The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Ronnie Wade commenced this action pro se
alleging violations of the Fair Labor Standards Act ("FLSA"), 29
U.S.C. § 201 et seq. , and New York Labor Law
("NYLL") § 198, et seq. Plaintiff asserts that he
was not paid wages and overtime compensation by Defendants, and seeks
$41,945.00 in compensation plus liquidated damages. See Compl.
¶ 1, dkt. # 1. Presently before the Court are Plaintiff's motion
for partial summary judgment, dkt. # 26, and Defendants' cross-motion
for summary judgment seeking to dismiss Plaintiff's case. Dkt. # 34.
On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). That is, "[s]ummary judgment is appropriate only if, after drawing all permissible factual inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." O'Hara v. National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)). When considering cross-motions for summary judgment, a court "'must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Hotel Employees & Rest. Employees Union, Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation , 311 F.3d 534, 543 (2d Cir. 2002)(quoting Heublein, Inc. v. United States , 996 F.2d 1455, 1461 (2d Cir. 1993)). "[N]either side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it . . . [and] a district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. , 996 F.2d at 1461.
Inasmuch as there are cross-motions for summary judgment, the Court will provide an overview of each side's factual assertions, and then discuss the application of the facts as they pertain to each motion in the Discussion section, below.
a. Defendants' Factual Assertions *fn1
Woodland Commons is an apartment complex located in Stone Ridge, New York. The property consists of six buildings each containing eight apartments. The property was previously owned by Woodland Trust. Bradley B. Davis and Richard B. Davis were the sole trustees of Woodland Trust. On January 9, 2007, Woodland Commons, LLC was formed. Ownership of the Woodlands Commons property was thereafter acquired by Woodland Commons, LLC. Bradley Davis and Richard Davis are the sole members of Woodland Commons, LLC.
On April 1, 2005, Plaintiff applied for the position of maintenance worker at Woodland Commons. He was hired and began work for Woodland Trust in April of 2005. Plaintiff continued in this capacity working for Woodland Commons, LLC after it purchased Woodland Commons apartments. Plaintiff was hired to work for Woodland Trust as a W-2 employee, working at the gross rate of $400.00 biweekly. Plaintiff was never a contractual employee, and instead worked as a salaried employee for Woodland Commons and then Woodland Commons, LLC. All Woodland Commons paychecks were issued biweekly.
Plaintiff worked at the rate of $400.00 biweekly until, at Plaintiffs request, Woodland Trust provided him with additional work at which time his gross salary was increased to $1,120.00 biweekly. Plaintiff was eventually relieved of this additional responsibility during the pay period ending on June 6, 2008, and his gross salary was then adjusted to $600.00 biweekly. Plaintiff remained at this salary until his arrest and incarceration on March 4, 2009. Each year, Plaintiff was provided a federal tax W-2 Wage and Tax Statement setting forth his yearly income and withheld taxes.
Plaintiff's job duties included the performance of general duties around Woodland Commons including but not limited to snow removal, lawn care and mowing, heating and cooling maintenance, plumbing, and general repair work. Plaintiff was also responsible for work at various hours of the day including fixing heating, air conditioning, lock-outs, and snow removal. His main responsibility was responding to no heat or no hot water complaints and various odd jobs, and his primary job duty was to remain "on call" for emergency maintenance situations. Plaintiff was provided a cellular telephone and tenants at Woodland Commons were provided the number in case of emergencies.
Turtle Rock Apartments is an apartment complex located in New Paltz, New York consisting of four buildings each containing eight apartments. The property is owned by Turtle Rock Trust. Richard Davis and Bradley Davis are the sole trustees of Turtle Rock Trust. Turtle Rock Trust has a separate federal tax identification number and bank account from Woodland Trust and Woodland Commons, LLC. At the time Plaintiff was hired to work as a maintenance worker at Woodland Commons, Turtle Rock Apartments had repair and maintenance work performed by an independent contractor. However, this contractor stopped performing work at Turtle Rock Apartments shortly after Plaintiff began work at Woodland Commons. Plaintiff asked that he be allowed an opportunity to bid on the various maintenance work that needed to be performed at Turtle Rock Apartments, which he was allowed to do. In doing so, Plaintiff would evaluate specific jobs and submit a price for the work to be performed.
Beginning in April 2005, Plaintiff performed tasks from time to time throughout Turtle Rock Apartments as an independent contractor. *fn2 He was not paid hourly for his work at Turtle Rock Apartments, but rather charged Turtle Rock Trust a fee for the services he provided. For the independently contracted work at Turtle Rock Apartments, payment was made as requested by Plaintiff. Defendants contend that Plaintiff was in control of his own potential profit or loss based upon what jobs he chose to undertake at Turtle Rock Apartments, and Turtle Rock Trust did not require Plaintiff to perform any of the work requested. Moreover, Plaintiff could and did refuse to perform work at Turtle Rock Apartments. While Plaintiff did perform various tasks for Turtle Rock Trust over a period of years prior to his arrest and incarceration, he was never required to do so and at times other independent contractors were used. Turtle Rock Trust paid Plaintiff for services rendered and provided him with a yearly federal tax Form 1099-MISC statement showing the amount of money paid to him for his services.
Defendants contend that Plaintiff was never entitled to overtime because his hours at Woodland Commons did not exceed 40 in any given week and he was an independent contractor for the duties performed on behalf of Turtle Rock Trust. Defendants note that when Plaintiff was paid by either Woodland Trust/Wood Commons, LLC or Turtle Rock Trust, or when his payment information was reported on federal tax W-2 Wage and Tax Statements and Form 1099-MISC statements provided to Plaintiff, he did not object or complain that he was underpaid, not paid the proper amount, or paid in an improper form.
b. Plaintiff's Factual Assertions *fn3 In early April 2005, Plaintiff answered a newspaper advertisement seeking a full-time maintenance worker. He called the listed phone number and spoke to Richard B. Davis. Davis asked Plaintiff to come to Woodland Commons apartments in Stone Ridge, New York to fill out an application. After several days, Plaintiff received a call from Davis who asked him to come to an interview at Woodland Commons apartments on April 11, 2005. Plaintiff was interviewed by Davis and was told he would be paid $13.00 an hour, and "[t]hat his compensation would be split because he would eventually be required to work at Turtle Rock Apartments" in New Paltz, New York. Plaintiff was hired that day but "was not told that he was being hired by either Woodland or Turtle Rock." Plaintiff understood that he was "simply hired by Richard B. Davis." *fn4
Plaintiff commenced his employment on April 11, 2005. He was told by Richard B. Davis and Rena Kowliski, Defendants' manager, "that he was expected to work at least 40 hours a week and that he could work as many hours as he wanted." He understood that he was required to report to Kowliski and received work orders from her to do work at both apartment complexes. Plaintiff was told "he would be placed on a payroll and the company would submit $400.00 to the payroll company on a bi-weekly basis," and that at the end of each month he would receive payment from Turtle Rock Trust for the amounts owed for his remaining wages.
Plaintiff was "expected to be on call twenty-four hours a day to address tenants['] complaints in emergency situations, such as no heat, no air conditioning, lock-outs, and snow removal during the winter months, etc." Plaintiff was provided a cellular telephone which he was required to have with him at all times, and he understood that ...