $33,800 and
$18,188 in 2015. (Pl.’s Opp’n to Palma’s 56.1 St., Additional Statements of Material Fact ¶¶ 2227.)
Mund prepared tax returns for Realty, PGC, and Palma’s family members,
including his sons David and Junior, and Collado (PGC Account Ledgers, Docket Entry No. 9765) and he continued to prepare returns for Mis Hijos, recording his transactions from June 2013
through August 2016 with all Defendants on a ledger entitled “Mis Hijos Deli Corp.” with
payments accompanied by the code “1109” (Mis Hijos Accountant Ledgers, Docket Entry No.
97-66).
Plaintiff filed his complaint against Defendants on August 3, 2015, at which time
Plaintiff was still employed by Mis Hijos. (Compl. ¶ 23.)
DISCUSSION
Collado, Palma, Realty, and PGC move for summary judgment dismissing the
federal FLSA and certain of the New York State Labor Law claims against them. Defendants
argue that Realty is not an enterprise engaged in interstate commerce subject to the FLSA, that
the FLSA claims against Collado, Palma, and PGC are time barred as to conduct prior to August
2013, and that Collado, Palma, PGC, and Realty are not employers under the FLSA and NYLL.
Summary Judgment Standard
The pending motions are brought pursuant to Rule 56(a) of the Federal Rules of
Civil Procedure. Under Rule 56(a), summary judgment is appropriate when the “movant shows
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
8
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” The moving party bears the burden of demonstrating the absence of any material
issues of fact, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986), and the court
must be able to find that, “after drawing all reasonable inferences in favor of a non-movant, no
reasonable trier of fact could find in favor of that party.” Marvel Entertainment, Inc. v. Kellytoy
(USA), Inc., 769 F. Supp. 2d 520, 523 (S.D.N.Y.2011) (quoting Heublein v. United States, 996
F.2d 1455, 1461 (2d Cir.1993)) (internal quotation marks omitted). A fact is considered material
“if it might affect the outcome of the suit under the governing law,” and an issue of fact is
“genuine” where “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d Cir.2001) (internal
quotation marks and citations omitted). “[M]ere conclusory allegations or denials . . . cannot by
themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir.2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d
Cir. 1995)) (internal quotation marks and citations omitted).
The Court now turns to the Moving Defendants’ various arguments for dismissal
of Plaintiff’s claims.
Whether Realty was an Enterprise Engaged in Interstate Commerce
Whose Revenues Exceed the FLSA Statutory Threshold
To succeed on an FLSA minimum or overtime wage claim, a Plaintiff must
establish: (1) that he is an FLSA-covered employee, personally engaged in or employed by an
enterprise engaged in interstate commerce; (2) the existence of an employer-employee
relationship between the plaintiff and the defendant; and (3) that he worked hours for which he
was not properly compensated in accordance with the FLSA’s relevant substantive requirements.
See Jian Zhong v. August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007). If a plaintiff is not
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
9
personally engaged in interstate commerce,5 he may still be an FLSA-covered employee if he is
employed by an enterprise engaged in interstate commerce with at least $500,000 in annual gross
volume of sales. See 29 U.S.C. § 203(s)(1)(A); see Solis v. Cindy’s Total Care, Inc., No. 10 Civ.
7242, 2012 WL 28141, at *15-16 (S.D.N.Y. Jan. 5, 2012). Defendants contend that Plaintiff is
not an FLSA-covered employee with respect to Realty because Realty did not generate $500,000
in annual gross sales during any relevant period. Plaintiff asserts that the evidence of revenue
proffered by Defendants is not credible, that the Court should account for the below-market rent
offered to Palma’s family members at full market value, and that, even if Realty does not meet
the revenue threshold, Realty and PGC’s, and later Mis Hijos’s, revenue should be aggregated
because the businesses constitute a single enterprise under the FLSA.
