Ramirez et al v. Abayev et al
Filing
41
OPINION re: 29 FIRST MOTION to Dismiss Against Moving Defendants. filed by Naba Enterprises, Inc., Abba Builders Inc., Slavik Abayev. The Moving Defendants' motion to dismiss is denied. It is so ordered. (Signed by Judge Robert W. Sweet on 2/21/18) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------x
17 Civ. 8688
RUDY RAMIREZ and ROGER ALEMAN,
OPINION
Plaintiffs,
-againstABBA BUILDERS INC., NABA ENTERPRISES, INC.,
SLAVIK ABAYEV a/k/a STEVEN ABBA, 220 COSTER,
LLC, MIRON MARKUS and BORIS MARKUS,
Defendants.
------------------------------------------x
APPEARANCES:
Attorneys for Plaintiffs
HUDSON VALLEY JUSTICE CENTER
19 Court Street, Suite 400
White Plains, NY 10601
By:
Maureen Hussain, Esq.
Robert McCreanor, Esq.
Attorneys for Defendants
SINAYSKAYA YUNIVER, P.C.
710 Avenue U
Brooklyn, NY 11233
By:
Irene Sinayskaya, Esq.
DOC#;
DATE FILED:
Sweet, D.J.
Defendants Abba Builders , Inc.
Enterprises, Inc.
("Abba Builders") , Naba
("Naba") , Slavik Abayev a/k/a Steven Abba
("Abba" and, collectively, the "Moving Defendants") have moved
pursuant to Federal Rule of Civil Procedure 12(b) (6) to dismiss
the complaint of Plaintiffs Rudy Ramirez
("Ramirez") and Roger
Aleman ("Aleman," and, together with Ramirez , the "Plaintiffs"),
which alleges violations of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201 , et seq. and New York Labor Law
("NYLL") Article 19 § 650, et seq. Based upon the conclusions
set forth below, the Moving Defendants' motion is denied.
Prior Proceedings
On November 8 , 2017, Plaintiffs filed their complaint,
which alleges violations of the FLSA and NYLL. See Compl .
~~
31 -
40 , Dkt. No. 1.
On December 27 , 2017, Moving Defendants filed the instant
motion to dismiss. Dkt. No. 29 . The motion was heard and marked
fully submitted on February 15, 2018.
1
Facts
The complaint sets forth the following facts, which are
assumed true for the purpose of this motion to dismiss. See Koch
v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
Abba is the Chief Executive Officer of Abba Builders and
Naba. Compl. i
12. Defendants Boris Markus ("Boris"), and Miron
Markus ("Miron") are the owners of 220 Coster, LLC ("220 Coster
LLC" and, together with Boris, Miron, and the Moving Defendants,
the "Defendants"), which owns the premises at 220 Coster Street
in the Bronx, New York ("220 Coster"). Compl. i
13. During the
period covered by the Plaintiffs' complaint, March 2015 to March
2016, Defendants made all relevant decisions regarding
Plaintiffs' wages, working conditions, and employment status,
including the ability to hire or fire Plaintiffs, set wages, and
retain time and wage records. Compl. i i 15-16.
Around March 2015, Ramirez and Alemen were hired by
Defendants as construction workers to assist in building a
commercial building at 220 Coster. Compl. i i 19-20. From that
March until around November 2015, Abba, Boris, and Miron
instructed Plaintiffs on tasks to be performed and provided
2
Plaintiffs with equipment necessary for their work. Compl.
~
21.
During this time period, Plaintiffs regularly worked from 7AM to
4:30PM, Monday through Saturday, with, at most, one half-hour
break per day. Compl.
~
22 . Ramirez was paid $40 an hour, and
Aleman was paid $25 an hour; neither received a premium rate for
hours worked in excess of 40 in a work week. Compl.
~~
23-25.
Starting around November 2015, Defendants instructed
Plaintiffs that the construction timeframe had to be moved
faster and that Plaintiffs would be paid for their expedited
labor upon completion of 220 Coster. Compl.
~~
25-26. From then
until about March 2016, Plaintiffs worked upwards of 16 to 18
hours a day, sometimes 7 days a week, and did not receive any
compensation during those months. Compl.
~~
26-27.
During their period of employment, Plaintiffs received
neither a wage notice in either English or Spanish nor weekly
~~
wage stubs or statements. Compl.
