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Joseph Daniels v. 1710 Realty LLC

August 17, 2011


The opinion of the court was delivered by: Ramon E. Reyes, Jr., United States Magistrate Judge:


Plaintiff Joseph Daniels ("Daniels" or "plaintiff") brought this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206-207, 216(b), against defendant 1710 Realty LLC ("1710") for unpaid minimum and overtime wages. Daniels also seeks damages for not being paid weekly in violation of Section 191 of the New York Labor Law. The parties have consented to my jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (Docket No. 25.) A bench trial was held on April 6, 2011. (Docket No. 39). This constitutes the Court's findings of fact and conclusions of law.


I. The Parties

1710 owns and operates an apartment building located at 1710 Union Street, Brooklyn, New York (the "Building"). (Docket No. 33, Joint Pretrial Order, Stipulated Facts ¶ 1). Wolf Sicherman ("Sicherman") is a member of 1710. (Sicherman Testimony, Tr. at 81:12-17).*fn1

Sicherman has been managing residential property since 1978. (Id. at 82:4-7). Through his management company, Sicherman currently manages between eighteen and twenty residential apartment buildings, all but one of which are located in Brooklyn. (Id. at 126:25-127:4). The residential apartment buildings that Sicherman's company manages range in size from eight to one hundred forty residential units, and some of which are comparable in size to the Building. (Id. at 89:16-23; 112:10-15; 127:5-11).

On April 15, 1994, Daniels began working for Sicherman's management company as a handyman. (Daniels Testimony, Tr. at 7:13-18). At the time, Sicherman's management company utilized the services of "The Super Agency," which provided several handymen who were able to perform various jobs for Sicherman's residential properties. (Sicherman Testimony, Tr. at 81:20-82:3). As a handyman, Daniels' responsibilities included handling minor repairs, such as fixing leaky faucets and door locks, and replacing air valves. (Id. at 82:23-83:25). Daniels performed these services on an as-needed basis for a number of Sicherman's company's properties. Daniels was paid an hourly rate for his services. (Id. at 82:23-83:12). Daniels worked as a handyman for Sicherman's management company for about four months. (Daniels Testimony, Tr. at 7:19-21).

Sicherman hired Daniels as a superintendent for the Building in August 1994. (Daniels Testimony, Tr. at 7:13-24; Sicherman Testimony, Tr. at 81:21-82:3; 87:20-88:24). Daniels employment was terminated in August 2009. (Daniels Testimony, Tr. at 14:16-20; Joint Pretrial Order, Stipulated Facts ¶ 3).

II. The Building and Daniels' Duties

The Building is a four-storey apartment building with thirty-nine residential and approximately seven commercial units. (Daniels Testimony, Tr. at 37:21-38:15).*fn2 Daniels only had responsibility with respect to the residential units. (Id.). Daniels' primary duties were to sweep and mop the Building, and to take care of the garbage on a daily basis. (Id. at 17:18-18:4; Itzkowitz Testimony, Tr. at 136:11-15; Sicherman Testimony, Tr. at 111:18-112:3). Daniels was also required to do minor plumbing and electrical repairs, and minor plastering and painting. (Daniels Testimony, Tr. at 18:5-7; Sicherman Testimony, Tr. at 112:3-9; Itzkowitz Testimony, Tr. at 136:16-17).

With respect to plumbing, Daniels admitted that beginning in 2006 all major repairs and renovations were handled by outside contractors. (Daniels Testimony, Tr. at 60:9-61:15; 62:10-63:12; 64:15-65:16). Although he could not recall with any specificity how often he performed minor plumbing repairs, Daniels conceded that on average it could have been as infrequent as once every three months. (Id. at 65:5-16).

With respect to painting, Daniels did minor touch-ups in the apartments as a result of water damage only in cases of emergency. (Id. at 52:6-53:12). Daniels could not recall how often he did such touch-ups, except to say that it was not a regular occurrence. (Id. at 52:4- 53:13). Plaintiff also performed painting touch-ups in the Building's hallways, but could not recall how often he did so. (Id. at 53:14-54:19). Daniels also repainted the Building's lobby periodically, but conceded that this job only took him between two hours to two days each time. (Id. at 55:17-57:21).*fn3 Daniels alternately claimed that he repainted the lobby every year, or once every three years. (Id. at 55:17-56:11). Plaintiff also repainted the hallways of each floor, and it took him two hours to do so. (Id. at 56:19-57:18). He could not recall, however, how often he performed this task. (Id. at 57:19-21).

With respect to plastering, Daniels testified that he only did minor plastering work, and that most plastering was performed by outside contractors. (Id. at 70:6-71:12). Plaintiff could not recall whether he did any plastering work within the last three years of his employment with 1710. (Id.).

III. Daniels' Work Hours

Daniels testified that his supervisor Max Itzkowitz ("Itzkowitz"), who he knew as "Marthy," once told him in 1995 that his work hours were from 8:00 a.m. to 6:00 p.m. on weekdays. (Id. at 42:16-43:10). Daniels admitted that he sometimes began his day at 8:30 a.m., and ended as early as 5:00 p.m., or started before 8:00 a.m. and ended after 6:00 p.m. (Id. at 17:1-6; 71:18-25; 72:1-8; 74:1-17). Regardless, when plaintiff returned to his apartment at the end of his day, he was free to do whatever he wanted and that time was his own. (Id. at 74:18-75:5). In response to a leading question, Daniels testified that he ...

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