Although Defendants have proffered tax returns showing that Realty earned
substantially less than $500,000 in the years relevant to this action, Plaintiff contends that the
Court should infer that the tax returns dramatically understate Realty’s annual gross revenue
because Realty charged PGC and Mis Hijos below market rent and several family members lived
in the Building for free, and because Realty has an incentive to underreport its income to reduce
its tax liability. (Pl.’s Mem. of Law in Opp’n to Defs.’ Mots. for Summ. J. (“Pl.’s Opp’n”),
Docket Entry No. 93, at 18-19.) Plaintiff points out inconsistencies between Palma’s testimony
and documentary evidence with respect to his ownership and role at Mis Hijos to cast doubt on
Palma’s credibility and asserts that Realty’s inability to produce a written lease and exclusive
acceptance of cash for rent, and the dearth of any documentary evidence indicating the receipt of
5
A plaintiff may be an individually covered employee if he or she “personally engaged in
interstate commerce or in the production of goods for interstate commerce.” Shim v.
Millennium Grp., No. 08-CV-4022, 2009 WL 211367, at *2 (E.D.N.Y. Jan 28 2009))
(internal quotation marks omitted). Plaintiff does not contend that he was such an
employee.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
10
rent payments, relieves Plaintiff of the burden to produce evidence demonstrating that Realty’s
annual gross income exceeded the $500,000 threshold. Plaintiff cites De Xiong Pan v. Wei
Plumbing, Inc. for the proposition that “[t]o require that plaintiffs make a precise showing of
defendant’s gross annual revenues, despite defendants’ blatantly inadequate record-keeping,
would unfairly penalize plaintiffs for their employer’s poor business practices and perversely
incentivize bad record-keeping among employers hoping to shield themselves from FLSA
claims.” No. 12 CV 1781 MHD, 2013 WL 6053496, at *12 (S.D.N.Y. Nov. 13, 2013).
The defendant in Xiong Pan, as the quoted language suggests, did not keep
accurate records of revenues. The evidence before the court in that case also suggested
underreporting of income on tax returns and undisclosed cash income and bank accounts. Id. at
*11-12. There was before the court, however, sufficient evidence of revenues to place the
company over the threshold for at least one year, and circumstantial evidence from which the
factfinder could properly have made credibility findings and drawn inferences supporting
conclusions that the threshold was exceeded in the other years at issue as well. See id. Summary
judgment was therefore denied.
Here, by contrast, Plaintiff has proffered no evidence from which computations of
actual revenue exceeding $500,000 could properly be made, relying instead on speculation as to
rental market values higher than the rates charged, and further speculation regarding possible
falsification of the returns. Speculation is an improper basis for the relevant calculations and is
insufficient to defeat a motion for summary judgment. See Jian Long Li v. Li Qin Zhao, 35 F.
Supp. 3d 300, 306 (E.D.N.Y. 2014) (finding that the plaintiff failed to raise a genuine issue of
material fact and stating that “[i]t is not enough for [the plaintiff] to argue that the tax returns did
not credibly report the [defendant’s] gross sales, when considered alongside its costs, without
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
11
furnishing ‘concrete’ and ‘affirmative’ evidence to support the conclusion that the [defendant’s]
gross sales were more than $500,000 every year.”).
To the extent Plaintiff is arguing that the Court should account for revenue that
Realty could have earned, but did not because it charged below-market rent to PGC, Mis Hijos,
and Palma’s family members living in the Building’s residential apartments, he has provided no
authority for this proposition and the Court declines to speculate on what revenue Realty might
have earned in such circumstances. See Millennium Pipeline Co., LLC v. Certain Permanent and
Temp. Easements, 552 Fed. App’x 37, 39 (2014) (stating that “speculation is insufficient to
defeat summary judgment”). Indeed, Department of Labor regulations provide that gross annual
volume should be calculated based on the price a customer actually paid for the relevant good or
service, including in the property leasing context. See 29 C.F.R. §§ 779.258, 779.259(a).
Plaintiff has thus failed to establish that Realty, standing alone, is a covered
employer on the basis of its revenues, or even to frame a triable issue of fact in that respect.
Plaintiff also argues, however, that Realty constituted a single enterprise with PGC and, later Mis
Hijos (collectively, the “Delis”), and that their annual revenues should be aggregated for the
purposes of the gross revenue threshold.