28-29.
The Applicable Standard
On a Rule 12(b) (6) motion to dismiss, all factual
allegations in the complaint are accepted as true and all
3
inferences are drawn in favor of the pleader. Mills v.
Molecular Corp., 12 F.3d 1170, 1174
Polar
(2d Cir. 1993). A complaint
must contain "sufficient factual matter,
accepted as true,
to
'state a claim to relief that is plausible on its face.'"
Ashcroft v.
Iqbal,
Corp. v. Twombly,
556 U.S.
662,
663
(2009)
550 U.S. 544, 555
(quoting Bell Atl.
(2007)). A claim is facially
plausible when "the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal,
(quoting Twombly,
550 U.S. at 556).
556 U.S. at 663
In other words,
the factual
allegations must "possess enough heft to show that the pleader
is entitled to relief." Twombly,
550 U.S. at 557
(internal
quotation marks omitted).
While "a plaintiff may plead facts alleged upon information
and belief 'where the belief is based on factual information
that makes the inference of culpability plausible,'
such
allegations must be 'accompanied by a statement of the facts
upon which the belief is founded.'" Munoz-Nagel v. Guess,
No. 12 Civ. 1312
2013)
(ER),
2013 WL 1809772, at *3
(quoting Arista Records, LLC v.
Doe 3,
(S.D.N.Y. Apr.
604 F.3d 110,
(2d Cir. 2010)); Prince v. Madison Square Garden,
2 d 372,
384
30,
120
4 2 7 F. Supp.
(S.D.N.Y. 2006); Williams v. Calderoni,
4
Inc.,
11 Civ.
3020
(CM), 2012 WL 691832, at *7
(S.D.N.Y. Mar. 1, 2012)). The
pleadings, however, "must contain something more than
. a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action." Twombly, 550 U.S. at 555
(citation and internal quotation omitted).
The Motion to Dismiss the Complaint is Denied
Moving Defendants have moved to dismiss Plaintiff's
complaint. Their primary argument is straightforward: the
Defendants are not Plaintiffs' employers because Plaintiffs were
subcontractors and Moving Defendants, as the general contractor,
did not have the power to hire and fire,
supervise and control,
or determine pay and maintain pay records for Plaintiffs. See
Mem. of Law in Supp. of Defs.' Mot. to Dismiss the Compl.
("Defs.' Mem.")
4-7, Dkt. No. 29. To support their conclusion,
Moving Defendants have submitted an affidavit from Oscar Melara,
the owner of a subcontracting company, that Moving Defendant
contend was in fact Plaintiffs' legal employer (the "Melara
Affidavit"). Id. at 7; see Declaration of Oscar Melara dated
December 21, 2017, Dkt. No. 29-2.
5
While the Moving Defendants' factual argument may
ultimately win them this case, it cannot win them this motion.
At the motion to dismiss stage, "a district court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits,
. documents incorporated by reference
in the complaint[,]" and documents "where the complaint relies
heavily upon its terms and effect, thereby rendering the
document 'integral' to the complaint." DiFolco v. MSNBC Cable
L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010)
(internal citations and
quotation marks omitted); see also Leon v. Port Wash. Union Free
Sch. Dist., 49 F. Supp. 3d 353, 358
(E.D.N.Y. 2014)
("The Court
also notes that this is a motion to dismiss, and as such, the
review is limited to the pleading itself, and does not consider
matters outside the pleadings."). Without opining on the merits
of Moving Defendants' stated facts,
it is evident that the
evidence presented from the Melara Affidavit fits under none of
the permitted categories described above. Therefore, it is
appropriately not considered at this time.
1
1
"If any other material is considered, the court must
convert the motion to dismiss into a motion for summary
judgment." Armand v. Osborne, No. 11 Civ. 4182 (NGG) (CLP), 2014
WL 723381, at *3 (E.D.N.Y. Feb. 24, 2014) (citing Fed R. Civ. P.
12(d )) . The Court declines to do so.
