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United States District Court, S.D. New York

March 15, 2004.

PUSHA TOPO, Plaintiff, -against- ASHWIN DHIR and NISHA DHIR, Defendants

The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge


Plaintiff Pushpa Topo brought this action against defendants Ashwin and Nisha Dhir alleging violations of federal and state minimum wage and overtime laws.*fn1 Plaintiff alleges that for approximately two and a half years, she was employed by defendants as their live-in domestic worker, caring for their baby and cleaning their home for 119 to 133 hours per week, with virtually no days off. Plaintiff alleges that, in return, defendants paid her at the rate of approximately $0.22 per hour for the first eight months of employment, and a total of approximately $50.00 for the remaining seventeen months of work. Plaintiff asserts claims under, among other statutes and common law principles, the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Alien Tort Claims Act, and New York Labor Law §§ 190 et seq., as well as for conversion, claiming unjust enrichment and quantum meruit under New York and New Jersey law. Page 2

On April 18, 2003, Ms. Tope filed a motion for partial summary judgment contending that on there is no genuine dispute (1) as to, the existence of an employee/employer relationship under FLSA or New York Labor Law; and (2) that defendants are liable in quantum meruit and for unjust enrichment under New York and New Jersey law. The Dhirs moved for partial summary judgment on the issue of plaintiff's claims under the Alien Tort Claims Act and New York conversion law. The Dhirs also argued that Ms. Topo's FLSA claims were time-barred by the statute of limitations, and moved to amend their answer to include the affirmative defense of the Statute of Frauds. On December 3, 2003, Magistrate Judge Ellis issued a Report and Recommendation granting the Dhirs' motion to amend their answer to permit them to assert the Statute of Frauds defense, and denying the parties' motions for partial summary judgment in their entirety.

  On December 22, 2003, plaintiff submitted Objections to that portion of the Report and Recommendation that denied her motion for partial summary judgment on three issues: (1) plaintiff's status as an "employee" and defendants' status as "employers" under FLSA; (2) the parties' same relationships under New York Labor Law; and (3) defendants' liability under the common law theory of quantum meruit. Neither party filed any objection-to those portions of Magistrate Judge Ellis's Report and Recommendation denying defendants' motion for partial summary judgment, or that portion of the Report and Recommendation denying plaintiff's motion for partial summary judgment as to defendants' liability on her unjust enrichment claim. Under Rule 72(b), Fed.R. Civ. P., I review those portions of Magistrate Judge Ellis's Report and Recommendation to which objection has been made de novo. As set forth below, I Page 3 adopt the Report and Recommendation in all but one respect: I grant plaintiff's motion for summary judgment on the issue of plaintiff's status as an employee under FLSA and the New York Labor Law.

  The Parties' Employment Status

  Plaintiff moved for summary judgment to establish that she was an employee, and defendants her employers, under FLSA and New York Labor Law. Defendants opposed her motion on two grounds, neither of which addresses the issue of status as employee and employer. First, with respect to the status under FLSA, defendants claim that defendants are exempt from complying with both FLSA's minimum wage and maximum hour requirements on the ground that FLSA exempts workers involved in domestic service from both provisions. (I note that plaintiff does not appear to be claiming that the maximum hour requirements of FLSA apply; I also note that defendants are incorrect that the domestic service exemption cited in their papers applies to FLSA's minimum wage provisions: the "domestic service" exemption of Section 213(b)(21) is an exemption only from the maximum hour provisions of FLSA.) Second, with respect to the status under New York Labor Law, defendants claim they are exempt because that statute's definition of "employee" exempts part-time babysitters. See New York Labor Law § 651.

  Although defendants did not claim an exemption under FLSA's equivalent "casual babysitter" exemption, the Magistrate Judge found that there was a genuine issue of material fact as to whether plaintiff's services came within the "part-time" or "casual" babysitter exemption of either FLSA or New York Labor Law. The Magistrate Judge Page 4 therefore did not address the issue of whether plaintiff was an employee and defendants were employers under either statute.

  Both FLSA and New York Labor Law define "employee" and "employer" broadly. See Ansoumana v. Gristedes Operating Corp., 255 F. Supp.2d 184 (S.D.N.Y. 2003); Settlement Home Care, Inc., v. Industrial Board of Appeals of Department of Labor, 151 A.D.2d 580, 581, 542 N.Y.S.2d 346, 347-48 (2d Dep't 1989). Thus, FLSA defines "employee," with certain exceptions, as "any individual employed by an employer." 29 U.S.C. § 203(e)(1). "Employ" is defined as "to suffer or permit to work." Id. at § 203(g). New York Labor Law defines "employee" as "including any individual employed or permitted to work by an employer in any occupation," § 651(5), although it excludes from its definition, as set forth below, "part-time babysitters."

  In their Answer to plaintiff's Second Amended Complaint, defendants "admit that defendants employed plaintiff as their live-in domestic worker and that plaintiff provided child-care services to their daughter." (Answer to the Preliminary Statement in the Second Amended Complaint) Defendants also admit that "Plaintiff Pushpa Topo was an employee of the defendants at their apartment in New York, New York and at their apartment in Secaucus, New Jersey." (Answer to the Second Amended Complaint at ¶ 3) These formal judicial admissions by defendants resolve the issue of whether plaintiff is an employee, and defendants her employers under both FLSA and the New York Labor Law.

