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Bedasie v. Mr. Z Towing, Inc.

United States District Court, E.D. New York

March 24, 2017

MR. Z TOWING, INC., FRANK ANDREOPOLOS, and HELEN MUSTAKAS, Defendants. Period Minimum Wage Owed Overtime Pay Owed Spread-of-hours Owed Liquidated Damages Owed under FLSA Liquidated Damages Owed under NYLL Period Minimum Wage Owed Overtime Pay Owed Total $9, 791.84 Period Minimum Wage Owed Overtime Pay Owed Spread-of-hours Owed Liquidated Damages Owed under FLSA Liquidated Damages Owed under NYLL Period Overtime Pay Owed Period Overtime Pay Owed Liquidated Damages Owed under FLSA Liquidated Damages Owed under NYLL Plaintiff NYLL Award Per Diem Interest Accrual Date Days between Accrual and Date of Order Total Interest to Date of Order Period Minimum Wage Owed Overtime Pay Owed Spread of Hours Owed Liquidated Damages Interest Due Wage Notice Damages $2, 500.00 Cumulative Total $46, 617.26 Period Minimum Wage Owed Overtime Pay Owed Spread of Hours Owed Liquidated Damages Interest Due Wage Notice Damages $2, 500.00 Cumulative Total $37, 043.18 Period Overtime Pay Owed Liquidated Damages Interest Due Wage Notice Damages $2, 500.00 Cumulative Total $35, 994.67 Claim Bedasie Diaz Rosario TOTAL $119, 655.11


          POLLAK, United States Magistrate Judge.

         On October 2, 2013, plaintiffs Vijay Bedasie, Ruddy Diaz, and Jose Rosario (collectively, “plaintiffs”) commenced this action against defendants Mr. Z Towing, Inc. (“Mr. Z”), Frank Andreopolos, [1] and Hellen Mustakas[2] (collectively, “defendants”), seeking unpaid overtime wages, minimum wages, and spread-of-hours pay, pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”) § 650. In addition, plaintiffs seek damages stemming from defendants' alleged failure to comply with the notice and record keeping requirements of the NYLL, liquidated damages under both the NYLL and FLSA, and prejudgment interest under the NYLL. After settlement discussions proved unsuccessful, the parties consented to proceed before the undersigned for trial and entry of judgment.

         The case proceeded to a bench trial, which was held before this Court from May 2, 2016 to May 5, 2016. Plaintiffs' case-in-chief consisted primarily of the testimony of plaintiffs Bedasie, Diaz, and Rosario, along with various documentary evidence offered in support of plaintiffs' testimony. Defendants' case-in-chief consisted of the testimony of defendants Andreopolos and Mustakas, as well as the testimony of Frank Evangelista, Mohammad Ali, Marshal Alejandro Finardo, [3] and Marshal Gary Rose.

         For the reasons set forth below, the Court finds that defendants Mr. Z Towing and Frank Andreopolos have violated certain provisions of the FLSA and the NYLL, and awards plaintiffs damages in the amount of $119, 655.11.


         Although many of the critical facts surrounding plaintiffs' employment are disputed, the parties appear to be in agreement about certain facts, and the Court outlines them briefly to provide a chronological context for the evidence presented at trial.

         Defendant Mr. Z Towing is a towing service that, in relevant part, contracts with the New York City Marshal's Office (the “Marshal's Office”) to locate and tow away vehicles with outstanding tickets. (Am. Compl.[4] ¶¶ 12, 27; JPTO[5] at 5). Defendant Andreopolos is a 50% owner and vice president of Mr. Z, and defendant Mustakas is an employee of Mr. Z. (JPTO at 5). Plaintiffs Bedasie and Diaz worked as “taggers” or “scouts” for Mr. Z, in which capacity they were responsible for running the license plates of cars parked in a defined geographic area through a system designed to check for any outstanding tickets. (Id.; Tr.[6] at 20, 104). Plaintiff Rosario worked as a “stager” for Mr. Z, in which capacity he functioned as a security guard for the lot in which all towed cars were kept. (Tr. at 188).

