The opinion of the court was delivered by: Hon. Harold Baer, Jr., U.S.D.J.
Plaintiffs, former employees of the Village Den restaurant in Manhattan, brought this case alleging violations of federal and state labor laws by the restaurant and its owners, and now move for partial summary judgment with respect to Defendants' liability. For the reasons discussed below, Plaintiffs' motion is granted in part and denied in part.*fn1
The Village Den, located at 225 West 12th Street in Manhattan, is owned and operated by Twelfth Street Corp. ("Twelfth Street"), a corporation organized under the laws of the State of Delaware. Pl.'s 56.1 Stmt. ¶ 5. Twelfth Street's annual sales exceed $500,000, which qualifies it as "enterprise engaged in commerce" for the purposes of liability under the Fair Labor Standards Act ("FLSA"). See 29 U.S.C. § 203(s)(1)(A)(ii); see also Bowrin v. Catholic Guardian Society, 417 F.Supp.2d 449, 457 (S.D.N.Y. 2006). On February 16, 2007, Defendant Konstantinos Danalis purchased shares in Twelfth Street. Since then, he has been the majority owner and president of the company, and is by his own admission Plaintiffs' "employer," jointly and severally liable with Twelfth Street for any violations of the FLSA. Def.'s 56.1 Stmt. at ¶¶ 7-8, 10-11; see Moon v. Kwon, 249 F.Supp.2d 201, 237 (S.D.N.Y. 2002) (GEL).*fn2
There are four plaintiffs in this litigation.*fn3 Plaintiff Linda Nicholson ("Nicholson") worked as a waitress at the Village Den from November 2007 to January 2009. Pl.'s 56.1 Stmt ¶ 12. She worked five days a week, eight hours a day, except for those days when she stayed late to cover for other employees, which she alleges happened frequently. Pl's 56.1 Stmt. ¶ 10, 13. The parties agree that Nicholson worked 40 hours per week and received a payroll check for 17 hours of work at $4.65 per hour; Defendants allege that she received additional pay in cash.*fn4
Def.'s 56.1 Stmt. ¶¶ 16, 34; Def.'s Opp. Br. at 4. Nicholson also received tips from customers. Pl.'s 56.1 Stmt. ¶ 16.
Plaintiff Maria Miranda ("Miranda") worked as a waitress at the Village Den from November 2008 to February 2009. Miranda worked five days per week, starting at 6:00 a.m.; the parties disagree as to whether Miranda's shift ended at 3:00 p.m. or 4:00 p.m. Pl.'s 56.1 Stmt. ¶ 18. Miranda was paid $2.00 per hour throughout her employment at the Village Den, and also received tips from customers. Id. at ¶¶ 19, 34.
Plaintiff Silvia Sanchez ("Sanchez") was employed by the Restaurant as a cashier for a short period of time in December 2008 and January 2009. Id. at ¶ 20. The parties agree that Sanchez worked 51 hours per week and was paid $8.00 per hour.
Jorge Palapa ("Palapa") worked at the Village Den beginning in 2006, first as a busboy and then as a waiter. The parties dispute Palapa's date of hire, although they agree that Palapa was employed at the restaurant when it was purchased by Danalis on February 16, 2007. Def.'s 56.1 Stmt ¶ 24. Palapa was paid $2.00 per hour for the duration of his employment at the Village Den, and also received tips from customers. Id. at ¶¶ 27, 34. He worked up to seven days a week, and his work day spanned twelve hours on Sundays. Id. at ¶ 27.
Pursuant to Fed. R. Civ. P. 56(c), a district court must grant summary judgment if the evidence demonstrates 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." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities and draw all inferences against the moving party. LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). However, "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris, 550 U.S. 372, 380 (2007).
A.Minimum Wages Under the FLSA and New York Law
Under the FLSA, employers are required to pay their employees specified minimum wages and overtime. 29 U.S.C. §§ 206, 207. Pursuant to the statute, if employees ordinarily receive customer tips in the course of their employment, the employer may take a tip credit. See 29 U.S.C. § 203(m). To avail itself of the tip credit, an employer must notify employees of the law regarding minimum wages and of the employer's intention to take the tip credit, and must permit employees to retain all tips that they receive. Chan v. Sung Yue Tung Corp., 2007 WL 313483, *14 (S.D.N.Y. Feb.1, 2007) (GEL); Chung v. New Silver Palace Restaurant, 246 F.Supp.2d 220, 228-29 (S.D.N.Y. 2003) (AKH). ...