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Pinovi v. FDD Enterprises, Inc.

United States District Court, S.D. New York

July 8, 2015



GEORGE B. DANIELS, District Judge.

This Court held a bench trial to adjudicate the claims of Plaintiff Gallie Dossou[1] against Defendant Ali Dar. Plaintiff alleges that Defendants FDD Enterprises, Inc. and Ali Dar violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and corresponding provisions of the New York State Labor Law ("NYLL"), §§ 650 et seq., by insufficiently compensating Plaintiff for his work as a parking attendant at the garage that Defendants owned.

This Opinion constitutes this Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. This Court finds for Plaintiff and will award damages consistent with this Opinion.


Plaintiff brought this action against Gerald Lieblich and Reyer Parking Corp. on April 26, 2013. (Complaint (ECF No. 1).) Plaintiff was granted leave to amend the complaint to add new defendants. (So-ordered Letter Request (ECF No. 22).) He filed the Amended Complaint on October 31, 2013. ( See Am. Compl. (ECF No. 23).) The original two defendants, Gerald Lieblich and Reyer Parking Corp., were subsequently dismissed from this action: Gerald Lieblich was dismissed by stipulation, dated March 20, 2014, and Reyer Parking Corp. was dismissed by order, dated April 10, 2015, granting Defendant Reyer Parking Corp.'s motion for summary judgment. ( See Stipulation (ECF No. 41) and Order (ECF No. 62), respectively.) On May 21, 2015-five days before the bench trial was scheduled to commence on May 26, 2015-defense counsel informed this Court that Defendant FDD Enterprises, Inc. had filed for Chapter 11 bankruptcy protection in United States Bankruptcy Court for the Southern District of New York under case file number 15-11326. (Letter dated May 21, 2015 (ECF No. 66).) Accordingly, pursuant to 11 U.S.C. § 362(a)(1), this action was automatically stayed as to Defendant FDD Enterprises, Inc. However, this Court denied Defendants' request that the stay extend to non-debtor Defendant Dar. ( See Letter dated May 21, 2015 (ECF No. 67); see also Queenie, Ltd. v. Nygard Int'l, 321 F.3d 282, 287-88 (2d Cir. 2003) (holding that a Section 362(a) stay does not automatically extend to a non-debtor).

From May 26 to May 27, 2015, this Court held a two-day bench trial to address whether Defendant Dar is liable to Plaintiff as his employer. Plaintiff called three witnesses in his case-in-chief, including himself and Defendant Dar, and he offered two exhibits that were admitted into evidence. Defendant Dar called only himself in his case-in-chief, and he offered three exhibits that were admitted into evidence.[2]


Federal Rule of Civil Procedure 52(a) provides, in relevant part, that a court conducting a bench trial "must find the facts specially and state its conclusions of law separately, " and that "[j]udgment must be entered under Rule 58." Fed.R.Civ.P. 52(a)(1). Rule 52(a) further provides that such "[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility." Fed.R.Civ.P. 52(a)(6).


Undisputed Facts

Certain facts are not in dispute. Plaintiff was employed by Defendant Dar as a parking garage attendant. Plaintiff filled out a document titled "Application for Employment, " admitted as Plaintiff's Exhibit 2, that Defendant Dar gave him in October 2012. Plaintiff initially was paid $350 per week, and he was later paid at least $376 per week. Plaintiff was paid every week in cash. Plaintiff was not paid overtime and he received no spread-of-hours premium. Defendant Dar ultimately fired Plaintiff for allegedly stealing money from customers.[3]

The Duration of Plaintiff's Employment by Defendant Dar

Plaintiff testified that he began work on January 3, 2011, and his last day was in March 2013, though he could not remember exactly when in March. Plaintiff also testified that he filled out the "Application for Employment" (Plaintiff's Exhibit 2) after working for Defendants for over a year. The date accompanying Plaintiff's signature on the application is October 16, 2012. Plaintiff testified that he was never shown time records when he worked for Defendants.

On direct examination, Defendant Dar had difficulty remembering Plaintiff's dates of employment. However, Defendant Dar stated that the time records he kept to track Plaintiff's hours (Plaintiff's Exhibit 1) were an accurate reflection of the total duration of Plaintiff's employment, the hours that he worked, and his rate of pay. According to Defendant Dar's time records, Plaintiff began work the week of October 13, 2012, and he worked through March 8, 2013. Defendant Dar also testified that Plaintiff was given the job application on October 13, 2012, before he started working, but that he signed it three days after he began working on October 16, 2012.

The third individual to testify, Michael Mensah Abrampah, is also a former employee of Defendant Dar. Abrampah testified that he began working for Defendants on January 15, 2010. Abrampah also testified that he met Plaintiff in mid-January 2011 at work while they were both employees of Defendants. He testified further that Plaintiff already worked for Defendants before he met Plaintiff. Defendant Dar did not remember whether Abrampah or Plaintiff began working for him first. Unlike Plaintiff, Abrampah ...

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