         Although there is some dispute as to whether plaintiff Bedasie took extended leave during certain periods over the course of his employment, the parties agree that Bedasie began working for Mr. Z at some point in January 2007 and ended his employment in June 2013. (JPTO at 5). Plaintiff Diaz worked for Mr. Z as a tagger from January 2009 to May 2013. (Id.) The parties also agree that plaintiff Rosario was employed by Mr. Z from “some time in 2008” to June 2013. (Id.) The parties further stipulated that “[p]laintiffs' regular schedules were Monday through Thursday, and every other Friday for the years 2012 and 2013.” (Id.) Defendants conceded that they did not require the plaintiffs to clock in or out to keep track of shifts, and maintained no other records as to the hours worked by any of the plaintiffs. (Id. at 5-6). However, defendants contend that plaintiff Rosario was a minimum wage employee who received both minimum wages in the amount of $7.25 per hour and overtime wages in the amount of $10.88 per hour for the time he worked in excess of 40 hours, which, they allege, is reflected in his paychecks. (Id. at 3).

         a) Vijay Bedasie's Testimony

         At trial, plaintiff Bedasie testified that he worked for Mr. Z from 2007 until the summer of 2013. (Tr. at 35). He originally testified that other than vacations, he worked continuously for Mr. Z during this period. (Id. at 35). Bedasie testified that when he was hired, defendant Mustakas told him that he would be paid $15 per car, plus $50 per day. (Id. at 19, 37-38). On cross-examination, he indicated that if he worked four days per week, he was paid $200, plus $15 per car; if he worked five days that week, he would be paid $250, plus $15 per car. (Id. at 38). He also testified that although he was promised money for gas and he asked for it on several occasions, defendants never paid him for gas. (Id. at 38).

         Bedasie denied that he was ever paid on an hourly basis, denied that he was asked to check in or out, and testified that there was never a clock-in or clock-out machine. (Id. at 19-20). He did explain, however, that there was a basic schedule of when the scouts were to start and when they could leave, and that “every week is . . . basically the same schedule.” (Id. at 21). According to Bedasie, when he worked four days a week, he worked approximately 50 hours per week and when he worked five days a week, he worked between 59 and 60 hours a week. (Id. at 50). Although he testified on cross-examination that he had no records, he reiterated that every week, the scouts would start and end at the same times depending on the day, and that the schedule was the same. (Id.)

         According to Bedasie, on Sunday nights at 11:30 p.m., he would go to the yard to pick up the disk for his computer and the sheet prepared by Mustakas that showed the locations where he was to go to that day. (Id. at 22). He testified that after picking up the envelope with the computer disk, he would return to his car, upload the disk onto the computer, and proceed to his assigned area. (Id.) From then until 3:00 p.m., he would tag cars for a total of 15.5 hours. (Id.)

         On Tuesdays, his shift began at midnight and he would work until 3:00 p.m, for a total of 15 hours. (Id. at 22). Bedasie testified that on Wednesdays and Thursdays, he would arrive at 2:00 p.m. and work until midnight, for a total of 10 hours each day. (Id.) When he worked on Fridays, which was twice a month, he worked from 2:00 p.m. until 11:00 p.m. (Id. at 22, 92-93). However, he explained that even though the marshals would call the end of the shift on Fridays at 11:00 p.m., by the time the scouts got back to the yard, and reviewed the list of cars towed that week with the marshal's list, it would be closer to 12:00 or 12:30. (Id. at 22-23, 93). In addition, he testified that if he worked on a Thursday and not on a Friday, he would have to return to the yard to return the computer chip he used to determine the assigned area each week. (Id. at 23). On cross-examination, Bedasie testified that from 2007 to July of 2009, he worked on average approximately 50 hours per week, broken down as follows: 15.5 hours on Monday, 15 hours on Tuesday, 10 hours on Wednesday, and 10.5 hours on Thursday. (Id. at 41). Although he testified that his schedule remained the same for the entire time he worked for Mr. Z, he conceded that he did not start working Fridays until some time in 2009. (Id. at 24).