  Notwithstanding defendant's concession that plaintiff was their live-in domestic employee, the Report and Recommendation recommends denial of summary judgement on the issue of the parties' employment relationship on the ground that there Page 5 are issues as to whether plaintiff falls within, exemptions to both FLSA and the New York Labor Law that essentially exempt part-time or casual babysitters from those statutes minimum wage provisions. Defendants, however, have never asserted that the FLSA exemption applies — not in their Answer, not in their motion to amend their Answer, and not even in opposition to plaintiff's motion for partial summary judgment. Defendants did not assert the application of the New York Labor Law carve-out or exemption in their Answer or in their motion to amend their Answer, but raised it for the first time only in their opposition to partial summary judgment. As a result, defendants may not now assert as a defense plaintiff's supposed status as merely a "casual" or "part-time" babysitter. See Wright v. Aargo Security Systems. Inc., 99 Civ. 9115, 2001 WL 91705, at *2 (S.D.N.Y. Feb. 2, 2001). Some affirmative defenses arise only after a plaintiffs deposition is taken or other discovery of plaintiff proceeds. For example, defendants' efforts to amend their Answer to raise the Statute of Frauds defense, which fairly may be said to have crystallized for the first time as a result of the plaintiff's deposition. In contrast, the FLSA and labor law exemptions were uniquely within the knowledge of the defendants from the outset of this litigation in December 2001 and it is now too late for them to assert the exemption. Plaintiff's deposition was taken in November of 2002 — well over a year ago — and defendants have waited too long to seek an amendment of the Answer. I conclude that the defendants have waived the defense.

  Even if the defendants had not waived the defense, I find that the defendants have failed to create a genuine issue of material fact with respect to the application of the exemptions. I conclude this even though I read the submissions and the Page 6 record with every inference in defendants' favor. Both the state and federal minimum wage statutes are construed narrowly so as to permit as many individuals as possible to take advantage of their benefits, and exceptions to the statutes are to be construed narrowly. See, e.g., Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003); Bilvou v. Dutchess Beer Distributors Inc., 300 F.3d 217, 222 (2nd Cir 2002), and the cases cited therein.

  FLSA's "casual" babysitter exemption, according to the implementing regulations, is meant to apply to teenagers or others who have other sources of income and "are usually not dependent upon the income from rendering such services for their livelihood." 29 C.F.R. § 552.104. The regulations further define "casual" (when applied to babysitting) as "employment which is irregular or intermittent" 29 C.F.R. § 552.5. Although state regulations and legislative history do not elucidate the New York statute's use of "part-time babysitter," I do not find any support for the proposition that the New York exemption is to be construed more broadly than the federal exemption. There is general support for giving FLSA and the New York Labor Law consistent interpretations. See. e.g., Ansoumana, 255 F. Supp.2d at 189 ("Because New York Labor Law and the FLSA embody similar standards with respect to the legal issues before me, I will consider the federal law in deciding [the issue].") and cases cited therein.

  In this case, the undisputed facts establish that plaintiff's employment by defendant was more than "irregular or intermittent." It is undisputed that plaintiff was, by defendants' own description and admission, defendants' "live-in domestic worker." Plaintiff testified as to her regular and extensive hours worked for the defendants. She testified that she worked from 6:30 a.m. to 11:30 p.m., essentially seven days a week. Page 7 (See Deposition Transcript of Pushpa Topo at 124, 125.) Defendants have failed to come forward with evidence to rebut Ms, Topo's deposition testimony, which establishes that her services were regular and not intermittent. Defendants' version of their relationship with plaintiff is not inconsistent. Defendants acknowledge that they paid plaintiff $150 per week starting in approximately May 1997, and gave her a raise to $200 per week starting in September 1998, when Ms. Dhir started full-time employment. (See Deposition Transcript of Nisha Dhir at 36 and 38; Deposition Transcript of Ashwin Dhir at 48.) Although the exact number of hours that plaintiff worked for defendants may be in dispute, it is not disputed that she was a live-in domestic worker, and that at least during the period when defendant Ashwin Dhir was traveling in India, plaintiff worked approximately 10 hours a day caring for defendants' daughter.

  I find that these undisputed facts are sufficient to rule as a matter of law that the services provided by plaintiff to defendants were neither irregular nor intermittent, and that neither the FLSA nor the state exemption for "casual" or "part-time" babysitters applies. Defendants' bald assertions in opposition to plaintiff's motion, unsupported by any citation to the factual record, affidavits, or other evidence in this case, and in many instances contradicted by their own admissions and testimony, are insufficient to create a triable issue of fact.

  Plaintiff's Quantum Meruit Claim

  I find that there are genuine issues of material fact precluding summary judgment on plaintiff's quantum meruit claim. To recover in quantum meruit, plaintiff must establish: (1) the performance of services in good faith; (2) the acceptance of the services by the person to whom they are rendered;(3) an expectation of compensation Page 8 therefore; and (4) a determination of the reasonable value of the services rendered. See Moore v. Hall 532 N.Y.S, 2d 412, 414 (2d Dep't 1988).

  Although plaintiff seeks summary judgment only as to liability and not damages, in the case of a claim of a quantum meruit, the inquiries are intertwined. Thus, a determination of the reasonable value of the services rendered by plaintiff requires a finding as to the services rendered. Similarly, whether plaintiff had an expectation of compensation, depends on more particularized determination of precisely what services were provided. `The question of whether a party had a reasonable expectation of compensation for services rendered is a matter for the trier of fact to determine based on the evidence before it." See Moors, 532 N.Y.S.2d at 414. Therefore, I deny summary judgment on plaintiff's quantum meruit claim.

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