Perez v. Merrick Deli & Grocery, Inc. et al, No. 1:2013cv05166 - Document 33 (E.D.N.Y. 2015)
Court Description: ORDER granting in part and denying in part 30 Motion for Partial Summary Judgment. Ordered by Judge I. Leo Glasser on 7/8/2015. (Russell, Alexandra)
Download PDF
<![CDATA[
Perez v. Merrick Deli & Grocery, Inc. et al Doc. 33 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x EDGAR PEREZ, MEMORANDUM AND ORDER Plaintiff, 13 Civ. 5166 (ILG) (J O) - against MERRICK DELI & GROCERY, INC., ET ANO., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff Edgar Perez1 brings this action against Merrick Deli & Grocery, Inc. (“Merrick”) and Hussain S. Mused, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 20 1 et seq., and the New York Labor Law (“NYLL”), Art. 6 § 190 et seq., Art. 19 § 650 et seq. Plaintiff m oves for partial sum m ary judgm ent, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the m otion is GRANTED in part and DENIED in part. BACKGROU N D The following facts are undisputed, unless otherwise noted.2 From J une 11, 20 12 through May 5, 20 13, Plaintiff worked as a sandwich m aker and custom er service associate at the Merrick Deli & Grocery in Laurelton, New York. Plaintiff’s Statem ent of Facts (“SOF”) ¶¶ 1, 3; Com pl. ¶ 5. Defendant Mused is a shareholder and officer of Merrick. See Plaintiff’s Ex. 8 (Defendants’ Interrogatory Responses 9-10 ). Mused 1 Plaintiff filed this lawsuit on behalf of him self and all others sim ilarly situated, but has not moved for conditional certification of a collective action under the FLSA. 2 Defendants failed to com ply with Local Rule 56.1(b), which requires a party opposing sum m ary judgment to subm it a counterstatement to the m oving party’s Local Rule 56.1 statem ent of undisputed facts. Although Defendants did not file a counterstatem ent, they subm itted two affidavits which controvert statements m ade in Plaintiff’s 56.1 Statem ent. In light of this evidence, the Court will not deem the facts asserted in the Plaintiff’s 56.1 Statement adm itted and will consider the full record in ruling on Plaintiff’s m otion. 1 Dockets.Justia.com supervised Plaintiff, set his work schedule, and determ ined when and how m uch he would be paid. SOF ¶ 2. Plaintiff asserts that from J une 11 through October 20 12, he worked 84 hours each week and received a weekly cash salary of $ 60 0 , and from October 20 12 3 through May 5, 20 13, he worked 66 hours each week and received a weekly cash salary of $ 515. Id. ¶¶ 5-9. He claim s Defendants failed to com pensate him for overtim e. Id. ¶¶ 10 -11. Defendants dispute this and have subm itted affidavits from Mused and J orge Vasquez, a Merrick em ployee who referred Plaintiff to the job. See Dkt. No. 31, Attachm ent Nos. 1 & 2. According to the affidavit of Mused, Plaintiff was offered and accepted a weekly salary of $ 60 0 , which com pensated him for 40 hours at an hourly rate of $ 8.50 , plus 20 overtim e hours at a prem ium rate of tim e and a half. Mused Aff. ¶¶ 3-7. Vasquez states that he translated the term s of Mused’s offer into Spanish, and Plaintiff acknowledged his understanding in English and Spanish before accepting the job. Vasquez Aff. ¶ 3. Furtherm ore, Mused asserts that Plaintiff’s hours and weekly salary rem ained the sam e throughout his em ploym ent. Mused Aff. ¶ 7. It is undisputed that Defendants failed to m aintain records of Plaintiff’s em ploym ent and did not provide him with weekly wage statem ents. SOF ¶¶ 12-14, 18. Plaintiff com m enced this action on Septem ber 17, 20 13. Dkt No. 1. On October 24, 20 14, he m oved for Partial Sum m ary J udgm ent on (1) the FLSA and NYLL claim s for failure to pay overtim e wages and for liquidated dam ages and (2) the NYLL claim for failure to provide wage statem ents. Dkt. No. 30 . Additionally, he asserts that both Merrick and Mused can be held liable as his em ployers under the FLSA and NYLL. 3 Plaintiff does not indicate when in October 20 12 his hours and wages changed. 2 Defendants filed their Opposition on Novem ber 19, 20 14, and Plaintiff replied on Decem ber 5, 20 14. Dkt. Nos. 31 and 32. LEGAL STAN D ARD Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. . . . A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (internal quotations and citations om itted). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a m otion for sum m ary judgm ent, the court m ust “construe the facts in the light m ost favorable to the nonm oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quotation om itted). D ISCU SSION I. D e fe n d an ts ’ Liability U n d e r th e FLSA an d N YLL Plaintiff argues that Mused and Merrick qualify as his em ployers and are both subject to liability under the FLSA and NYLL. The FLSA broadly defines “em ployer” as “any person acting directly or indirectly in the interest of an em ployer in relation to an em ployee.” 29 U.S.C. § 20 3(d). The sim ilarly circular definition of “em ployer” under the NYLL em braces any business or individual “acting as [an] em ployer.” NYLL § 651(6). “Courts have interpreted the definition of ‘em ployer’ under the [NYLL] coextensively 3 with the definition used by the FLSA.” Ferm in v. Las Delicias Peruanas Rest., Inc., No. 14-CV-0 559, 20 15 WL 1285960 , at *15 (E.D.N.Y. Mar. 19, 20 15). The Second Circuit “has treated em ploym ent . . . as a flexible concept to be determ ined on a case-by-case basis by review of the totality of the circum stances.” Irizarry v. Catsim atidis, 722 F.3d 99, 10 4 (2d Cir. 20 13). In determ ining whether a defendant qualifies as an “em ployer” under the FLSA and NYLL, courts consider “whether the [defendant] (1) had the power to hire and fire the em ployees, (2) supervised and controlled em ployee work schedules or conditions of em ploym ent, (3) determ ined the rate and m ethod of paym ent, and (4) m aintained em ploym ent records.” Id. at 10 4-0 5. There is no question that Merrick was Plaintiff’s em ployer and is subject to liability under the FLSA and NYLL. As for Mused, the undisputed record shows that he supervised Plaintiff, controlled his work schedule, and set his hourly wages and m ethod of paym ent. In light of the factors outlined above, the Court finds that Mused qualifies as Plaintiff’s em ployer under the FLSA and NYLL and m ay be held individually liable. II. FLSA an d N YLL Claim s fo r Ove rtim e W age s an d Liqu id ate d D am age s 4 Under the FLSA and NYLL, em ployees m ust be paid one-and-a-half tim es their regular hourly rate for every hour over 40 worked each week. See 29 U.S.C. § 20 7(a)(1); N.Y. Com p. Codes R. & Regs. tit. 12, § 142– 2.2. The laws provide for the recovery of unpaid overtim e com pensation and liquidated dam ages. 29 U.S.C. § 216(b); NYLL § 663(1). “There is a rebuttable presum ption that an em ployer’s paym ent of [a] weekly salary represents com pensation for [only] the first 40 hours of an em ployee’s work 4 It is undisputed that Merrick is a business engaged in interstate com m erce which had annual gross revenues of at least $ 50 0 ,0 0 0 during the period of Plaintiff’s em ploym ent. SOF ¶ 3. Thus, Plaintiff was a covered em ployee under the FLSA. See 29 U.S.C. §§ 20 7(a); 20 3(s)(1)(A). 4 week.” Benitez v. Dem co of Riverdale, LLC, No. 14-Civ-70 74, 20 15 WL 80 30 69, at *2 (S.D.N.Y. Feb. 19, 20 15). This presum ption m ay be rebutted by evidence that the em ployer and em ployee agreed that the weekly salary would include com pensation for overtim e hours. Giles v. City of New York, 41 F. Supp. 2d 30 8, 317 (S.D.N.Y. 1999). Defendants subm itted affidavits asserting that Plaintiff agreed to and did receive a weekly salary which com pensated him for 20 hours of overtim e at a prem ium rate. Plaintiff denies there was any such agreem ent or com pensation for overtim e received by him . Thus, a dispute of m aterial fact exists which precludes sum m ary judgm ent on Plaintiff’s FLSA and NYLL claim s for overtim e wages and liquidated dam ages. III. N YLL Claim fo r Failu re to Pro vid e W age State m e n ts The NYLL requires em ployers to provide a statem ent with every paym ent of wages listing, am ong other item s, the em ployee’s regular rate of pay, deductions, allowances, and overtim e rate of pay. NYLL § 195(3). It is undisputed that Defendants did not provide Plaintiff with wage statem ents. Accordingly, sum m ary judgm ent is granted on this claim . CON CLU SION For the foregoing reasons, Plaintiff’s Motion for Partial Sum m ary J udgm ent is GRANTED as to the NYLL claim for failure to provide wage statem ents. The Motion is DENIED as to the FLSA and NYLL claim s for unpaid overtim e wages and liquidated dam ages. SO ORDERED. 5 Dated: Brooklyn, New York J uly 8, 20 15 _ / s/ _ _ I. Leo Glasser Senior United States District J udge 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