         When asked how he could have put in close to 50 hours per week working only four days per week, while the marshal only put in 42 hours, Bedasie explained that even though the marshals would start at 3:00 p.m. on Mondays and Tuesdays, the scouts were told to go out three hours earlier so that cars would be ready for towing when the marshals started. (Id. at 25). On the other days, the scouts would only start an hour earlier because it was “daytime. . .like a high traffic area, ” and if they tagged cars three hours earlier, the cars would be gone by the time the marshal arrived. (Id.)

         Bedasie denied being given or taking meal breaks, testifying that he would have food in the car and would eat while scanning license plates. (Id. at 25-26). He did concede that there were days when he would be off due to a storm or blizzard, estimating that it was “[m]aybe three, four days” per year. (Id. at 26). He also testified that Mr. Z was closed for a week or a week and a half after Hurricane Sandy (id. at 27), and that there were days when the computers went down while the scouts were in the middle of checking plates. (Id. at 27). According to Bedasie, the scouts were told to keep working and they would be notified when the computers were back online. (Id.) On those occasions, the scouts would write down the plate numbers and then check the plate numbers when the computers were back online. (Id. at 86). There were, however, days when the computers would be down all day and then the scouts were told not to work. (Id. at 55). Bedasie also conceded that they did not work on federal holidays, such as Thanksgiving or Christmas; when the holiday fell on a Monday, he stated that they would work on Friday to make up for it. (Id. at 28). When asked how many vacation days he took every year, Bedasie testified that he took “a week or two” and he called in sick on average three days per year. (Id. at 28-29).

         Bedasie testified that there were times when the marshal would tell them to leave early but this happened “rarely.” (Id. at 29). He denied that he ever left work on his own early because he got paid “basically on cars. So if I left early, it would effect me at the end of the week.” (Id.) On cross-examination, he was asked if he was involved in an accident and out for an extended period of time, but he claimed he could not recall. (Id. at 55-56). After being shown a document, he admitted that he was in an accident but he did not recall when it was. (Id. at 57). He admitted that he had been involved in a medical malpractice lawsuit, but he insisted that he did not miss work during that period. (Id. at 58).[7]

         Bedasie testified that he got paid on a weekly basis, either on Thursday night or Friday. (Id. at 30). He and Mustakas would compare the list of cars he tagged each day during the week with the list that the marshal prepared and she would then calculate the amount to be received and she would write the checks. (Id. at 31). However, he testified that Mustakas would not sign the checks; those were signed by defendant Andreopolos. (Id. at 31, 51). Although Bedasie never received pay stubs or pay records, he did identify certain paychecks he received from Mr. Z. (Id. at 32). Bedasie testified that the paychecks entered into evidence as Plaintiffs' Exhibit 1 correctly reflected the gross amount of pay earned during the period reflected on the check. (Id. at 33-34). When shown Plaintiffs' Exhibit 2, Bedasie testified that they appeared to be pay stubs, but he testified that the first time he had ever seen these documents was in his lawyer's office. (Id. at 34). Nevertheless, he testified that they appeared to be accurate. (Id.)

         On cross-examination, Bedasie was shown checks for the weeks of January 6, January 20 and January 27, 2012. (Id. at 43). The checks were each for $200. (Id., Tr. Ex.[8] 1). When asked to explain how he could have accepted a paycheck for only $200 if he was working 50 hours that week, Bedasie could not respond. (Id. at 42). As counsel noted, if Bedasie was supposed to be paid $50 a day, as he testified, and he tagged even 10 cars, that would be an additional $150 that he was owed for each of these weeks if he worked 4 days a week during that period. (Id. at 44). When shown a check for the week of September 21, 2012, Bedasie stated he could not explain how he could have been paid $1, 010 that week. (Id.) He also could not explain how his gross pay of $1, 005 for the week of March 11, 2011, as reflected on the Exhibit, was calculated. (Id. at 45). Defendants, however, provided no explanation either.

