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Juarez v. Wheels Pizza Inc.

United States District Court, S.D. New York

June 30, 2015

MARTIN JUAREZ, individually and on behalf of others similarly situated, Plaintiff,

Joshua S. Androphy, Michael Antonio Faillace, MICHAEL FAILLACE & ASSOCIATES, P.C., New York, NY For Plaintiff Martin Juarez.

Bradley Lawrence Waldman, O'DWYER & BERNSTEIN, L.L.P., New York, NY For Defendants Wheels Pizza Inc. and Ann Marie Delaney.


DENISE COTE, District Judge.

Plaintiff Martin Juarez ("Juarez" or "plaintiff") brings various claims under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL") against his former employer, Wheels Pizza Inc. ("Wheels")[1], and Ann Marie Delaney ("Delaney, " collectively "defendants"), the daughter of Wheels's late owner. Defendants now move for summary judgment on all claims. For the reasons stated below, the motion is denied.


The following facts are undisputed unless otherwise noted. From summer 2008 to October 2012, Wheels operated a cash-only pizza stand at Manhattan's South Street Seaport. Business was seasonal, and the stand employed from four to eight employees at any one time. Wheels's sole owner and shareholder was Austin Delaney, who died in May 2009. Before Austin Delaney's death, the stand was managed by Joseph Oliva ("Oliva"), who was in charge of hiring, firing, setting schedules for, and distributing pay to employees. During this time Oliva consulted with Austin Delaney regarding firing decisions, and Austin Delaney also prepared pay for Oliva to distribute. The parties dispute whether and to what degree Oliva continued to manage the stand after Austin Delaney's death. In October 2012, Superstorm Sandy forced the stand to close, and it never reopened.

Juarez was hired by Oliva when Wheels opened the pizza stand in 2008 and worked there until it closed in October 2012. Juarez claims to have worked 8:00 a.m. to 9:00 p.m. six days a week, occasionally staying past 9:00 p.m. The parties agree his primary responsibility was preparing pizzas and working the counters. Juarez contends he was responsible for cleaning the stand, as well. He was paid partly by check and partly in cash. He states that until January 2012 he received $250 by check every week and $200 in cash every other week; in January 2012, he states, he began receiving $15/hour.

On January 1, 2013, Juarez commenced this action pursuant to 29 U.S.C. § 216(b), alleging violation of the FLSA's minimum wage and overtime provisions, the analogous provisions of the NYLL, and a relevant state regulation.[2] Defendants filed the instant motion for summary judgment on April 3, 2015; it was fully submitted on May 15.


Summary judgment may not be granted unless all of the submissions taken together "show[ ] that there is no genuine dispute as to any material fact" and that defendants, the movants, "[are] entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a). Defendants bear the burden of demonstrating the absence of a material factual question, and, in making this determination, all facts are viewed in the light most favorable to Juarez and all reasonable inferences are drawn in Juarez's favor. See Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 456 (1992); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

Defendants advance four principal arguments. First, they argue that Wheels did not have a sufficient amount of gross revenue to be covered by the FLSA. Second, they argue that Delaney cannot be liable because she was never Juarez's employer, as that term is used in the relevant statutes. Third, they argue that Juarez's testimony is "not credible as a matter of law." Finally, they argue that Juarez's claims fail because he cannot establish damages. Each argument will be addressed in turn.

I. Enterprise Test

The FLSA defines an "enterprise engaged in commerce" as a business that (1) has employees "engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person, " and (2) has an annual gross revenue of at least $500, 000. 29 U.S.C. § 203(s)(1)(A)(i), (ii). Defendants contend that Wheels has never had annual gross revenue of at least $500, 000 and therefore cannot be liable under the FLSA.[3]

In support of this contention, Wheels offers the first page of each of its corporate tax returns for the years 2008 through 2012.[4] The largest amount of gross income reported on these tax returns is $432, 662, for the year 2011. The returns are unsigned. Accompanying these pages is a March 3, 2015 letter from Joel Zipper ("Zipper"), a certified public accountant at the accounting firm of Josephson Luxenberg Kance & ...

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