Sarikaputar et al v. Veratip Corp. et al

Filing 132

OPINION & ORDER re: 124 MOTION for Summary Judgment: For the reasons set forth above, the Court hereby DENIES Defendant Bronstein's motion for summary judgment. This case is now ready for trial. The Parties should submit a joint status re port within seven days of the issuance of this Opinion indicating how they would like to proceed, how long they anticipate the trial lasting, and a proposed schedule for any pre-trial motions. (Signed by Judge Andrew L. Carter, Jr on 8/7/2020) (jwh)

8/7/2020
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PARANEE SARIKAPUTAR, individually and
on behalf of other similarly situated, et al.,
Plaintiffs,
17-CV-814 (ALC)

-v.-

OPINION & ORDER

VERATIP CORP. ET AL.,
Defendants

ANDREW L. CARTER, JR., United States District Judge:
Plaintiffs Paranee Sarikaputar, Phouviengsone Sysouvong, Supunnee Sukasawett,
individually and on behalf of others similarly situated, and Vinai Patan and Wipaporn Sittidej
(collectively, “Plaintiffs”) bring this action against Veratip Corp., J Akira LLC, ThaiNY
Restaurant LLC, Ninety-Nine Plus Corp., Perapong Chotimanenophan, Shue-Lee Cheng Li,
Chardenpong Oonapanyo, 9999 Midtown Corp., and Michael P. Bronstein (collectively,
“Defendants”) alleging violations of the Fair Labor Standards Act (“FLSA”), New York Labor
Law (“NYLL”), and New York General Business Law. Defendant Bronstein (“Defendant”)
moves for summary judgment. For the reasons set forth below, Defendant’s motion is DENIED.
BACKGROUND
Plaintiffs were employed by Defendants—a group of restaurants, corporations, and
individuals—in various capacities between November 1, 2011 and December 25, 2016. See
Complaint (“Compl.”) (ECF No. 1) at ¶¶ 40, 117. Plaintiffs allege various willful and unlawful
employment policies, patterns, and practices. See id. at ¶1. These include failure to pay a spreadof-hours, failure to provide employees with time of hire notices and paystubs, and retaliation for

complaining of inadequate pay. Id. at ¶¶41–47. The Complaint also alleges that Defendants failed
to compensate Plaintiffs for overtime, failed to consistently provide Plaintiffs breaks, and required
Plaintiffs to work during the breaks that were provided. Id. at ¶¶53–64. Bronstein is alleged to be
an owner/operator defendant who, along with his co-owners, shared employees, assigned work
and work stations to employees, paid employees through a corporate defendant, and participated
in the restaurant industry as partners and a unified operation. Id. at ¶39.
The Parties agree that Mr. Bronstein is a certified public accountant, see Rule 56.1
Statement (“56.1 Statement”) (ECF No. 128) at ¶1, but agree on little else about his employment.
The Parties dispute whether Bronstein ever met or spoke to any plaintiff. Compare 56.1 Statement
at ¶3 (“Bronstein has never met any plaintiff or spoken to any plaintiff.”), with Counterstatement
to Rule 56.1 Statement (“Counterstatement”) (ECF No. 130) at ¶3 (“Bronstein spoke with
employees, including plaintiffs, to instruct them how to perform their job duties.”). The Parties
dispute whether Bronstein has ever had any role, power, or authority in the operation or
management of any Defendant restaurant. Compare 56.1 Statement at ¶9 (“Bronstein has never
been involved or had any role, power, or authority in the operation or the management of any
aspect of any defendant restaurant or any restaurant in his entire life, including without limitation,
J Akira.”), with Counterstatement at ¶9 (“Bronstein was a part-owner of J Akira LLC, kept the
books and records of J Akira LLC, prepared the employee payroll for J Akira LLC, was responsible
for ensuring that employees of J Akira LLC and ThaiNY Restaurant LLC complied with the
Alcoholic Beverage Control law, and supervised and instructed employees, including plaintiffs, in
the performance of their job duties.”). The Parties dispute whether Bronstein determined the rate
or method of payment for any Plaintiff. Compare 56.1 Statement at ¶13 (“Bronstein has never
determined the rate or the method of payment of any plaintiff or any other employee at any