         b) Ruddy Diaz's Testimony

         Plaintiff Diaz testified that he began working for Mr. Z in 2008, and was originally hired as a stager. (Id. at 101-02). According to Diaz, he was told by defendant Mustakas that he would be paid $10.00 an hour. (Id. at 102). In the winter of 2009, Diaz was hired as a tagger or scout. (Id. at 103). Diaz testified that at that time, Mustakas told him that they needed more spotters for cars because they were not getting enough cars. (Id. at 103). When Diaz became a scout, his job was to identify cars that had unpaid tickets, run the plates, and identify the location of the car. (Id. at 104). He also testified that when he became a scout, his rate of pay changed to $20 per car. (Id. at 104, 126). He testified that he was supposed to be paid for gas, but never received gas money. (Id. at 126). He never had to punch in or out, or sign in or out; he was never asked to keep track of his time. (Id. at 104). He never checked in when he started his schedule, but he would notify the marshal by radio when he ended a work shift. (Id. at 105).

         Diaz testified that, like Bedasie, he had a regular schedule. (Id.) He testified that on Sundays, he would head to the yard at 11:30 p.m. to pick up the chip, upload the computer and then travel to his assigned location. (Id.) He would then work until 3:00 p.m. Monday; on Tuesday, he worked from midnight until 3:00 p.m. (Id. at 106). On Wednesdays, Thursdays, and Fridays, he worked from 2:00 p.m. until 12:00 p.m. (Id.) On Fridays, after he finished his shift at 11:00 p.m., he would return to the yard and give back the computer. (Id. at 107). At the end of a workweek, he would also count the cars that were towed and give the list to Mustakas. (Id.) He explained that he worked two Fridays a month the entire time that he was working as a scout. (Id.) He confirmed Bedasie's testimony that the scouts began working at midnight, before the marshal got there at 3:00 a.m., because they wanted to get cars ready for the marshal to tow. (Id. at 108). He did not think there were any days when the marshal ended a shift more than a half hour early, and he denied leaving work early on any occasion. (Id.)

         Like Bedasie, Diaz testified that he took no meal breaks, ate lunch in the car, and did not work due to bad weather approximately two times a year. (Id. at 109). He also testified that he missed 7 to 10 days after Hurricane Sandy. (Id. at 109-10). According to Diaz, if the computer system went down, Diaz would continue listing cars and running plates. (Id. at 110). He testified that they were off for Thanksgiving and Christmas and that he took a week or two off for vacation for only one year in 2011 when he suffered a family emergency. (Id. at 113-14). Diaz testified that he did not take off for vacation for any year other than 2011. (Id.)

         Diaz identified certain checks that showed his gross wages, and he verified that the amounts were what had been paid to him. (Id. at 116). When asked to verify certain other documents, he claimed he had not received copies of these documents which appeared to be pay stubs. (Id. at 117, Tr. Ex. 5).

         According to Diaz, he stopped working at Mr. Z in the summer of 2013. (Id. at 118). He denied that he ever took an extended period of time off from work. (Id.) When asked if he cut his shift short to go to car auctions with his father, Mr. Diaz denied that he ever left work early. (Id. at 121). He denied that he was ever paid $50 a day. (Id. at 126-27). He testified that nothing was ever put in writing; everything was agreed to orally between him and Mustakas. (Id. at 127). He testified that he was always paid by car, never by the number of hours he worked. (Id. at 128). He testified that on one occasion, he tagged 50 or 60 cars but was only paid half of what he was owed. (Id. at 129). When he complained, he was promised that they would help him “next time.” (Id.) He complained only once but testified that he was afraid of losing his job. (Id. at 129-30). He denied ever receiving $25 per hour in pay. (Id. at 142).

