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Christopher Tyo v. Lakeshore Hockey Arena

April 10, 2013

CHRISTOPHER TYO, PLAINTIFF,
v.
LAKESHORE HOCKEY ARENA, INC. AND BRUCE RIZZO, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Siragusa, J. This Fair Labor Standards Act case is before the Court on Plaintiff=s motion, Sep. 7, 2012, ECF No. 23, for partial summary judgment. For the reasons stated below, Plaintiff=s application is granted.

FACTUAL BACKGROUND

As the Second Circuit noted in Glazer v. Formica Corp., 964 F.2d 149 (2d Cir. 1992):

When a party has moved for summary judgment on the basis of asserted facts supported as required by Fed. R. Civ. P. 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.

Id. at 154. In this case, Plaintiff followed W.D.N.Y. Loc. R. Civ. P. 56(a)(1) by filing a statement of undisputed material facts. Defendant, who opposes the motion, was required by the same rule to file a response to each statement of material fact in Plaintiff=s statement. Id. R. 56(a)(2). AEach numbered paragraph in the moving party=s statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.@ Id. Defendants have filed no opposing statement of facts and, contrary to the requirement of the local rule, have not filed a memorandum of law opposing Plaintiff=s motion. W.D.N.Y. Loc. R. Civ. P. 7(a)(2)(A). Consequently, the Court accepts Plaintiff=s statement of facts in its entirety, having found that the statements are supported by evidentiary proof in admissible form:

1. This complaint was filed on May 5, 2011 and asserts claims under the Fair Labor Standards Act, 29 U.S.C. '207, etc., and the New York Labor Law to recover unpaid overtime compensation. This action also asserts a claim for illegal retaliation under '215(a)(3) of the FLSA and '215(2) of the Labor Law.

2. Plaintiff brings this motion for partial summary judgment with respect to his claims for unpaid overtime and liquidated damages.

3. Tyo was hired on or about July 19, 2010 by Bruce Rizzo to conduct maintenance and repairs at Lakeshore Hockey Arena. His hourly rate was $21.50 per hour. In mid-December 2010, Tyo was given a raise to $22.50 per hour. Tyo Decl. at &2, &4.

4. In addition to his hourly rate of pay, Tyo received benefits including health insurance, dental insurance, two weeks= paid vacation, one weeks= personal time, and use of a company truck. With Rizzo=s approval, Tyo used some of the vacation days for pre-existing commitments in the late summer and fall of 2010. Whenever he used vacation days, this two-week Abank@ was charged for the hours he used and appeared on his paycheck as Avacation.@ Tyo did not use any of the personal days. Tyo Decl. at &3, &13; Rizzo Tr. at 20.

5. Tyo=s job duties included putting in the ice for the season, maintenance and repair of the Zamboni, the ice edger and the ice surface, minor ice refrigeration maintenance and repairs, minor building maintenance and repairs, and some communication of information to other Zamboni drivers. Tyo Decl. at &5.

6. Tyo=s work was directly supervised by defendant Rizzo, who hired him, set his work hours and rate of pay, and handled all of his work-related issues. Tyo Decl. at &6.

7. On several occasions, Tyo worked more than forty hours per week. These hours were documented on Tyo=s timesheets. Tyo Decl. at &7.

8. Tyo was not compensated at time-and-one-half for the overtime hours he worked. Rizzo told him that he was not going to pay for hours over 40 in a work week. He told Tyo that he would implement a Acomp time@ system that would track his hours over 40 and Tyo could use those hours the following summer as Avacation time.@ If Tyo took time off before the summer, Rizzo ...


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