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Guzman v. Three Amigos SJL Inc.

United States District Court, S.D. New York

July 30, 2015

YADIRA GUZMAN, et al., Plaintiffs,
v.
THREE AMIGOS SJL INC. et al., Defendants.
v.
EVELYN RODRIGUEZ, et al., Plaintiffs,
v.
THREE AMIGOS SJL INC., et al., Defendants

Page 517

For Yadira Guzman, on behalf of themselves and all others similarly situated, Daniris Espinal, on behalf of themselves and all others similarly situated, Plaintiffs (1:14-cv-10120-GBD): Brian Scott Schaffer, Eric Joshua Gitig, LEAD ATTORNEYS, Fitapelli & Schaffer, LLP, New York, NY; Deirdre Anne Aaron, Justin Mitchell Swartz, LEAD ATTORNEYS, Outten & Golden,LLP (NYC), New York, NY; Joseph A. Fitapelli, LEAD ATTORNEY, Fitapelli & Schaffer, New York, NY; Jeffrey Hill Dorfman, Fitapelli & Schaffer LLP, New York, NY; John Anthony Blyth, Hach Rose Schirripa & Cheverie LLP, New York, NY.

For Julia Avila, Plaintiff, Counter Defendant (1:14-cv-10120-GBD): Eric Joshua Gitig, Fitapelli & Schaffer, LLP, New York, NY.

For Evelyn Rodriguez, Janine Bonderenko, Jennifer Eller, Kayla Atkins, Consolidated Plaintiffs, Consolidated Counter Defendants (1:14-cv-10120-GBD): Frank Rocco Schirripa, LEAD ATTORNEY, John Anthony Blyth, Hach Rose Schirripa & Cheverie LLP, New York, NY.

For Three Amigos SJL Inc., Three Amigos SJL Rest., Inc., Times Square Restaurant No. 1, Inc., Times Square Restaurant Group, Ltd., Selim " Sam" Zherka, Dominica O'Neill, Defendants (1:14-cv-10120-GBD): Rex Whitehorn, Rex Whitehorn & Associates, P.C.

For Dominica O'Neill, Times Square Restaurant Group, Ltd., Three Amigos SJL Inc., Selim " Sam" Zherka, Times Square Restaurant No. 1, Inc., Three Amigos SJL Rest., Inc., Counter Claimants (1:14-cv-10120-GBD): Rex Whitehorn, Rex Whitehorn & Associates, P.C.

For Daniris Espinal, on behalf of themselves and all others similarly situated, Yadira Guzman, on behalf of themselves and all others similarly situated, Counter Defendants (1:14-cv-10120-GBD): Brian Scott Schaffer, Eric Joshua Gitig, LEAD ATTORNEYS, Fitapelli & Schaffer, LLP, New York, NY; Deirdre Anne Aaron, Justin Mitchell Swartz, LEAD ATTORNEYS, Outten & Golden,LLP (NYC), New York, NY; Joseph A. Fitapelli, LEAD ATTORNEY, Fitapelli & Schaffer, New York, NY; John Anthony Blyth, Hach Rose Schirripa & Cheverie LLP, New York, NY.

For Evelyn Rodriguez, on behalf of themselves and all others similarly situated, Janine Bonderenko, on behalf of themselves and all other similarly situated, Jennifer Eller, on behalf of themselves and all others similarly situated, Kayla Atkins, on behalf of themselves and all others similarly situated, Plaintiffs (1:15-cv-00823-GBD): Frank Rocco Schirripa, John Anthony Blyth, Michael A. Rose, LEAD ATTORNEYS, Hach Rose Schirripa & Cheverie LLP, New York, NY; Steven Jay Harfenist, LEAD ATTORNEY, Freidman, Harfenist, Langer & Kraut (LIs), Lake Success, NY.

For Three Amigos SJL Rest., Inc., Times Square Restaurant No. 1, Inc., Times Square Restaurant Group, Ltd., Selim " Sam" Zherka, Dominica O'Neill, Defendants (1:15-cv-00823-GBD): Rex Whitehorn, Rex Whitehorn & Associates, P.C.