         On cross-examination, Diaz admitted that there came a time in 2013 when Marshal Finardo suspended him because he was not in the proper section and he had not asked permission from the marshal to go to another section. (Id. at 163, 165). He explained that he was there because his “area was slow.” (Id. at 164). He testified that he never got hired back after that. (Id.) Also on cross-examination, he testified that he did not work on Labor Day or Memorial Day. (Id. at 176). He also testified that if there was a federal holiday that fell on a Monday, he would still work that Friday to make up for the Monday off. (Id. at 174). He testified that he called in sick on average two to three days per year, and that he lost four days when his brother died in 2011. (Id. at 179).

         c) Jose Rosario's Testimony

         Jose Rosario testified that he began working as a stager for Mr. Z in January 2008 and worked there until June 2013. (Id. at 188). His typical workday began at 3:00 a.m. when he would pick up the forms at Mr. Z's lot that he needed for the cars. (Id. at 189). On the form, he would enter the model of the car, color, year, and any information about what was inside the car. (Id. at 190). At the end of the day, one copy of the form would go to Mustakas or Andreopolos and the other copy would be taken to the precinct. (Id. at 191). On Mondays and Tuesdays, he would usually go to two precincts; on the other days, he would go to “a couple of precincts.” (Id.) He testified that in the beginning, he was paid $10 an hour for about a year; in the middle of 2009, his pay increased to $11 per hour. (Id. at 192, 208-09). Rosario testified that his pay went up to $12 in 2012 (id. at 192), but also testified that he was told “in the beginning of 2013” that his pay would increase to $12. (Id. at 193).

         He testified that in 2008, he worked Mondays through Thursdays and then after 2009, he started working every other Friday. (Id. at 194). He also testified that throughout the period, his schedule stayed generally the same: he would start on Mondays and Tuesdays at 3:00 a.m. and work until 6:00 p.m. (Id. at 195). On Wednesdays, he would start at 3:00 p.m. and work until 2:00 a.m. when he would go to the yard. (Id. at 196). He would then give the information forms to Mustakas or Andreopolos and then go to the precinct, maybe at the latest, 3:00 a.m. (Id.) He testified that his schedule on Thursdays was the same as Wednesdays, and on Fridays, he would start at 2:00 p.m. and end at 1:00 a.m.

         Like the other plaintiffs, Rosario testified that he did not have to sign in or out at any time. (Id. at 198). He conceded that there were times when he left earlier or later than he estimated, but these estimated times were to the best of his recollection. (Id.) He also testified that there were one or two snow days per year when they did not work, and there were days when the computers were down, but he still had to guard the cars during the period that the computers were down. (Id. at 199). He testified that he believed Mr. Z was closed for a week during Hurricane Sandy, but that he was required to work, to guard the cars in the back that were about to be flooded. (Id.) He claims that he did not get paid for that day that he worked during the hurricane. (Id. at 247). As for lunch breaks, he testified that he would get 15 to 20 minutes to go get food. (Id. at 200).

         He acknowledged receiving paychecks while working at Mr. Z (id. at 201-02, Tr. Ex. 7), but he also identified pay stubs that he claimed he had never seen while actually working for Mr. Z. (Id. at 202). When asked on cross examination to explain why he accepted one paycheck indicating that his gross pay was $571 even though he was supposed to be paid at the rate of $12 per hour, and he claimed he was working a minimum of 60 hours, Rosario testified, “I just accepted it.” (Id. at 221). Counsel for defendants showed Rosario several checks where he was not paid the full amount he claimed he was owed even if the rate had been $10 per hour. (Id. at 222). Rosario indicated that he “just trusted” Mustakas and Andreopolos. (Id.) He also testified that even though he was paid on an hourly basis, he never gave Mustakas or Andreopolos input on how many hours he worked. (Id. at 250).

         He testified that he worked when there was rain and sleet, but not if it snowed and the snow made it difficult to see the license plates. (Id. at 232). He also testified that he continued to work when the computer went down because he had cars to watch and he could not leave them alone. (Id. at 233). He testified that the amount of time it took for the marshal to arrange to have the truck drivers pick up the tagged cars varied depending on the number of cars. (Id.) He admitted that there were times when he left early - “twice” a year - and he testified that he had surgery one year that resulted in his being out for 4 days. (Id. at 234). He also claimed that he never took vacation in the six years he was working for Mr. Z. (Id.)

         d) Frank Andreopolos' Testimony

         In their defense, defendants presented the testimony of the company's part owner, defendant Frank Andreopolos, as well as the testimony of defendant Hellen Mustakas, Frank Evangelista, and Marshal Alejandro Finardo.

