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Simone v. Cn Plumbing, Inc.

United States District Court, E.D. New York

March 31, 2014

GIOVANNI DI SIMONE, Individually and on Behalf of all Others Similarly Situated, Plaintiff,

PELTON & ASSOCIATES, PC, Brent E. Pelton New York, NY, Attorneys for Plaintiff.

BOND, SCHOENECK, & KING, PLLC, Mark N. Reinharz Garden City, NY, Attorneys for Defendants.


JOHN GLEESON, District Judge.

Giovanni Di Simone brings this purported class action against CN Plumbing, Inc., Pen Enterprises, Inc., Calogero Noto, and Esther and Philip Ettedgui, claiming that that the defendants failed to pay him and others proper overtime wages, failed to pay prevailing wages, and engaged in an illegal kickback scheme. Di Simone alleges violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and New York Labor Law ("NYLL") §§ 191, 198, 198-b, and also asserts common law claims for breach of contract, unjust enrichment, and quantum meruit. Defendants Pen Enterprises, Inc., and Esther and Philip Ettedgui jointly move this Court to dismiss the amended complaint pursuant to Rule 12(b)(6). For the reasons explained below, defendants' motion is denied.


A. Factual Allegations

Di Simone's amended complaint alleges the following facts, which I assume to be true for purposes of this motion. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

CN Plumbing is a company that installs and repairs sprinkler systems for commercial and residential buildings. Am. Compl. ¶ 18. Pen Enterprises is an air conditioning contractor for commercial and residential buildings focusing primarily on government and public projects. Id. ¶ 19. CN Plumbing has entered into numerous contracts as a subcontractor with Pen Enterprises as the prime contractor to provide plumbing and sprinkler services for New York City public works projects, including projects at the following locations: Bellevue Hospital; Kings County Supreme Court; Callen-Lorde Community Health Center ("Callen-Lorde"); Bronx Psychiatric Hospital; and James Weldon Johnson Community Center (the "Johnson Center"). Id. ¶¶ 20-21. Between August 15, 2005, and March 26, 2013, Di Simone worked as a mechanical sprinkler plumber and steamfitter for CN Plumbing, and in that capacity worked on each of the projects listed above and others.[1] Id. ¶ 26.

Defendant Calogero Noto is the president and owner of CN Plumbing and is responsible for the company's payroll, record keeping and day-to-day operations. Id. ¶ 16. Defendant Philip Ettedgui owns Pen Enterprises. Id. ¶ 17. He and defendant Esther Ettedugi are responsible for Pen Enterprises' payroll, record keeping and day-to-day operations. Id. At all relevant times, the defendant companies had gross revenues in excess of $500, 000, id. ¶ 14, and have been engaged in interstate commerce for purposes of FLSA. Id. ¶ 13.

While working on projects for the defendant companies, Di Simone was typically required to be at a job site from 7:00 a.m. until 3:00 or 3:30 p.m., five days per week, with a 15 to 30 minute meal break. Id. ¶ 29. Before going to a job site, however, Di Simone was sometimes required to report to CN Plumbing's central office (the "central office") at 6:45 a.m. in order to load tools and materials into his truck, which took between 15 and 20 minutes. Id. ¶ 27. When working on prevailing wage projects, specifically Callen-Lorde, Bellevue Hospital, Bronx Psychiatric Hospital, and the Kings County Supreme Court, Di Simone was required to report to the central office one morning per week. Id. When working on non-prevailing wage projects, Di Simone was required to report to the central office every morning before going to the job site. Id. For both prevailing wage and non-prevailing wage projects, Di Simone was required at the end of each workday to go to the central office to report on the work he had completed, make a list of tools and materials needed for the next day, and to clean and unload the truck, which typically took between 15 and 45 minutes. Id. ¶ 28.

Di Simone alleges that he was never paid for the time he spent at the central office or the time spent traveling between the central office and the various job sites. Id. ¶ 27. Thus, including the time spent at the central office and traveling between the central office and the job sites, Di Simone alleges that on non-prevailing wage projects he typically worked between 46.25 to 48.75 hours per week, id. ¶ 27, and that on prevailing wage projects (except for Callen-Lorde, which is discussed below) he worked between 45.25 and 47.75 hours per week, but was never paid for more than 40 hours of work per week.[2] Id. ¶ 37.

While working on the Callen-Lorde project, Di Simone was occasionally required to work at the job site approximately 50 hours per week, including work on weekends, but was always paid his normal hourly rate of $10.25 per hour for all the hours he worked at the site, including those over 40 in a given week.[3] Id. ¶ 30-31. Furthermore, on weeks that he worked more than 40 hours at the Callen-Lorde site, Di Simone was often not paid for two to three hours of his on-site work in excess of 40 hours. Id. ¶ 30.

While working at the Callen-Lorde project, Di Simone received a weekly paycheck calculated based on an hourly wage of $53.09 - the prevailing wage rate. Id. ¶ 40. In addition, Di Simone would also receive a paycheck for the same work period that was calculated based on his usual, non-prevailing wage of $10.25 per hour. Id. Defendant Noto would then require Di Simone to cash the $53.09 per hour paycheck and give the entire proceeds back to Noto. Id. As a result, Di Simone only received $10.25 per hour for his work on this project, rather than the prevailing wage. Id. Di Simone was supervised at the Callen-Lorde project by, among others, the Ettedguis. Id. ¶ 41. When Di Simone complained to another supervisor about the kickback scheme being perpetrated by Noto and that supervisor complained to the Ettedguis on Di Simone's behalf, the supervisor was fired. Id. After that supervisor was fired, Philip Ettedgui told Di Simone to stop complaining about unpaid prevailing wages or he and his family would "have problems." Id. Di Simone also complained regularly to Noto about not receiving overtime or prevailing wages, and being forced to participated in the kickbacks, but was told that if he did not like it he could quit. Id. ¶ 42.

Di Simone claims that there are other similarly situated individuals who were denied overtime, not paid prevailing wages for public projects, and forced to pay ...

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