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January 6, 2005.


The opinion of the court was delivered by: WILLIAM PAULEY, District Judge


On September 17, 2004, this Court denied U.S. News & World Report's ("U.S. News") and Mortimer Zuckerman's (collectively, "defendants") motion for summary judgment. See Order, dated Sept. 17, 2004. Specifically, this Court held that there were disputed issues of material fact as to whether Jacqueline Astudillo was covered by the domestic service exemption and thus precluded from recovering overtime pay under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 213(b) (21). See Order at 7. This Court also determined that triable issues of fact exist as to whether U.S. News was Astudillo's employer within the meaning of the FLSA and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. See Order at 8-10.

  U.S. News moves for partial reconsideration of that portion of the September 17, 2004 Order that found a material issue of fact as to whether U.S. News was Astudillo's employer. For the following reasons, U.S. News' motion for reconsideration is denied.

  Rule 6.3 of the Local Rules of the Southern District of New York provides in pertinent part: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Accordingly, a movant must demonstrate that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion, which, had they been considered, "might reasonably have altered the result reached by the court." Consol. Gold Fields v. Anglo Am. Corp., 713 F. Supp. 1457, 1476 (S.D.N.Y. 1989). "The decision to grant or deny the motion for reconsideration is within the sound discretion of the court." See Dietrich v. Bauer, 76 F. Supp. 2d 312, 327 (S.D.N.Y. 1999); AT&T Corp. v. Microsoft Corp., No. 01 Civ. 4872 (WHP), 2004 WL 309150, at *1 (S.D.N.Y. Feb. 19, 2004).

  Although U.S. News filed its motion eleven business days after the September 17, 2004 Order, this Court may nevertheless consider the motion on its merits. See EUA Cogenex Corp. v. Bankers Trust Co., No. 91 Civ. 6912 (KC), 1993 WL 454205, at *1 (S.D.N.Y. Nov. 2, 1993).

  An entity can only be liable under the FMLA and FLSA if it is an "employer" within the meaning of either statute. See 29 U.S.C. § 2611(a) (A) (ii) (I); 29 U.S.C. § 203(d). To determine whether a person or entity is an employer, courts apply an "economic realities test" which considers whether the alleged employer: "(1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (internal quotations omitted). Under the economic realities test, the totality of the circumstances must be considered to "avoid having the test confined to a narrow legalistic definition." Herman, 172 F.3d at 139 (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)). The key question is whether the person or entity "possessed the power to control [the] workers in question." Herman, 172 F.3d at 139.

  U.S. News moves for partial reconsideration arguing, inter alia, that it played a "purely ministerial role in administering plaintiff's benefits" and did not exercise any control over the terms or conditions of her employment. (Memorandum of Law in Support of U.S. News' Motion for Reconsideration, at 3.) Relying on Hatcher v. Augustus, 956 F. Supp. 387, 392 (E.D.N.Y. 1997), U.S. News maintains that its administration of Astudillo's benefits was a ministerial function. (Memorandum of Law in Further Support of U.S. News' Motion for Reconsideration, at 2.) Hatcher makes clear that the mere provision of a payroll service does not make that entity an employer. See 956 F. Supp. at 392. Here, however, U.S. News was more than a payroll service for Astudillo. She requested and received her maternity leave from U.S. News pursuant to its family leave policy. (Plaintiff's Rule 56.1 Statement ¶ 20, Ex. 3; Defendants' Rule 56.1 Statement ¶ 20; Deposition of Jacqueline Astudillo, dated Oct. 30, 2003, at 195, 239-41.) That indicates some control over Astudillo's employment by U.S. News. See Johnson v. A.P. Prods., Inc., 934 F. Supp. 625, 628-29 (S.D.N.Y. 1996) ("Employer," under FLSA and FMLA, "extends to all those who controlled in whole or in part [plaintiff's] ability to take a leave of absence and return to her position").

  Hatcher is also distinguishable because it involved employment of the plaintiff through an independent contractor franchisee with full responsibility for labor relations issues. See 956 F. Supp. at 392-93. Therefore, the Hatcher court determined that the defendant-franchisor "was not responsible for compensating the plaintiff for his hourly wage or salary, or providing any employment benefits." 956 F. Supp. at 392.

  Because no single factor is determinative under the economic realities test, this Court may accord weight to the fact that U.S. News granted Astudillo's FMLA leave. See Herman, 172 F.3d at 139; Johnson, 934 F. Supp. at 629. Since all reasonable inferences must be resolved in Astudillo's favor, see Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001), this Court cannot conclude that there are no material issues of fact concerning whether U.S. News was her employer under the FLSA and FMLA.


  For the foregoing reasons, defendant U.S. News' motion for partial reconsideration of this Court's September 17, 2004 Order is denied.



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