         Defendant Andreopolos testified that he was a 50% owner of Mr. Z. (Id. at 479). He testified that he is the vice-president of the company, with the job functions “to run the business, hire and fire people, drive with the marshal, do paperwork . . . . I would do office work, communicate with the marshals, with the scouts, with the drivers, marshal's office, the DM Vehicles.” (Id. at 480). For each car towed, Andreopolos testified that Mr. Z would receive $185 plus tax from the City. (Id.) He explained that “scouts” were hired to locate the vehicles, give the information to the marshal, who would verify the car and plate, and then tow trucks would pick up the tagged cars. (Id.) The cars were then towed to a staging area where Rosario would count the cars that came in. (Id.)

         According to Andreopolos, he employed between 7 and 14 scouts at any one time. (Id. at 481). He testified that “[t]hey all, like, part-time workers and they work on their own and if they show up, they show up.” (Id. at 481). He described Mustakas' job as “all-around, lady all-around.” (Id.) According to Andreopolos, Mustakas was a manager of Mr. Z from 2000 until 2003, when she suffered some personal problems so Andreopolos had to hire other people, such as Ali, whose role was to manage the scouts, the drivers, the office work, do the paperwork and work with the marshal - all things Mustakas had done before 2003. (Id. at 481-82).[9] Andreopolos testified that Mustakas played no role in hiring or firing employees. (Id. at 482). He admitted that she was present in the trailer when employees were being interviewed, and she might have given a second opinion, but the “bottom line it was me [Andreopolos] that decided if they were going to get the job or not.” (Id. at 483).

         Andreopolos testified that when he hired Bedasie, Bedasie was paid $15 per car. (Id. at 485). Andreopolos testified that “[w]henever he [Bedasie] decide to come to work, he was making money. Mr. Bedasie want to work little hours. He had his own things going on. Whenever he was free, he would come in.” (Id. at 491). Andreopolos claimed that Bedasie was “[r]eprimanded constantly” by the marshals for disappearing, not showing up, giving wrong locations and disappearing. (Id. at 492). When the marshal would notify Andreopolos of these issues, Andreopolos would try to contact Bedasie and then if Bedasie did not respond, Andreopolos would have to find a replacement. (Id. at 492).

         On cross-examination, Mr. Andreopolos admitted that he did not keep track of the scouts' time at all. (Id. at 522-23). According to Andreopolos, each week, the scouts would verify the number of cars tagged by comparing the license plates of the cars they tagged to the marshal's logs. (Id. at 505). Andreopolos testified that although Mr. Z kept copies of the logs, which showed the days worked, the trailer was flooded during Hurricane Sandy and all of the records got wet. (Id. at 506).[10] Unfortunately, it was not until the middle of trial that defendants subpoenaed copies of the marshals' logs, but because the logs were not produced during discovery and not listed on the pretrial order, the logs were not admitted into evidence. (Id. at 505).

         When asked if he had changed his record-keeping practices after a former employee, Raphael Rivera, brought a wage and hour lawsuit in August 2012, before Hurricane Sandy, Andreopolos explained that the scouts were getting paid by the piece and he did not track their hours even after the Rivera lawsuit. (Id. at 540). He conceded that he never paid Bedasie or Diaz overtime. (Id. at 543). According to Andreopolos, he would tell the accountant how many cars each scout had and the accountant would then calculate the taxes and give Andreopolos the net amount owed. (Id. at 546-47). The accountant would then indicate how much to write the checks for. (Id. at 547). He testified that the pay stubs admitted into evidence were prepared by the accountant based on information provided by Andreopolos. (Id. at 550). He claimed that in the beginning, he started giving the scouts “pay stubs and stuff” but “[t]hey threw them out.” (Id.)

