Mancero v 242 E. 38th St. Tenants Corp.

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Mancero v 242 E. 38th St. Tenants Corp. 2014 NY Slip Op 30253(U) January 28, 2014 Sup Ct. NY County Docket Number: 100721/11 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/29/2014 1] INDEX NO. 100721/2011 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 01/29/2014 ,SUPREME COURT OF THE STATE OF NEW YO~K NEWlYORK COUNTY BARBARAJAFF~ J.S.Q. Justice { Index Number: 100721/2011 MANCERO, ERICH INDEX NO. ~;....;...;...._;.i~t/ -11-: MOTION DATE _ _ __ vs 242 EAST 38TH STREET TENANTS MOTIOMSltQ. NO. -.-a.........- Sequence Number : 003 REARGUEMRNT/RECONSIDERATION ;~7n.e:~g paper$, numbered 1 t o _ , wel'e ,..d onlhis mofion.tolfor _ _ _ _ _ _ _- . . . , _ ; . - - - . i " - - INo(s) ¢._ _ _ __ . NOtce of Motion/Order to Show Cause - Affidavits - Exhibits fl~.Aftidavits- E x h i b i t s _ . ; . , . . . . . - - - - - - - - - - - - - r. ¢ ¢~Mffdavlts-· ____________...,_ _....._________ ; ¢ ..·~?:1_.~KONi: ¢....,.;:..._.................................... !"................... ]0 CASE DISPOSED lo OONOTPOSt >l ' ., i INo( ¢)._.'_ _ __ f *C$>- - - - - - [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 12 I -------------------------------------------------------------------------+x ERICH MANCERO and AV A MANCERO, Plaintiffs, Index No. 100721/11 Mot. seq. no. 003 DECISION AND ORDER - against - 242 EAST 38m STREET TENANTS CORP., GROGAN & ASSOCIATES, INC., TIMOTHY C. GROGAN, JOSEPH ROUTON, LAURA SEYEGH and QUYNN C LUONG, Defendants. ---------------------------------------------------------------------------x BARBARA JAFFE, J.: For plaintiffs: Brian K. Robinson, Esq. Law Offices of Brian K. Robinson, P.C. 61 Broadway. Ste. 1030 New York, NY 10006 212-269-2091 For defendants: Alan M. Goldberg, Esq. Rosen, Livingston & Cholst, LLP 275 Madison Ave. New York, NY 10016 212-687-7770 Plaintiffs move pursuant to CPLR 2221 for an order granting them leave to renew and reargue their opposition to defendants' motion for summary judgment, which I granted by written decision dated July 12, 2013. (40 Misc 3d 1213[A]). Defendants oppose. I. RELEVANT BACKGROUND In their complaint, plaintiffs alleged that defendants withheld from plaintiff Erich Mancero overtime wages due to him as superintendent of the cooperative residence located at 242 East 3gth Street in Manhattan. In my decision, I held that section 141-1.4 of the Minimum Wage Order for the Building Services Industry ([12 NYCRR 141-1.4]) does not extend overtime rights to janitors of residential buildings, and observed that, in any event, plaintiffs offered no records establishing the claim to overtime. (NYSCEF 53). [* 3] II. DISCUSSION A. Contentions Plaintiffs argue, as they did in opposing defendants' motion, that the Minimum Wage Order does not prohibit janitors from earning overtime pay, but only prohibits them from being paid overtime at one and one-halftimes the regular rate, thereby permitting overtime at some other rate. They again rely on Edwards v Jet Blue, 21Misc3d 1107(A), 2008 NY Slip Op 51992(U) (Sup Ct, Kings County 2008), in which the court observed that the plaintiff, a ground operations agent and baggage handler who was exempt from regulation under the Fair Labor Standards Act (FLSA), was entitled to overtime at a rate greater than that set forth in an administrative regulation promulgated pursuant to the state Labor Law providing that such employees were entitled to overtime pay at one and one-halftimes the basic minimum hourly rate (12 NYCRR 142-2.2). Plaintiffs now attach the New York State Department of Labor (DOL) opinion letters on which the Edwards court relied, claiming they were previously unobtainable and are therefore newly discovered. In the letters, the DOL advises that employees who are not entitled to overtime pay at one and one-half times the regular rate are entitled to overtime, albeit at a reduced rate. (NYSCEF 59). Plaintiffs also maintain that I erroneously placed on them the burden of providing records and otherwise seek an order amending their complaint by increasing their liquidated damages. (NYSCEF 58, 60, 64). B. Analysis Whether to grant leave to reargue or renew a prior motion rests within the sound 2 [* 4] discretion of the trial justice. (Hines v New York City Tr. Auth., 112 AD3d 528 [1st Dept 2013]; Garcia v Jesuits of Fordham, Inc., 6 AD3d 163, 165 [!51 Dept 2004]). In my discretion, I grant plaintiffs leave to reargue and renew my July 2013 decision and order, and adhere to my prior decision for the foregoing reasons. In Edwards, the court addressed a different class of employee and a different regulation which, in contrast to the Minimum Wage Order in issue here, clearly provides for overtime for FLSA-exempt employees. (21 Misc 3d 1107[A] [regulation allows for overtime for FLSA exempt employees at one and one-halftimes basic minimum hourly rate]). That the court in Edwards found that the plaintiff was entitled to overtime compensation at a higher rate than that provided for in the regulation does not constitute authority for the proposition that plaintiff is entitled to overtime here. Such an interpretation rests on the unreasonable assumption that the DOL provided that residential janitors are not entitled to overtime at the specified rate without providing the rate to which they are entitled. (Cf People v Finnegan, 85 NY2d 53, 58 [1995] ["the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended"]). Moreover, the DOL opinions relied on in Edwards are confined to their "unique facts" (Edwards, at *5), and have no application here. In any event, Edwards does not bind this court. (McKinney's Cons. Laws of NY, Book 1, Statutes § 72[b] [binding force of judicial construction of a statute depends on court rendering it and rank of tribunal in judicial hierarchy; decisions of Court of Appeals are binding on Appellate Division, those of Appellate Division on Supreme Court, and so on down from superior to inferior judicatories]). I thus adhere to my earlier opinion in which I relied on Niemiec v Ann Bendick Realty, 2007 WL 5157027, at *6 n 6 (ED NY 2008). (See also Lee v Kim, 2013 WL 4522581, at *5 [ED 3 [* 5] NY 2013] uanitors not entitled to overtime pursuant to section 141-1.4]). Given this result, I need not address plaintiffs' other arguments. III. CONCLUSION Accordingly, it is hereby ORDERED, that plaintiffs' motion for leave to reargue and renew is granted, and upon reargument and renewal, I adhere to my prior determination granting defendants summary judgment. ENTER: DATED: January 28, 2014 New York, New York 4

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