Single Enterprise Theory
Courts will treat multiple entities as a single enterprise for FLSA purposes if “(1)
the entity or entities . . . engage in related activities, (2) performed through unified operation or
common control, (3) for a common business purpose.” See Garcia v. Serpe, No. 3:08-CV1662(VLB), 2012 WL 380253, at *4, 8 (D. Conn. Feb. 6, 2012) (quoting Bowrin v. Catholic
Guardian Soc’y, 417 F. Supp. 2d 449, 458 (S.D.N.Y. 2006)) (internal quotation marks and
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
12
citations omitted). “Common ownership standing alone does not bring unrelated activities
within the scope of the same enterprise.” 29 C.F.R. § 779.211 (providing guidance on whether
activities are related for the purposes of aggregation of annual revenues). Different business
entities engage in related activities if they are operationally interdependent and provide
“mutually supportive service[s] to the substantial advantage of each entity.” Bowrin, 417 F.
Supp. 2d at 458-59 (quoting Archie v. Grand Cent. P’shp, 997 F. Supp. 504, 525 (S.D.N.Y.
1998) (internal quotation marks omitted).
Plaintiff argues that Realty and the Delis engaged in related activities and
operated under unified control. Plaintiff asserts that Palma owned and controlled both Realty
and Delis as part of an amalgamated family enterprise and that Realty provided preferential rent
to the Delis while the Delis provided employees to clean and repair the Building. Plaintiff avers
that the use of the Deli employees was necessary because no financial records support
Defendants’ testimony that Defendants compensated Rivera to clean the Building. Plaintiff has
not, however, met his burden of proffering evidence from which a reasonable jury could find that
Realty and either Deli shared a common business purpose.
A common business purpose “encompass[es] activities [or business systems] . . .
which are directed to the same business objective or to similar objectives in which the group has
an interest.” 29 C.F.R. § 779.213. A finding of a common business purpose generally requires
evidence of two entities engaging in complementary businesses that are substantially
operationally interdependent. Reich v. Bay, 23 F.3d 110, 115-16 (5th Cir. 1994). Examples of
entities sharing a common business purpose include affiliated non-profit entities that seek to
improve business conditions for a fee in different business improvement districts, Archie, 997 F.
Supp. at 527-28, and a subcontractor whose supply of skilled labor to a related entity represented
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
13
over 90% of its business, Reich, 23 F.3d at 115-16. “More than a common goal to make a profit,
however, must be shown to satisfy the requirement.” Brennan v. Veterans Cleaning Service,
Inc., 482 F.2d 1362, 1367 (5th Cir. 1973); see also 29 C.F.R. § 779.212 (stating that, generally,
commonly-owned retail and construction businesses do not share a common business purpose).
Here, Defendants characterize Realty’s business objective as renting out space in
the Building to both commercial and residential tenants and the Delis’ business objectives as
selling food and groceries at a profit. Plaintiff contends that both Realty and the Delis have the
common business objective of deriving profit from the productive use of space within the
Building. Plaintiff further argues that “[t]he common business purpose of the entities is the
operation of the Building, in its entirety, for the profit of [Palma] and his family.” (Pl.’s Reply
Supp. Mem of Law in Further Opp’n to Defs.’ Mots. for Summ. J., Docket Entry No 117, at 4.)
While the Delis require space in which to sell their products, it is not reasonable
to characterize their principal business purpose as deriving profit from the use of that space,
rather, as Defendants assert, they seek to make a profit from the sale of food products. Cf.
Rodriguez v. Shan Namkeen, No. 3:15-CV-3370-BK, 2017 WL 2118345, at *5 (N.D. Tx. May
15, 2017) (holding that a laundromat and food manufacturer under common control did not share
a common business purpose despite operating on the same real estate and occasionally sharing
employees). Furthermore, despite evidence that each business gained some benefit from the
facilities or labor of the other, Plaintiff does not proffer facts from which the Court could infer
that the operations of each business were truly interdependent—that the operations of either
business were dependent upon or primarily intended to support the other. See id. at *4-5 (finding
that sharing some employees and facilities does not demonstrate the operational interdependence
needed to show a common business purpose). Plaintiff’s assertion that Realty and the Delis’
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
14
business objective was to benefit Defendants’ purportedly amalgamated family business is
simply a statement that both business worked to profit their owners, which is not a cognizable
common business purpose. See Brennan 482 F.2d 1362, 1367 (“More than a common goal to
make a profit, however, must be shown to satisfy the requirement.”). Accordingly, Plaintiff has
failed to frame a genuine issue of material fact as to whether Realty was an FLSA-covered
employer at the relevant times, and Realty is entitled as a matter of law to dismissal of Plaintiff’s
FLSA claims against it.
