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Koljenovic v. Marx

United States District Court, E.D. New York

February 6, 2014

HAJIT KOLJENOVIC and SALIT KOLJENOVIC, Plaintiffs,
v.
DAVID MARX, FBD REALTY, LLC; 7 MDR OF QUEENS, INC.; 8 MDR OF QUEENS, INC.; RMDM OF NEW YORK - 87, INC., Defendants

For Halit Koljenovic, collectively, on behalf of himself and all those similarly siturated, Plaintiff, Counter Defendant: Karl J. Stoecker, Law Offices of Karl J. Stoecker, Mineola, NY.

For David Marx, FBD Realty, LLC, 7 MDR of Queens, Inc., 8 MDR of Queens, Inc., RMDM of New York-87, Inc., Defendants, Counter Claimants: Richard L. Yellen, LEAD ATTORNEY, Frank Jonathan Hutton, Richard L. Yellen & Associates, LLP, New York, NY; Morris Tuchman, Law Offices of Morris Tuchman, New York, NY.

For 8 MDR of Queens, Inc., FBD Realty, LLC, 7 MDR of Queens, Inc., Counter Claimants: Richard L. Yellen, LEAD ATTORNEY, Richard L. Yellen & Associates, LLP, New York, NY; Morris Tuchman, Law Offices of Morris Tuchman, New York, NY.

For David Marx, RMDM of New York-87, Inc., Counter Claimants: Richard L. Yellen, LEAD ATTORNEY, Richard L. Yellen & Associates, LLP, New York, NY; Morris Tuchman, Law Offices of Morris Tuchman, New York, NY; Frank Jonathan Hutton, Richard L. Yellen & Assoc. LLP, New York, NY.

For David Marx, 8 MDR of Queens, Inc., RMDM of New York-87, Inc., FBD Realty, LLC, 7 MDR of Queens, Inc., Counter Claimants: Richard L. Yellen, Richard L. Yellen & Associates, LLP, New York, NY; Frank Jonathan Hutton, Richard L. Yellen & Assoc. LLP, New York, NY.

OPINION AND ORDER

NINA GERSHON, United States District Judge.

Plaintiffs Halit and Safet Koljenovic bring this action against defendants David Marx and several related corporate entities (collectively, the " Marx entities" [1])

Page 397

seeking to recover overtime compensation and unauthorized wage deductions under the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (" FLSA" ), and the New York Labor Law, § § 160 et seq. Defendants now move for partial summary judgment with respect to plaintiffs' state law claims. For the reasons set forth below, defendants' motion is granted in part and denied in part.

BACKGROUND

I. FACTUAL BACKGROUND

The following facts are undisputed or are construed in the light most favorable to plaintiffs as the non-moving parties.

A. Plaintiffs' employment as building superintendents

Defendant David Marx owns and operates several multiple-unit residential apartment buildings in Queens, either directly or through one or more of the corporate entities named as defendants in this action. Plaintiffs, two brothers, worked as building superintendents in buildings owned and operated by the Marx entities at various times dating back to the mid-1990s. Plaintiffs contend tat they routinely worked substantial amounts of overtime while employed by defendants, but were not paid time and a half their regular rate of pay for all hours worked in excess of forty hours per week.

Halit Koljenovic began working for the Marx entities in 1995. Initially, he was employed by RMDM 87 of New York - 87, Inc. as the building superintendent of a 32-unit residential apartment building located at 132-64 Pople Avenue in Flushing, New York (the " Pople Avenue building" ). Then, from approximately 2001 until his termination on or about October 17, 2008, he worked for 8 MDR of Queens, Inc. (" 8 MDR" ) as the building superintendent of a 40-unit residential apartment building located at 145-18 34th Avenue in Flushing (the " 34th Avenue building" ). Halit was the only resident employee. There was also an employee known as a " janitor" who was responsible for the general upkeep of the 34th Avenue building.

Safet Koljenovic was first hired by FBD Realty, LLC in or about 1993 as the superintendent at the 34th Avenue building. He left the company of his own accord after approximately seven years because he was dissatisfied with the terms of his employment. After working as a building superintendent in New Jersey, he again sought employment with the Marx entities after hearing from Halit that the employment conditions there had improved. He was hired in February 2008 by 8 MDR as the building superintendent of the Pople Avenue building, where he worked until his termination on March 13, 2009. There was a part-time porter at that building, but Safet was the only resident employee.

Both Halit and Safet were given the job title of " building superintendent." Their duties included preparing and painting apartments for new tenants, responding to tenants' calls and complaints, attending to basic plumbing, electrical and other repairs, and maintaining the boiler. They were also expected to be available to attend to the tenants' emergencies whenever such events arose, including on nights and weekends. Halit alleges that as a result he worked approximately 80 hours per week,[2] while Safet affirms that he worked " around the clock." In exchange, Halit and Safet each received a net salary of $

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400 per week, which was not dependent on the amount of hours worked. As additional compensation, they were each provided with a rent-free apartment in the building in which he worked, as ...


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