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defendant restaurant.”), with Counterstatement at ¶13 (“Bronstein prepared the payroll for J Akira
LLC.”). And finally, the Parties dispute whether Bronstein ever set the work schedule for any
Plaintiff. Compare 56.1 Statement at ¶15 (“Bronstein has never set the work schedule for any
plaintiff or any other employee at any defendant restaurant.”), with Counterstatement at ¶15
(“Bronstein determined what tasks employees would perform, and when, on a moment-to-moment
basis when he was present at the restaurant.”). The Parties do agree that Bronstein never
interviewed, hired, or fired any Plaintiff. See 56.1 Statement at ¶22.
Plaintiffs filed their Complaint on February 2, 2017. ECF No. 1. Defendant Bronstein
moved for judgment on the pleadings and the Court denied his motion because Plaintiffs’
allegations were plausible and the Court could make a reasonable inference that Bronstein was one
of Plaintiffs’ employers. See Opinion & Order (ECF No. 61) at 5. After discovery, Bronstein filed
a motion for summary judgment on February 18, 2020. ECF Nos. 124–128. Plaintiff replied on
March 10, 2020. ECF Nos. 129–131. To date, Defendant has not replied even though Defendant’s
reply was due by March 17, 2020. The Court deems Defendant’s motion fully briefed.
LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine issue as to any material fact
and “the moving party is entitled to a judgment as a matter of law.” Cortes v. MTA New York City
Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986)) (quotation marks omitted); see also FED. R. CIV. P. 56(a). Material facts are facts
that may affect the outcome of the case. Anderson, 477 U.S. at 248. An issue of fact is “genuine”
when a reasonable fact finder can render a verdict in the nonmoving party’s favor. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

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genuine issue for trial.”) (quotation marks omitted). “[T]he court’s responsibility is not to resolve
disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving
ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11 (2d Cir. 1986).
“The party seeking summary judgment has the burden to demonstrate that no genuine issue
of material fact exists.” Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (quoting Marvel
Characters v. Simon, 310 F.3d 280, 285–86 (2d Cir. 2002)). If the moving party meets its burden,
the burden shifts to the non-moving party to bring forward “specific facts showing a genuine issue
for trial.” Gen. Ins. Co. of Am. v. Starr Indem. & Liab. Co., No. 14-CV-7354, 2016 WL 4120635,
at *4 (S.D.N.Y. July 22, 2016) (citation omitted); see also FED. R. CIV. P. 56(c). The non-moving
party “may not rest upon mere allegation[s] or denials of his pleadings,” Anderson, 477 U.S. at
259. Rather, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), and these facts must be
“admissible in evidence.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (quoting FED. R.
CIV. P. 56(e)). “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment,” Anderson, 477 U.S. at
247–48 (emphasis in original), and “[i]f the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. at 50 (citations omitted).
DISCUSSION
Defendant’s motion turns on whether he qualifies as an “employer” for purposes of the
FLSA and NYLL.1 If he does, then he may be subject to liability; if he does not, then the Court

“The standard for determining employment under the NYLL is ‘nearly identical’ to the standard
used under the FLSA.” Opinion & Order at 4 n.2 (citing Olivera v. Bareburger Group LLC, 73
F.Supp.3d 201, 207 (S.D.N.Y. 2014)).
1

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must dismiss the claims against him. Employment for FLSA purposes is “a flexible concept to be
determined on a case-by-case basis by review of the totality of the circumstances.” Barfield v. New
York City Health and Hosps. Corp., 537 F.3d 132, 141–42 (2d Cir. 2008). “As the Second Circuit
has recognized, the determination of joint employer status is rarely appropriate to make at the
summary judgment stage, ‘[b]ecause of the fact-intensive character of the determination of joint
employment.’” Hart v. Rick’s Cabaret Intern., Inc., 967 F. Supp. 2d 901, 941 (S.D.N.Y. 2013)
(quoting Barfield, 537 F.3d at 144 (2d Cir. 2008).
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. § 203(d). “The Supreme Court has
emphasized that this is an expansive definition with ‘striking breadth.’” Olvera v. Bareburger
Group LLC, 73 F. Supp. 3d 201, 204 (S.D.N.Y. 2014) (quoting Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 326 (1992)). A plaintiff may have more than one employer, in which case,
“all joint employers are responsible, both individually and jointly, for compliance with all the
applicable provisions of the [FLSA].” 29 C.F.R. § 791.2(a). “[W]hether an employer-employee
relationship exists for purposes of the FLSA should be grounded in ‘economic reality rather than
technical concepts.’” Barfield, 537 F.3d at 141 (quoting Goldberg v. Whitaker House Coop., Inc.,
366 U.S. 28, 33 (1961)). The economic reality test asks “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.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984). There are
also a number of factors that are pertinent to determining whether a person exercises “functional
control” over an employee, including: “(1) whether [the alleged employers’] premises and
equipment were used for the plaintiffs’ work; (2) whether the [subcontractors] had a business that