Statute of Limitations
Defendants next argue that the FLSA’s two-year statute of limitations bars all of
Plaintiff’s claims regarding conduct that took place before August 2013. Plaintiff contends that
the two-year statute of limitations should be extended to three years, as provided by 29 U.S.C.
section 255(a), because Defendants’ FLSA violations were willful. Plaintiff argues that an
inference of willful conduct is warranted because Collado consulted an attorney about PGC’s
wage and recordkeeping practices, Plaintiff was severely underpaid and paid in cash, and
Defendants can be deemed to have known of the FLSA’s requirements owing to their long
experience running grocery stores.
To demonstrate that a defendant acted willfully, a plaintiff bears the burden of
establishing that the defendant “knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the FLSA.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 130
(1988) (quoting and affirming 799 F.2d 80, 83 (3d Cir. 1986)) (quotation marks and emphasis
omitted); Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009) (“The burden is on
the employee to show willfulness.”). This standard requires that a plaintiff demonstrate more
than that “the defendant should have known it was violating the law, . . . [but] involves actual
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
15
knowledge of a legal requirement, and deliberate disregard of the risk that one is in violation.”
Hart v. Rick's Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 937-38 (S.D.N.Y. 2013) (quoting
Damassia v. Duane Reade, Inc., No. 04-CV-8819(GEL), 2005 WL 1214337, at *3 n. 2 (S.D.N.Y.
May 20, 2005)) (internal quotation marks omitted). A defendant’s extensive experience in an
industry does not, alone, support an inference that she was aware of the FLSA’s requirements.
Eschmann v. White Plains Crane Serv., No. 11-CV-5881 (KAM) (VVP), 2014 WL 1224247, at
*6 (E.D.N.Y. Mar. 24, 2014) (finding, except for one default judgment decision in which all
allegations were deemed admitted, an absence of authority for the proposition that an
“employer’s length of time in business or number of years of experience,” implies a knowledge
of applicable employment law).
Because an employer who acts to determine its legal obligations under the FLSA
in a non-reckless manner does not willfully violate the FLSA, employers may preclude a finding
of willfulness if they demonstrate that they consulted with an attorney or accountant who advised
them that the practice in question was lawful. See McLaughlin, 486 U.S. at 135 n.13 (noting that
when an employer reasonably, or even unreasonably but not recklessly, works to determine its
legal obligations under the FLSA, any violations of the statute may not be deemed willful); see,
e.g., Pignataro v. Port Auth., 593 F.3d 265, 273 (3d Cir. 2010) (finding that the classification of
certain employees was not willful when it was based upon consultation with the defendant’s
legal department). Although Collado has generally proffered that she consulted and worked with
an attorney/consultant on pay methods, Defendants have proffered no specific evidence that she
was advised that PGC’s pay practices were legally complaint. The burden of proving willfulness
is on Plaintiff, however.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
16
Here, Plaintiff argues that the Court should infer from the evidence of Collado’s
consultation with Mund about her pay practices, the specific content of which is not disclosed in
the record, that Mund advised Collado that her actions violated the FLSA and that she must have
disregarded that advice. Although the mere fact that Collado consulted with an attorney may not
be sufficient to establish conclusively that Collado sought in good faith to determine her legal
obligations with respect to the particular FLSA violations alleged, that fact alone is also
insufficient to support a reasonable conclusion that Mund advised Collado that she was not in
compliance with the FLSA and that she then disregarded his advice. Cf. June-Il Kim v. SUK
Inc., No. 12-CV-1557(ALC), 2014 WL 842646, at *6-7 (S.D.N.Y. Mar. 4, 2014) (Failure to
consult with an attorney, inter alia, was “[a]t best, . . . negligence, but a willful violation requires
more.”). Nor is the Court persuaded by Plaintiff’s arguments, for which he cites no authority,
that Defendants’ payment of wages in cash or the magnitude of the alleged violation is indicative
of their knowledge and willful disregard of the FLSA’s requirements.
