The opinion of the court was delivered by: Hurley, District Judge
Plaintiffs Elizabeth Relyea ("Relyea") and Jill Michel ("Michel") (collectively "Plaintiffs") filed the present suit against Defendant Carman, Callahan and Ingham, L.L.P. ("Defendant") seeking overtime pay pursuant to the Fair Labor Standards Act of 1938 ("FLSA") and New York State Labor Law. Defendant has moved for summary judgment and Plaintiffs have filed an opposition. For the reasons set forth herein, the Court DENIES Defendant's motion for summary judgment.
The material facts, drawn from the parties' Local 56.1 Statements and submitted evidence, are undisputed unless otherwise noted. Plaintiffs both reside in Suffolk County, New York. Defendant is a law firm organized under the laws of New York and doing business in Nassau County. At all times relevant to the current dispute, Plaintiffs were employees of Defendant.
Relyea worked for Defendant from June 2003 to September 2003 as a real estate closer. Relyea's primary task was performing closings for Defendant's client Mortgage Concepts. Michel worked for Defendant from December 2001 to May 2003, also as a real estate closer. Michel worked exclusively out of the Mortgage Concepts's office. Plaintiffs both reported to Craig Augi, an attorney who supervised the closing department, and Greg Carman, a partner at the firm.
Plaintiffs were responsible for preparing documents prior to closings, overseeing and attending closings, distributing checks at the closing, and completing closing documents after closings. (See Def.'s Rule 56.1 Statement ¶ 28.) Plaintiffs attended real estate closings as the banks' representative, on behalf of Defendant. Once a real estate closing had been assigned to Plaintiffs, they would receive the file and pertinent information from the bank that Defendant was representing. Plaintiffs would then draft necessary documents, review title reports to ensure that title was clear, and would confirm that the title reports contained the requisite information. If there were any problems, Plaintiffs would notify an attorney or speak directly to the bank.
Plaintiffs' duties also included: recognizing deficiencies before closing, such as bankruptcy, and then consult an attorney; determining whether the closing documents and policy information matched; preventing a closing if all of the proper paperwork had not been completed; reviewing documentation and paperwork prior to closing; attending most closings, on their own; and exercising their discretion to disburse the checks to the parties at closing if all of the prerequisites had been met and all the paperwork had been completed. Defendant also notes that "closers were required to troubleshoot any problems that arose at the closings." (Id. ¶ 45.)
Plaintiffs filed the Complaint on October 17, 2003, asserting that Defendant was required by law to pay overtime at the statutory rate of time and a half. Plaintiffs asserted that they worked more than fifty hours per week during the many weeks of their employment. Defendant moved for summary judgment on November 30, 2005, asserting the affirmative defense that Plaintiffs are exempt employees under FLSA.*fn1 Plaintiffs opposed the motion, and Defendant submitted a memorandum of law in reply.
I. Summary Judgment Standard
Summary judgment is generally appropriate where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994) (quoting Fed. R. Civ. P. 56(c)). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying those materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has offered some evidence that no genuine issue of material fact remains to be tried, the burden shifts to the non-moving party to provide similar evidence indicating that a genuine, triable issue remains. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed. R. Civ. P. 56(e). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Nevertheless, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, ...