infliction of emotional distress claim has expired because
Plaintiff filed her suit more than a year after she left Defendants'
house. (Defs.' Mem. in Supp. Mot. to Dismiss at 10.) Plaintiff,
however, claims that Defendants continued to harass and threaten her well
into December 2000. (Pl.'s Mem. in Opp'n Defs.' Mot. to Dismiss at 12.)
I find that Plaintiff has demonstrated an issue of material fact as to
whether Defendants continued to threaten Plaintiff well into the one-year
limitations period and whether the threats were part of a continuous
pattern of harassment and intimidation. Therefore, Plaintiff's
allegations are sufficient to support a cause of action for intentional
infliction of emotional distress and not time-barred.
Conversion is defined as "any unauthorized exercise of dominion or
control over property by one who is not the owner of the property which
interferes with and is in defiance of a superior possessory right of
another in the property." Meese v. Miller, 436 N.Y.S.2d 496, 500
(1981). In situations where the defendant's initial possession was
lawful, the three-year statute of limitations begins to run when the true
owner becomes aware that the possessor's actions are hostile to her
rights. See D'Amico v. First Union Nat'l Bank, 728 N.Y.S.2d 146, 173
(2001). Such hostility may be demonstrated by the true owner's demand
for the return of her property and the possessor's refusal to return it.
See MacDonnell v. Buffalo Loan, Trust and Safe Deposit Co., 193 N.Y. 92,
Defendants move to dismiss Plaintiff's conversion claim with respect to
her passport as time-barred. (Defs.' Mem. in Supp. Mot. to Dismiss at
12.) Defendants argue that the statute of limitations began to run when
Defendants initially refused to return Plaintiff's passport in November
1998, more than one year before Plaintiff filed the instant suit on
November 13, 2000.
I decline to dismiss Plaintiff's conversion claim with respect to her
passport as untimely, however, because I conclude that the statute of
limitations did not begin to run until November 1999, when Defendants
refused for a second time to return the passport. Defendants' initial
possession of Plaintiff's passport was necessary to secure her visa and
make other travel arrangements and thus was lawful. (Compl. ¶ 14.)
Therefore, the statute of limitations for Plaintiff's conversion claim
did not begin to run until Plaintiff realized Defendants' possession of
the passport was hostile. See D'Amico, 728 N.Y.S.2d at 173. When
Plaintiff initially asked for the return of her passport in November
1998, Defendants did not actually refuse her request. (Id. ¶ 30.)
Instead, Defendants claimed the passport was "lost." (Id.) Because
Plaintiff did not realize that Defendants did not intend to return her
passport, she did not perceive Defendants' possession as hostile. One
year later, however, Plaintiff again asked for her passport and
Defendants refused her request. (Id. ¶ 86.) Thus, only after
Defendants' second refusal to return the passport did Plaintiff recognize
that Defendants' possession was hostile. Therefore, I find that the
cause of action for conversion of the passport began to accrue only when
Defendants denied Plaintiff's second request for her passport.
Accordingly, because Plaintiff filed on November 13, 2000, less than one
year after Defendants' second refusal to return the passport, I conclude
Plaintiff's conversion claim with respect to her passport is not
Defendants seek to dismiss Plaintiff's conversion claim with respect to
her mail because the Complaint alleges that Defendants committed
conversion by not returning "other property" without specifically
identifying the missing property. (Defs.' Mem. in Mot. to Dismiss at
17-18.) Because she does not allege ownership of "specific and
identifiable property," Defendants argue that Plaintiff has not stated a
valid claim for conversion under New York law. Van Brunt v. Rauschberg,
799 F. Supp. 1467, 1473 (S.D.N.Y. 1992).
It is well-established, however, that a complaint must survive a motion
to dismiss unless "it appears beyond doubt, even when the complaint is
liberally construed, that the plaintiff can prove no set of facts which
would entitle him to relief." Jaghory v. N.Y. State Dep't of Educ.,
131 F.3d 326, 329 (2d Cir. 1997). The function of the pleadings is to
provide the other party with notice of the factual basis upon which the
claims presented in the complaint rest. See Van Alstyne v. Ackerly
Group, Inc., 8 Fed. Appx. 147, 154 (2d Cir. 1997). Here, it is clear
from the facts alleged in the Complaint that "other property" refers to
Defendants' alleged misappropriation of Plaintiff's mail. (Compl. ¶
Plaintiff alleges that although her mother had reassured her that she
had sent several letters, Plaintiff did not receive any letters during
her time in New York. (Compl. ¶ 83.) As a result, Plaintiff
suspected that Defendants were denying her the mail addressed to her that
came to Defendants' apartment. (Id. ¶ 84.) Her suspicions were
confirmed when she discovered a letter from her mother hidden in the
kitchen drawer. (Id.)
Mail addressed to the Plaintiff clearly belonged to her. Thus,
Plaintiff has established that she has a superior possessory right to her
mail. See Meese, 436 N.Y.S.2d at 500. Defendants' alleged refusal to
deliver Plaintiff's mail interfered with Plaintiff's property right.
Based on Plaintiff's allegations, I find that Plaintiff has stated a
valid claim for conversion.
F. Overtime Compensation
Under the Fair Labor Standards Act ("FLSA"), workers receive overtime
compensation of 1 1/2 times their hourly rate for each hour in excess of
40 hours per week. 29 U.S.C. § 207(a)(1). FLSA, however, excludes
certain classes of employees from receiving such overtime compensation.
With respect to domestic employees, the statute states, in relevant
Maximum hour requirements. The provisions of section
7 [29 U.S.C. § 207] shall not apply with respect
to . . . any employee who is employed in domestic
service in a household and who resides in such
29 U.S.C. § 213(b)(21).
Although FLSA does not define "domestic service," C.F.R. § 552.3
clarifies that "domestic service employment" consists of "services of a
household nature performed by an employee in or about a private home
(permanent or temporary) of the person by whom he or she is employed."
C.F.R. § 552.3. The regulation offers several illustrations of such
employees, including "cooks . . . maids, housekeepers, governesses,
nurses . . . laundresses . . . [and] caretakers." C.F.R. § 552.3.
Thus, under federal law, Plaintiff would be considered a "domestic
servant" and therefore would not be entitled to overtime compensation.
FLSA does not, however, pre-empt state regulation of wages and overtime
if the state's standards are more beneficial to workers. Section 218(a)
of FLSA specifically states:
No provision of this chapter or of any order
thereunder shall excuse noncompliance with any Federal
or State law or
municipal ordinance establishing a
minimum wage higher than the minimum wage established
under this chapter or a maximum workweek lower than
the maximum workweek established under this chapter.
29 U.S.C.A. § 218. See also Pettis Moving Co., Inc., v. Roberts, 784
F.2d at 441 ("Section 218(a) of the FLSA explicitly permits states to set
more stringent overtime provisions than the FLSA." (citation omitted));
Overnite Trans. Co. v. Tianti,