Because Plaintiff has failed proffer evidence sufficient to demonstrate that the
conduct of any Defendant was willful, or even that there is any genuine issue of material fact in
that regard, Defendants’ motion for summary judgment is granted insofar as all federal claims
against Defendants are time barred with respect to violations allegedly committed before August
2013.
Other Moving Defendants’ Employer Status — FLSA Claims
Defendants argue that all remaining federal claims against PGC, Collado, and
Palma must be dismissed because they and Plaintiff did not maintain an employer-employee
relationship within the meaning of the FLSA in or after August 2013.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
17
Legal Standard
The FLSA defines an “employer” as “any person acting directly or indirectly in
the interest of an employer in relation to an employee.” 29 U.S.C.S. § 203(d) (LexisNexis 2013).
The FLSA defines “employ” as (including) “to suffer or permit to work.” 29 U.S.C.S. § 203(g)
(LexisNexis 2013). “This is the broadest definition of employ that has ever been included in any
one act . . . and it encompasses working relationships, which prior to the FLSA, were not deemed
to fall within an employer-employee category.” Zheng v. Liberty Apparel Co., 355 F.3d 61, 69
(2d Cir. 2003) (internal quotation marks, alterations, and citations omitted).
“The regulations promulgated under the FLSA expressly recognize that a worker
may be employed by more than one entity at the same time.” Zheng, 355 F.3d at 66 (citation
omitted). “[E]ven when one entity exerts ‘ultimate’ control over a worker, that does not preclude
a finding that another entity exerts sufficient control to qualify as a joint employer under the
FLSA.” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 148 (2d Cir. 2008) (citation
omitted). On the other hand, “companies that are part of an ‘integrated enterprise’ or ‘engaged in
a joint venture’ may nevertheless employ separate people and, absent control, are not liable for
the separate employees of joint ventures.” Lopez v. Acme American Environmental Co., Inc.,
No. 12CIV511-WHP, 2012 WL 6062501, at *4 (S.D.N.Y. Dec. 6, 2012) (citation omitted). “The
mere fact that each [c]orporate [d]efendant is owned in whole or major part by the same persons
simply does not permit [the] [c]ourt to disregard their distinct legal statuses.” Paz v. Piedra, No.
09CIV03977-LAK-GWG, 2012 WL 121103, at *7 (S.D.N.Y. Jan. 12, 2012), Report and
Recommendation adopted, No. 09-CV-3977 (Docket No. 185).
“The [Supreme] Court has instructed that the determination of whether an
employer-employee relationship exists for purposes of the FLSA should be grounded in
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
18
economic reality rather than technical concepts, . . . determined by reference not to isolated
factors, but rather upon the circumstances of the whole activity.” Barfield, 537 F.3d at 141
(internal quotation marks and citations omitted). The Second Circuit has established “different
sets of relevant factors [for courts to consider] based on the factual challenges posed by
particular cases.” Id. at 142. In Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984),
the Second Circuit held that, to determine whether an alleged employer had the power to control
the workers in question, a court should weigh: “whether the alleged employer (1) had the power
to hire and fire the employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and (4) maintained
employment records.” However, “[n]o one of the four [Carter] factors standing alone is
dispositive.” Herman v. RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999). Furthermore,
employer “status does not require continuous monitoring of employees, looking over their
shoulders at all times, or any sort of absolute control of one’s employees. Control may be
restricted, or exercised only occasionally, without removing the employment relationship from
the protections of the FLSA.” Id. at 140.
In Zheng v. Liberty Apparel Co., the Second Circuit “observed that although the
four Carter factors might be sufficient to establish an employment relationship, ‘a positive
finding on those four factors’ is not necessary . . . [and it] established a six-factor test pertinent to
assessing the ‘economic realities’ in a situation where an entity might have ‘functional control’
over workers even in the absence of the more formal control represented by the Carter factors.”
