The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
Plaintiff Martin Raquer, individually and on behalf of others similarly situated, brings claims against defendants Cafe Buon Gusto Corp. and Nasser Ghorchian for failure to pay a minimum wage in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206(a), and the New York Labor Law, N.Y. Labor L. § 652. Defendants deny Raquer's claims, and argue that neither defendant qualifies as Raquer's "employer" under the relevant statutes.
Defendants move for summary judgment on Raquer's claims under Federal Rule of Civil Procedure 56. For the reasons that follow, defendants' motion is granted in part, and denied in part.
From approximately June 2006 to September 2011, Raquer was employed by a restaurant doing business as Cafe Buon Gusto, located at 236 East 77th Street, New York, NY. Pl.'s 56.1 ¶ 1; Defs.' 56.1 ¶ 1. Raquer alleges that he was primarily employed as a deliveryman and packer of cheese. Compl. ¶ 3. He alleges that, between June 2006 and September 2011, he worked six days a week for approximately five hours a day and was paid a flat rate of $10 per day. Compl. ¶¶ 33--35. He further alleges that he was required to perform non-tipped, non-delivery duties- primarily packing cheese-and that these duties constituted a significant portion of his workload. Id. ¶ 48. Defendants deny these allegations. Ans. ¶ 1.
Defendants' summary judgment motion, and the Local Rule 56.1 Statements accompanying the parties' briefs, are focused primarily on whether each of the two defendants qualifies as Raquer's "employer." Defendants assert that Cafe Buon Gusto Corp. was operational from 1990 to 2001. Defs.' 56.1 ¶ 2; Ghorchian Aff. ¶ 4. In 2001, George Gosen prepared and filed a final tax return for Cafe Buon Gusto Corp. with the Internal Revenue Service ("IRS"), the purpose of which was to disband the corporation. David Decl. Ex. 4; Gosen Aff. ¶¶ 7--10. Raquer disputes the authenticity of the final tax return because, in the form produced, it is unsigned. Pl.'s 56.1 ¶ 3. Defendants assert that, since 2001, Cafe Buon Gusto Corp. has not held any assets or bank accounts, done any business, or paid or employed any employees. Defs.' 56.1 ¶¶ 3, 5; Ghorchian Aff. ¶¶ 6, 8; Gosen Aff. ¶ 11. Raquer denies these assertions, relying primarily on that fact that information publicly available from the New York Secretary of State shows that Cafe Buon Gusto has been registered since 1990 and is still currently active. Pl.'s 56.1 ¶¶ 2--3, 5; Faillace Decl. Ex. A. In reply, defendants provide Ghorchian's testimony that this is the result of an oversight on the part of those preparing the paperwork when the corporation was disbanded. Ghorchian Aff. ¶¶ 9--10.
Ghorchian did not personally hire or fire Raquer. Pl.'s 56.1 ¶¶ 6--7; Defs.' 56.1 ¶¶ 6--7.
However, Raquer asserts that Ghorchian had the power to do both. Pl.'s 56.1 ¶¶ 6--7; Galvis Aff. ¶ 6. Ghorchian did not personally hand Raquer his pay, but Raquer asserts that Ghorchian made decisions regarding the employees' pay. Pl.'s 56.1 ¶¶ 8--9; Raquer Aff. ¶ 3; Galvis Aff. ¶ 6. Defendants assert that Ghorchian did not oversee or operate the restaurant on a day to day basis, and that he was not present on a daily basis. Defs.' 56.1 ¶¶ 12, 15; Ghorchian Aff. ¶¶ 14, 21. Raquer disputes this. Pl.'s 56.1 ¶ 11. He testified that Ghorchian came to the restaurant three times a week and gave orders to the waiters and kitchen staff. Raquer Aff. ¶ 2. Raquer also provides an affidavit from another former employee, Jorge Galvis, who asserts that Ghorchian was frequently involved in overseeing the restaurant. Galvis Aff. ¶¶ 3--4, 7--8.*fn2
On November 1, 2011, plaintiff filed the complaint in this action. Dkt. 1. On December
16, 2011, defendants filed an answer. Dkt. 4. On June 14, 2012, the Court denied plaintiff's request for leave to amend the complaint to add additional defendants, because the request was three months overdue. Dkt. 13. On July 27, 2012, plaintiff filed another lawsuit, Raquer v. Safi-G Inc., et al., No. 12-cv-5729 (S.D.N.Y.), against defendants Safi-G Inc., Akhtar Safi SamghAbadi, and Ghorchian, making substantially identical claims to those at issue in this case. On September 4, 2012, the Court denied plaintiff's request to consolidate that action with this one, because it was a clear attempt to circumvent the Court's June 14, 2012 Order. Dkt. 37.
On August 6, 2012, defendants filed this motion. Dkt. 22. On August 22, 2012 plaintiff filed an opposition. Dkt. 27. On August 29, 2012, defendants filed a reply. Dkt. 34.
To prevail on a motion for summary judgment, the movant must "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona College, 521 F.3d 130, 132 (2d Cir. 2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over "facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. ...