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Fuentes v. Kelco Landscaping Inc.

United States District Court, E.D. New York

May 17, 2014

JOSE MANUEL HENRIQUEZ and JOSE HECTOR FUENTES, on behalf of themselves and similarly situated employees, Plaintiffs,
v.
KELCO LANDSCAPING INC., KELCO LANDSCAPING CORP., ELM GENERAL CONSTRUCTION CORP., KELLY'S CREW, JOHN KELLY, JOSEPH PROVENZANO, Defendants.

Peter Arcadio Romero, Esq., Andrea E. Batres, Esq. Andrea Rodriguez, Esq., of Counsel, Frank & Associates, PC, Farmingdale, NY, Attorneys for the Plaintiffs.

Mark Lance Hankin, Esq., Matthew Lawrence Goldberg, Esq., of Counsel, Hankin, Handwerker & Mazel, PLLC, New York, NY, Attorneys for the Defendants.

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, District Judge.

On December 19, 2012, the Plaintiffs Jose Manuel Henriquez ("Henriquez") and Jose Hector Fuentes ("Fuentes, " and collectively, the "Plaintiffs") commenced this action by filing a Complaint (the "Original Complaint") against the Defendants Kelco Landscaping, Inc.; Kelco Landscaping Corp. (together with Kelco Landscaping, Inc., "Kelco"); Elm General Construction Corp. ("Elm General"); Kelly's Crew; John Kelly ("Kelly") and Joseph Provenzano ("Provenzano, " and collectively, the "Defendants"). The Plaintiffs bring a collective action claim pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"), and specifically 29 U.S.C. § 216(b), alleging that the Defendants failed to pay the Plaintiffs overtime compensation for the hours they worked in excess of a forty-hour work week.

The Plaintiffs also assert a Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 23 class action claim pursuant to New York Labor Law ("NYLL") Article 19, § 650 et seq., and New York State Department of Labor Regulations, 12 New York Code of Rules and Regulations ("NYCRR") Part 142, alleging that the Defendants failed to pay the Plaintiffs and putative class members overtime compensation for the hours they worked in excess of forty hours a week. In addition, the Plaintiffs bring a breach of contract claim as third-party beneficiaries relating to Public Works Contracts that Kelco entered into, under which Kelco agreed to perform various landscape construction work within the State of New York.

Presently before the Court is an unopposed motion by the Plaintiffs brought pursuant to Fed.R.Civ.P. 15 and 21 to file an Amended Complaint (the "Amended Complaint") so as to (1) add Kelco Construction Inc. d/b/a Kelco Landscaping and Construction ("Kelco Construction") as a party defendant and (2) amend certain factual allegations related to the Plaintiffs' dates of employment.

For the reasons that follow, the Court grants the Plaintiffs' motion.

I. BACKGROUND

Unless otherwise states, the following facts are derived from the Original Complaint and the Amended Complaint and are construed in the light most favorable to the Plaintiffs.

The Defendant Kelco, a domestic corporation organized under the laws of the State of New York, is engaged in the business of construction and landscaping. Its yearly gross revenue exceeds $500, 000, and it produces goods for interstate commerce. The Defendant's Elm General and Kelly's Crew are entities related to and/or affiliated with Kelco.

Kelco is owned by the Defendant Kelly, who is also a shareholder and officer of Kelco. The Defendant Provenzano is also a shareholder and officer of Kelco. In addition, Provenzano serves as Kelco Landscaping's General Manager. As such, both Kelly and Provenzano have authority to make payroll and personnel decisions for Kelco, including the hiring and firing of employees.

According to the Original Complaint, the Plaintiff Henriquez worked as a fulltime landscape laborer for Kelco from March 27, 2008 to an unspecified time in April of 2012, when his employment was terminated. However, the Amended Complaint revises these dates and asserts that Henriquez instead worked for Kelco from March 27, 2009 until July of 2012. Similarly, the Plaintiff Fuentes was also employed by Kelco as a fulltime landscape laborer. The Original Complaint states that Fuentes's employment began at some point in October of 2007 and ended when he, like Henriquez, was fired in April of 2012. Again, the Amended Complaint adjusts these dates, claiming that Henriquez was employed from October of 2008 until December of 2011. During their employment with Kelco, the Plaintiffs regularly performed landscape maintenance duties for Kelly's Crew and provided labor at the residences of Kelly and Provenzano.

Both Henriquez and Fuentes were paid an hourly salary, and they received payroll checks that were issued by Elm General. Although the Plaintiffs allegedly worked more than forty hours each week, they claim they were never paid overtime at a rate of one and one-half times their regularly hourly rate for the excess hours.

The Plaintiffs assert that Kelco had a general policy and pattern or practice of failing to pay overtime compensation to its employees for those hours they worked in excess of forty hours per week. As such, according to the Plaintiffs, Kelco has intentionally, willfully and repeatedly violated the FLSA and NYLL by (1) failing to keep records of the time that its employees worked for the benefit of Kelco and (2) ...


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