Doe I v. Four Bros. Pizza, Inc., No. 13CIV1505-VB, 2013 WL 6083414, at *7 (S.D.N.Y. Nov.
19, 2013) (quoting Zheng, 355 F.3d at 69) (internal quotation marks omitted). The factors
articulated in Zheng are: “(1) whether the alleged employer’s premises and equipment were used
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
19
for the Plaintiffs’ work; (2) whether Plaintiffs shifted from one putative joint employer’s
premises to that of another; (3) the extent to which the work performed by Plaintiffs was integral
to the overall business operation; (4) whether Plaintiffs’ work responsibilities remained the same
regardless of where they worked; (5) the degree to which the alleged employer or its agents
supervised Plaintiffs’ work; and (6) whether Plaintiffs worked exclusively or predominantly for
one Defendant [and, like the Carter factors,] [n]o one factor is dispositive[.]”6 Gisomme v.
Healthex Corp., No. CV 13-2541(LDW)(WDW), 2014 WL 2041824, at *3-4 (E.D.N.Y. May 15,
2014) (quoting Zheng, 355 F.3d at 71-72 and Wolman v. Catholic Health Sys. of Long Island,
Inc., 853 F. Supp. 2d 290, 297 (E.D.N.Y. 2012), aff'd in part, rev’d in part sub nom. Lundy v.
Catholic Health Sys. of Long Island Inc., 711 F.3d 106 (2d Cir. 2013)) (other internal quotation
marks and citations omitted). “The analysis of these factors is holistic, and the court is also free
to consider any other factors it deems relevant to this assessment of the economic realities.”
Duarte v. Tri-State Physical Med. & Rehab., P.C., No. 11 CIV 3765 NRB, 2012 WL 2847741, at
*7 (S.D.N.Y. July 11, 2012) (quoting Zheng, 355 F.3d at 72) (internal quotation marks omitted).
The Court now examines Plaintiff’s contentions with respect to each remaining Defendants’
employer status during the period following August 2013.
Palma
Material disputed issues of fact preclude summary judgment in Palma’s favor on
the issue of whether he was Plaintiff’s employer at any time in or after August 2013. Although
Palma maintains that he resided in the Dominican Republic, rarely visited the United States,
6
The Zheng factors were originally developed to determine whether an employee of an
industrial subcontractor was also an employee of the prime contractor, but the test has
been adopted to address other joint employment situations. See e.g. Hart, 967 F. Supp.
2d at 939-43.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
20
exercised no control over the Deli, and had given the business to Junior Palma, the record
includes evidence that, construed in the light most favorable to Plaintiff, could support a finding
of employer status. Defendants’ joint response to Plaintiff’s interrogatories proffers Defendants’
belief that Palma (at least partially) supervised Plaintiff, exercised control over his wages, and
“prepared and/or distributed paychecks,” including while Plaintiff worked at Mis Hijos. 7
(Responses to Interrogatories Nos. 4, 8, 12.) Plaintiff also points to evidence that Palma received
a salary greater than Junior Palma, who Defendants assert was the true owner and manager of
Mis Hijos, and to Palma’s representations in a filing for Mis Hijos with the Division of Alcoholic
Beverage Control that he was the on-site manager and devoted 50 hours per week to Mis Hijos.
Palma need not consistently have exercised powers as an employer to maintain
that status, see Herman, 172 F.3d at 140, and Defendants have cited no authority for the
proposition that an employer must be physically present to supervise an employee, set his work
schedule, or exercise control over his wages. While Defendants offer plausible arguments to
reconcile the evidence in Palma’s favor, credibility determinations are not appropriate at the
summary judgment phase. See Anderson, 477 U.S. at 255 (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.”). Plaintiff has thus raised genuine issues of material fact as to
Palma’s control over Plaintiff’s work schedule, wages, and conditions of employment in and
7
Plaintiff also points to his own testimony to show that Palma was involved in approving
his hiring, setting his wages from the Deli, and approving Plaintiff’s consumption of Deli
food for lunch. These allegations raise a genuine issue of material fact as to whether
Palma had the power to hire Plaintiff, affect his conditions of employment, and determine
his wages, and thus whether Palma was Plaintiff’s employer under Carter while Plaintiff
worked at PGC.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
21
after June 2013. Therefore the Court denies Defendants’ motion for summary judgment to the
extent it seeks the dismissal of Plaintiff’s remaining FLSA claims against Palma.