6
Looking rather to what is contained in Plaintiffs'
complaint "on its face," what has been pleaded is sufficient to
survive dismissal at this stage. Id. To state a plausible FLSA
overtime claim, a complaint needs to "provide sufficient detail
about the length and frequency of their unpaid work to support a
reasonable inference that they worked more than forty hours in a
given week." Nakahata v. N.Y. Presbyterian Healthcare Sys.,
Inc., 723 F.3d 192, 201 (2d Cir. 2013). "To state an FLSA
minimum wage claim, it is sufficient for a plaintiff to allege
facts about her salary and working hours, such that a simple
arithmetical calculation can be used to determine the amount
owed per pay period." Tackie v. Keff Enters. LLC, 2014 WL
4626229, at *3 (S.D.N.Y. Sept. 16, 2014) . 2
These requirements are met here. Plaintiffs allege that,
during their approximately one year of employment working at 220
Coster, each named Defendant monitored and controlled
Plaintiffs' wages, working condition, and employment status. See
Compl.
~~
15-16, 20-21. The named Defendants are alleged as
principals and owners of the corporate Defendants. Compl.
2
~~
12,
As the requirements as between FLSA and NYLL on the
respective claims are the same, the "conclusion below about the
FLSA allegations apply equally to the NYLL state law claims."
Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 n.5 (2d Cir.
2013) .
7
14. Plaintiffs' complaint details the kinds of work Plaintiffs
performed for Defendants. See Compl. 1 20. It describes hours
and days worked that regularly amounted to over forty hours per
week, overtime hours for which Plaintiffs allege they were
uncompensated. See Compl. 11 22-27. It alleges that Plaintiffs
did not receive wage notices of stubs. See Compl.
~~
28-29.
Taken together, the complaint's allegations "sufficiently
describe the pattern of [Plaintiffs'] o v ertime, but
uncompensated work," along with the other labor law violations.
Leon, 49 F. Supp. 3d at 358
(distinguishing plaintiff's
allegation that she "regularly worked forty hours per week, and
provided sufficient estimates of how much additional time she
worked each week-namely 1 1/2 to 2 hours per week" from
"threadbare" allegations previously rejected b y the Second
Circuit); see Mumin v. Uber Techs.,
532
(E.D.N.Y. 2017)
Inc., 239 F. Supp. 3d 507,
(denying motion to dismiss for overtime
wages claim when plaintiff alleged he worked "an average of 6
days a week for 10 to 12 hours per day, amounting to 60 to 72
hours per week, from August 2014 to the present").
Finally, judging the complaint on its face, Moving
Defendants' contention that the complaint does not plausibly
allege that Plaintiffs were Defendants' employees is rejected.
8
"[I]n the context of a motion to dismiss, district courts in
this Circuit have
. found that complaints sufficiently
allege employment when they state where the plaintiffs worked,
outline their positions, and provide their dates of employment."
Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85,
91
(internal quotation marks and citations omitted)
(2d Cir. 2013)
(describing,
when providing district courts guidance as to whether a
plaintiff sufficiently alleged she was an employee of a
defendant company, that courts should treat "employment for FLSA
purposes as a flexible concept" and that if a person alleges
that she "was an employee in multiple places" it "provided a
reasonable inference that the relationship was one covered by
the statute"); see Zhong v. Aug. Aug. Corp., 498 F. Supp. 2d
625, 629 (S.D.N.Y. 2007)
(rejecting motion to dismiss for FLSA
claims because "[a]t the very least, the pleading is sufficient
to enable [defendant] to conclude that [plaintiff] is asserting
that an employee-employer relationship existed between the
parties"). Moreover, Plaintiffs go beyond "boilerplate
allegations" of an employer relationship, specifically alleging
that Defendants instructed Plaintiffs to perform additional
overtime labor for which Plaintiffs would ultimately be paid,
although such payment could not be made at that time. N.Y.S.
Court Clerks Ass'n v. Unified Court Sys. of the State of N.Y.,
9
25 F. Supp. 3d 459, 471
(S.D.N.Y. 2014)
(citation omitted); see
Compl. 11 25-26. Again, Defendants might ultimately prove that
only some, or perhaps none, of the Defendants actually had the
authority to make, or even actually made, requests like these of
Plaintiffs. However, Plaintiffs' complaint has at least
plausibly alleged an employer-employee relationship and, having
plausibly stated their claims, each of their allegations against
each Defendant is entitled to survive this dismissal motion.
10
'
. .
Conclusion
For the foregoing reasons , the Mov i ng Defendants ' motion to
dismi ss is denied .
It is so ordered .
New York, .,...,NJ
February?/, 2018
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