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Alvarez v. Michael Anthony George Constr. Corp.

United States District Court, E.D. New York

April 29, 2014

CARLOS ALVAREZ and CARLOS MUNOZ, individually and on behalf of all other persons similarly situated who were employed by MICHAEL ANTHONY GEORGE CONSTRUCTION CORP., MICHAEL ANTHONY GEORGE NURSERY INC., MICHAEL ANTHONY GEORGE, LTD., MICHAEL ANTHONY GEORGE, and/or any other entities affiliated with or controlled by MICHAEL ANTHONY GEORGE and/or MICHAEL ANTHONY GEORGE CONSTRUCTION CORP., Plaintiffs,
v.
MICHAEL ANTHONY GEORGE CONSTRUCTION CORP., MICHAEL ANTHONY GEORGE NURSERY INC., MICHAEL ANTHONY GEORGE, LTD., MICHAEL ANTHONY GEORGE, and/or any other entities affiliated with or controlled by MICHAEL ANTHONY GEORGE and/or MICHAEL ANTHONY GEORGE CONSTRUCTION CORP., Defendants

Page 286

For Plaintiff: JOADY BENJAMIN FEINER, ESQ., Sea Cliff, New York.

For Defendants: Lloyd R. Ambinder, Esq., Suzanne B. Leeds, Esq., VIRGINIA & AMBINDER, LLP, New York, New York; Jeffrey K. Brown, Esq., Jessica L. Parada, Esq., LEEDS BROWN LAW, P.C., Carle Place, New York.

Page 287

MEMORANDUM & ORDER

Denis R. Hurley, Senior United States District Judge.

Plaintiffs Carlos Alvarez and Carlos Munoz, and opt-in plaintiffs Leandro Munoz, Jose Vidal Munoz Galindo, Jose Maria Munoz Galindo, Juan Leonel Lopez Juarez, Ruben Barrera, Jorge Mario Ramos Munoz, Jose William Recinos Monje, and Juan M. Castillo (collectively, " Plaintiffs" ), brought this action claiming violations of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 207, 215(a)(3) and 216(b), New York Labor Law (" Labor Law" ) § § 190 et seq., 215(a)(1), 652 and 663, and New York Code of Rules and Regulations (" NYCRR" ) § § 142-2.2 and 142-2.4. Plaintiffs allege that defendants Michael Anthony George Construction Corp. (" George Construction" ), Michael Anthony George Nursery Inc. (" George Nursery" ), Michael Anthony George, Ltd. (" George Ltd." ), Michael Anthony George (" George" ), and/or any other entities affiliated with or controlled by George and/or George Construction (collectively, " Defendants" ), failed to pay them the applicable overtime and spread of hours pay required by law, and retaliated against them for exercising their rights under the FLSA. Presently before the Court is Plaintiffs' motion for partial summary judgment pursuant to Federal Rule of Civil Procedure (" Rule" ) 56. For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part.

BACKGROUND

The material facts, drawn from the Amended Complaint and the parties' Local

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Civil Rule 56.1 Statements, are undisputed unless otherwise noted.

George Construction, George Nursery and George Ltd. are landscaping and construction businesses incorporated under the Laws of the State of New York. " [I]n or about March 2004 through November 2010, Defendants employed . . . Carlos Alvarez to carry out tasks in furtherance of [their] landscaping and construction business[es]." (Pls.' R. 56.1 Stmt. ¶ 4.) " [I]n or about 2005 through December of 2011, Defendants employed . . . Carlos Munoz to carry out tasks in furtherance of [their] landscaping and construction business[es]." ( Id. ¶ 5.) " [I]n or about March of 1996 through December 30, 2011, Defendants employed . . . Leandro Munoz to carry out tasks in furtherance of [their] landscaping and construction business[es]." ( Id. ¶ 6.) While Plaintiffs state that " in or about 2005 through December 30, 2011, Defendants employed . . . Jose Vidal Munoz Galindo to carry out tasks in furtherance of [their] landscaping and construction business[es]," ( id. ¶ 6), Defendants state that Jose Vidal Munoz Galindo began his employment with Defendants in or about the beginning of 2005, but was not employed with Defendants for a time period between 2005 and 2008. (Defs.' R. 56.1 Counterstmt. ¶ 7.) It is undisputed that " in or about 2005 through December of 2011, Defendants employed . . . Ruben Barrera to carry out tasks in furtherance of [their] landscaping and construction business[es]." (Pls.' R. 56.1 Stmt. ¶ 8.) " [I]n or about 2006 through May or June of 2011, Defendants employed . . . Jose William Recinos Monje to carry out tasks in furtherance of [their] landscaping and construction business[es]." ( Id. ¶ 9.) " [I]n 2005 through December 30, 2011, Defendants employed . . . Jose Maria Munoz Galindo to carry out tasks in furtherance of [their] landscaping and construction business[es]." ( Id. ¶ 11.) While Plaintiffs assert that " in 2007 through the present, Defendants employed . . . Juan Castillo to carry out tasks in furtherance of [their] landscaping and construction business[es]," ( id. ¶ 10), Defendants argue that George averred in his affidavit, submitted in opposition to summary judgment, " that he does not know an employee by the name of Juan Castillo . . . who [performed] work for him or for any of his companies," George " checked all of his companies' records and there is no record of any employee by that name performing any work for any of his companies," George's employees told George that they did " not know anyone by that name [who] was employed at his companies," and, upon information and belief, George's " companies have never employed an employee by that name." (Defs.' R. 56.1 Counterstmt. ¶ 10.) Defendants also assert that neither Juan Leonel Lopez Juarez nor Jorge Mario Ramos Munoz were employed by George or his companies. ( Id. ¶ 12.)[1]

According to Plaintiffs, they typically worked six days per week, from 7:30 a.m. until 5:30 p.m., but occasionally worked as late as 6:30 or 7:00 p.m. or came in as early as 6:00 a.m. (Pls.' R. 56.1 Stmt. ¶ ¶ 12, 13.) However, Defendants assert that the employees typically worked five days per week, and that Carlos Alvarez and Carlos Munoz " were caught sleeping in company trucks during work hours." (Defs.' R. 56.1 Counterstmt. ¶ 12.) In addition, Defendants assert that the employees were allotted breaks during the morning and for lunch time. ( Id.)

Plaintiffs assert that they " were typically paid in cash, at a flat hourly rate ranging from $8.50 to $25.00 per hour, for

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every hour worked." (Pls.' R. 56.1 Stmt. ¶ 17.) In addition, Plaintiffs assert that they " almost always worked in excess of forty (40) hours per week, and did not receive overtime compensation." ( Id. ¶ 18.)

George was responsible for hiring and firing the employees, and he " oversaw the day-today operations, often by supervising on the actual sites." ( Id. ¶ 27.) In addition, George controlled the daily record keeping and prepared the payroll. The workers were paid by George, who wrote personal checks to himself and then distributed the cash proceeds to the workers in envelopes each week. According to Plaintiffs, " Defendants failed to employ any reliable method for recording workers['] hours." ( Id. ¶ 29.) Nevertheless, it is undisputed that " Defendants submitted purported payroll 'records' allegedly substantiating the hours worked and amounts paid on behalf of the [n]amed Plaintiffs." ( Id. ¶ 38.) It is further undisputed that George testified that the payroll records produced by Defendants " were not created contemporaneously, and were instead generated solely in response to this lawsuit." ( Id. ¶ 40.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment pursuant to Rule 56 is appropriate only where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all ...


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