Collado
Defendants do not dispute that Collado was Plaintiff’s employer while he worked
at PGC, but they contend that she thereafter “gave up” the store, surrendered PGC’s lease, and
had no involvement with Mis Hijos, which replaced PGC by June 2013. Plaintiff has not
tendered evidence sufficient to frame a material fact issue as to whether Collado was Plaintiff’s
employer while he worked for Mis Hijos. Plaintiff points only to Mund’s ledger entitled “Mis
Hijos Deli Corp.,” which indicates that, in 2014, Mund prepared corporate tax returns for Realty
and Mis Hijos and personal returns for Palma, Collado, and Junior Palma. Plaintiff invites the
Court to infer that Mund was paid to prepare Collado’s taxes by Mis Hijos, which Plaintiff
asserts would support a finding that Collado had an ongoing relationship with Mis Hijos and
Palma and continued to function as Plaintiff’s employer. Plaintiff’s theory is too speculative to
raise a genuine issue of fact. Even assuming that Mis Hijos was providing personal accounting
services to Collado, the provision of such a benefit is not evidence that Collado had any of the
powers or responsibilities with respect to Plaintiff’s employment on which employer status turns
under the Carter test. See Carter, 735 F.2d at 12; see also Irizarry v. Catsimatidis, 722 F.3d 99,
111 (2d Cir. 2013) (“Ownership or a stake in a company, is [alone] insufficient to establish that
an individual is an ‘employer.’”). Because Plaintiff has not proffered sufficient evidence from
which a reasonable factfinder could conclude that Collado was Plaintiff’s employer while he
worked at Mis Hijos, the Court grants the motion for summary judgment to the extent it seeks
dismissal of Plaintiff’s FLSA claims against Collado.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
22
PGC
Plaintiff also appears to argue that PGC continued to employ Plaintiff after Mis
Hijos began operations in June 2013. Plaintiff contends that, in practice, the management and
ownership of the two Delis was identical, but offers no evidence that PGC had any control over
Plaintiff, his schedule, his wages, or his payroll records after June 2013. Defendants’ motion for
summary judgment is therefore granted with respect to Plaintiff’s FLSA claims against PGC for
conduct after June 2013.
Moving Defendants’ Employer Status — NYLL Claims
Moving Defendants also urge the Court to dismiss the NYLL claims against
Collado, PGC, and Palma on the basis that they were not Plaintiff’s employers under state law.
The NYLL defines an employer as an entity or person “employing any individual in any
occupation, industry, trade, business or service.” N.Y. Lab. Law § 190(3). Although the Second
Circuit has observed that the New York Court of Appeals has not yet determined whether the
term employer has the same meaning under both state and federal law, see Irizarry, 722 F.3d at
117, district courts have given the term a consistent interpretation under both statutes unless a
party advances an argument that “any difference would be material to the facts of the case.”
Kalloo v. Unlimited Mech. Co. of NY, 977 F. Supp. 2d 187, 201 (S.D.N.Y. 2013). Because
Plaintiff does not contend that the analysis would be any different under the NYLL, the Court
dismisses Plaintiff’s claims against Collado and PGC to the extent they involve Plaintiff’s
employment occurring after June 2013. The Court similarly denies summary judgment with
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
23
respect to the state law claims against Palma for substantially the reasons set forth above in
connection with Plaintiff’s FLSA claims.8
Realty
Although Plaintiff has not demonstrated that Realty, as an enterprise, is engaged
in a sufficient volume of commerce to be covered by the FLSA, the Court must examine whether
it functioned as Plaintiff’s employer for the purposes of NYLL. As explained above, Plaintiff
has already raised genuine issues of material fact as to the degree of control Palma exercised
over the conditions of Plaintiff’s employment and his duties at the Delis. Based on Palma’s
ownership of Realty, the Department of Housing Preservation and Development forms listing
Junior Palma as the on-site manager of the Building, and Plaintiff’s testimony that Junior Palma
directed him when to work at the Building, a reasonable jury could conclude that Palma and
Junior Palma directed Plaintiff’s duties and work schedule in the building as agents of Realty,
rather than as agents of either Deli. See Hart, 967 F. Supp. 2d at 941-43 (finding a genuine issue
of material fact as to whether the actions of the common manager of two related companies
could support imputation of joint employer status to a defendant if the managers’ actions were
taken on behalf of that defendant, rather than the direct employer).