Page 518

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Yadira Guzman, Daniris Espinal, Evelyn Rodriguez, Janine Bonderenko, Jennifer Eller, and Kayla Atkins have filed the above-referenced actions against their former employers, Three Amigos SJL Inc., Three Amigos SJL Rest., Inc., Times Square Restaurant No. 1, Inc., Times Square Restaurant Group, Ltd., Selim " Sam" Zherka, and Dominica O'Neill for violations of the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (" FLSA" ), and the New York Labor Law. On April 1, 2015, the two actions were consolidated for all purposes, including trial, under docket number 14 Civ. 10120.[1] See Order Consolidating Cases, filed Apr. 1, 2015 (Docket # 14 in 14 Civ. 10120 and Docket # 12 in 15 Civ. 823). Plaintiffs now move to have this case conditionally approved as a collective action with notice being sent to " all individuals who worked at Cheetah's as

Page 519

entertainers." [2] Pl. Mem. at 12. For the following reasons, plaintiffs' motion is granted.

I. BACKGROUND

A. Facts Alleged by Plaintiffs

The following facts have been alleged by plaintiffs in their declarations filed as part of the instant motion:

Defendants operate a business called Cheetahs Gentlemen's Club & Restaurant (" Cheetahs" ). See Declaration of Yadira Guzman, dated Apr. 6, 2015 (annexed as Ex. B to Swartz Decl.) (" Guzman Decl." ), ¶ 2; Declaration of Daniris Espinal, dated Apr. 15, 2015 (annexed as Ex. C to Swartz Decl.) (" Espinal Decl." ), ¶ 2; Declaration of Evelyn Rodriguez, dated Apr. 14, 2015 (annexed as Ex. D to Swartz Decl.) (" Rodriguez Decl." ), ¶ 1; Declaration of Janine Bonderenko, dated Apr. 13, 2015 (annexed as Ex. E to Swartz Decl.) (" Bonderenko Decl." ), ¶ 2; Declaration of Jennifer Eller, dated Apr. 9, 2015 (annexed as Ex. F to Swartz Decl.) (" Eller Decl." ), ¶ 1; Declaration of Kayla Atkins, dated Apr. 14, 2015 (annexed as Ex. G to Swartz Decl.) (" Atkins Decl." ), ¶ 2. Plaintiffs all worked as " entertainer[s] / dancer[s]" at Cheetahs.[3] Guzman Decl. ¶ 2; Espinal Decl. ¶ 2; Rodriguez Decl. ¶ 1; Bonderenko Decl. ¶ 2; Eller Decl. ¶ 1; Atkins Decl. ¶ 2. Plaintiffs worked at Cheetahs during various periods between 2007 and 2013, with some plaintiffs having worked there for a few months and others having worked there as long as five years. See Guzman Decl. ¶ 2; Espinal Decl. ¶ 2; Rodriguez Decl. ¶ 1; Bonderenko Decl. ¶ 2; Eller Decl. ¶ 1; Atkins Decl. ¶ 2. Each plaintiff had weeks when she worked over 40 hours per week and days when she worked over 10 hours per day. Guzman Decl. ¶ 3; Espinal Decl. ¶ 3; Rodriguez Decl. ¶ 2; Bonderenko Decl. ¶ 3; Eller Decl. ¶ 2; Atkins Decl. ¶ 3. However, none of plaintiffs' hours worked were monitored or recorded by Cheetahs, and plaintiffs were never required to record the hours worked themselves. Guzman Decl. ¶ 4; Espinal Decl. ¶ 4; Rodriguez Decl. ¶ 3; Bonderenko Decl. ¶ 4; Eller Decl. ¶ 3; Atkins Decl. ¶ 4.

During their employment, plaintiffs were not paid any hourly wages by Cheetahs for their work as entertainers. Guzman Decl. ¶ 6; Espinal Decl. ¶ 6; Rodriguez Decl. ¶ 5; Bonderenko Decl. ¶ 12;

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Eller Decl. ¶ 5; Atkins Decl. ¶ 6. When plaintiffs worked in excess of 40 hours per week, plaintiffs were not paid any overtime for the hours worked above 40. Guzman Decl. ¶ 7; Espinal Decl. ¶ 7; Rodriguez Decl. ¶ 6; Bonderenko Decl. ¶ 15; Eller Decl. ¶ 6; Atkins Decl. ¶ 7. When they worked in excess of 10 hours per day, plaintiffs were not paid any additional wages by Cheetahs. Guzman Decl. ¶ 8; Espinal Decl. ¶ 8; Rodriguez Decl. ¶ 7; Bonderenko Decl. ¶ 14; Eller Decl. ¶ 7; Atkins Decl. ¶ 8. Cheetahs also unilaterally determined the entertainers' method of ...


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