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could or did shift as a unit from one putative joint employer to another; (3) the extent to which
plaintiffs performed a discrete line job that was integral to [the alleged employers’] process of
production; (4) whether responsibility under the contracts could pass from one subcontractor to
another without material changes; (5) the degree to which [the alleged employers] or their agents
supervised plaintiffs’ work; and (6) whether plaintiffs worked exclusively or predominantly for
[the alleged employers].” Olvera, 73 F. Supp. 3d at 206 (quoting Zheng v. Liberty Apparel Co.
Inc., 355 F.3d 61, 71–72 (2d Cir. 2003)).
There are genuine factual disputes regarding Bronstein’s role in the alleged violations. For
example, Bronstein alleges that he never met or spoke with Plaintiffs; that he had no role in the
operation or management of any Defendant restaurant; and that he did not determine the method
of payment or work schedule for any Plaintiff. Plaintiffs, on the other hand, allege that Bronstein
was a part-owner of J Akira LLC; that he not only spoke with Plaintiffs but instructed them how
to perform their duties; and that he prepared the employee payroll for J Akira LLC and kept the
books and records. The Parties’ affidavits submitted to support their assertions were submitted
under oath and penalty of perjury. At the summary judgment stage, the Court is not supposed to
“weight the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d
Cir. 2006) (citing Anderson, 477 U.S. at 249). When there are dueling affidavits, as there are in
this case, it is inappropriate for the court to weigh the credibility of the affidavits at the summary
judgment stage. See, e.g., Upadhyay v. Sethi, 848 F. Supp. 2d 439, 446 (S.D.N.Y. 2012)
(“Resolving these differing versions of the events into a coherent whole involves assessments of
the parties’ credibility and choosing between conflicting narratives, which the Court is unable to
do solely on the basis of affidavits.”). The question of whether Bronstein is an employer is a mixed

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question of law and fact that should be decided at trial. See Redzepagic v. Hammer, 14-CV-9808,
2017 WL 780809, at *11 (S.D.N.Y. Feb. 27, 2017) (“The question of whether an individual is an
employer under the FLSA is a mixed question of law and fact and individual employer liability is
therefore ‘rarely suitable for summary judgment.’”). Resolving disputes in Plaintiffs’ favor as the
non-moving Party, these factual disputes are genuine because a reasonable fact finder could
conclude that Bronstein was one of Plaintiffs’ employers.
These genuine factual disputes are also material because they will likely affect the outcome
of the case. Indeed, the factual disputes go to the heart of the economic reality test—i.e., whether
Bronstein had the power to hire and fire employees; whether Bronstein supervised and controlled
employees’ work schedules; and whether Bronstein maintained records and accounts for
Defendant restaurants. These disputes could establish Bronstein as either a formal or a functional
employer of Plaintiffs for purposes of the FLSA and NYLL claims. This determination, in turn,
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. Accordingly, the factual
disputes regarding Bronstein’s status as Plaintiffs’ alleged employer are material to this case and
must be decided at trial.
CONCLUSION
For the reasons set forth above, the Court hereby DENIES Defendant Bronstein’s motion
for summary judgment. This case is now ready for trial. The Parties should submit a joint status
report within seven days of the issuance of this Opinion indicating how they would like to proceed,
how long they anticipate the trial lasting, and a proposed schedule for any pre-trial motions.

SO ORDERED.
Dated: August 7, 2020
New York, New York
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___________________________________
ANDREW L. CARTER, JR.
United States District Judge

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