Plaintiff has also proffered evidence from which a factfinder could infer that
several of the other Zheng factors were met.9 Plaintiff testified that he was sent to work in
8
9
Plaintiff has also raised genuine issues of material fact with respect to Palma’s employer
status prior to June 2013. See supra note 7.
In Zheng, the Second Circuit set forth the following non-exclusive factors that may
indicate joint-employer status: “(1) whether the alleged employer’s premises and
equipment were used for the Plaintiffs’ work; (2) whether Plaintiffs shifted from one
putative joint employer’s premises to that of another; (3) the extent to which the work
performed by Plaintiffs was integral to the overall business operation; (4) whether
Plaintiffs’ work responsibilities remained the same regardless of where they worked; (5)
the degree to which the alleged employer or its agents supervised Plaintiffs’ work; and
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
24
Realty’s portion of the Building three to four times per week, which might have represented a
substantial portion of his work time, and that, when he was not available, his Building duties
would shift to another Deli employee, thereby addressing the first and second factors. He also
performed similar cleaning duties at the premises of both Realty and the Delis (although he had a
somewhat broader set of duties at the Delis) that were integral to the operation of the Building,
furthering Realty’s primary function of providing habitable dwellings, thereby addressing the
third and fourth factors. Plaintiff has thus raised a genuine issue of material fact as to whether
Realty was his joint employer under NYLL and the Court accordingly denies Defendants’
motion for summary judgment as to Plaintiff’s NYLL claim against Realty.10
CONCLUSION
For the foregoing reasons, Moving Defendants’ motions for summary judgment
are granted as to Plaintiff’s FLSA claims against Realty, Collado, and PGC, but are denied with
respect to Plaintiff’s FLSA claims against Palma that arise from events in or after August 2013.
Defendants’ motions for summary judgment are granted with respect to Plaintiff’s NYLL claims
against PGC and Collado to the extent they are based on conduct occurring after June 2013, but
are denied in all respects as to the NYLL claims against Palma and Realty, and are denied in all
other respects.
10
(6) whether Plaintiffs worked exclusively or predominantly for one Defendant [and, like
the Carter factors,] [n]o one factor is dispositive[.]” Gisomme, 2014 WL 2041824 at *34 (quoting Zheng, 355 F.3d at 72 and Wolman, 853 F. Supp. 2d at 297 (E.D.N.Y. 2012))
(other internal quotation marks and citations omitted).
Having found genuine issues of material fact as to whether Realty is liable as a jointemployer under NYLL, the Court declines to consider Plaintiff’s alternative theories to
establish an employer-employee relationship.
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
25
The following claims against the Moving Defendants remain to be adjudicated at
trial: (1) FLSA claims against Palma predicated on conduct after August 2013; (2) all NYLL
claims against Palma; (3) NYLL claims against Realty; and (4) any NYLL claims against
Collado and PGC arising from conduct prior to July 2013.
Docket Entry Nos. 70, 74, and 79 are hereby resolved.
The Parties are directed to meet promptly with Magistrate Judge Freeman for
settlement purposes.
The final pre-trial conference will be held on January 25, 2019, at 12:00 p.m. in
Courtroom 17C. The parties must confer and make their pre-conference submissions as
required by the Pre-Trial Scheduling Order (Docket Entry No. 91).
SO ORDERED.
Dated: New York, New York
September 27, 2018
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
MIS HIJOS MSJ
VERSION SEPTEMBER 25, 2018
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?