         When asked if there was a period of time that Mr. Bedasie was out due to an accident, Andreopolos testified that he did not remember, but when shown some notes, [11] he claimed that Bedasie was out from July 2008 until January 2010. (Id. at 494-95). Andreopolos testified that he was “not sure” how Bedasie came back; “I believe he rehired, yeah. I'm not sure.” (Id. at 495). Andreopolos never explained what the basis for the notes were upon which he testified that Bedasie was not working for a year and a half. He did state that Bedasie had multiple lawsuits and he “was constantly in and out, and that's why one of the reasons that they work on commission is that to have the option to leave and come whenever they want.” (Id. at 495). He also claimed that every Thursday night, both Bedasie and Diaz would come in at 10:00 p.m. and figure out their daily hits. (Id. at 496). According to Andreopolos, they wanted to leave early and not go out to get additional cars, and he testified that they did not want to work on Fridays because “it's dry, ” meaning there were very few cars to tag. (Id.) Again, however, he had no records to corroborate these statements.

         Despite his problems remembering dates and times when it came to his wife's accident and arrest, Andreopolos was adamant that neither Bedasie or Diaz had “ever work[ed] more than 40 hours a week.” (Id.) He also testified that from 2007 to 2013, Mr. Z was closed for snow days “offhand I can say in a year about four, five, six, maybe more” days. (Id. at 516). Also, he testified that when there was a computer failure, Mr. Z would shut down. (Id. at 517). Although he testified that “I don't know” when asked how many days would be lost to computer failure, he later stated that it would be “way more than five” a year. (Id.) He then testified “at least 10, 20 times” for every year except 2013 when they got new computers. (Id.) He also claimed that Mr. Z would close for two weeks during Christmas, and also for Thanksgiving, July 4th, Martin Luther King Day and Election Day. (Id. at 518-19). He denied that if a federal holiday fell on a Monday, they would then work the Friday before. (Id. at 519). He also testified that usually when there was a holiday, they would not work the day before because there was no way to redeem the vehicles the next day. (Id.)

         When asked about vacations, Andreopolos testified that Bedasie was gone about a week to ten days per year; “same thing” for Diaz and Rosario. (Id. at 520). According to Andreopolos, Mr. Z was closed for two to three weeks after Hurricane Sandy. (Id.) He explained that the scouts were not paid for that period because they were not towing cars. (Id. at 521).

         When asked about Diaz, Andreopolos testified that he hired Diaz because he knew Diaz's father for over 30 years. (Id. at 483). According to Andreopolos, when he interviewed Diaz, he had no skills and no prior experience in the towing industry. (Id.) He could not recall if he hired Diaz originally to work in the staging area; “[o]ver the years I have hired hundreds of people.” (Id. at 484). He did know that when Diaz was hired as a scout, he was paid a straight commission of $25 per car towed. (Id. at 484). According to Andreopolos, every company in New York City that was involved in the scofflaw program paid by the car. (Id.) “Why? Because it's people they were making their own time. They would come in whenever they want, as they please . . . . they wanted to put hours and get more hours and that's actually what's happening.” (Id.) He explained that he paid Diaz $25 a car because “the kid was just starting out. He couldn't make money and I gave him the incentive to go and get more cars and plus I knew his father. . . .” (Id. at 486). According to Andreopolos, there were problems with Diaz's job performance; “every day, every marshal . . . everybody fired him.” (Id.) When asked why he rehired Diaz, Andreopolos testified that it “[d]idn't cost me nothing” because they made their own time and every additional car was more for him. (Id. at 486-87).

         Mr. Andreopolos testified that “[f]rom the day he started to the day that he finish, about two times a week, I'm not sure if it was Tuesday or Friday, but every day he was - every day they had auction, he [Diaz] would take off and go with his father to auctions.” (Id. at 490). According to Andreopolos, when this happened, Andreopolos “had to replace him;” whoever was available would fill in. (Id.)[12]

         e) Frank Evangelista's Testimony

         Frank Evangelista testified that he has worked for Mr. Z since 2008 as a tow truck driver and manager. (Id. at 262-63, 282). On cross-examination, he first testified that he worked daily “Monday through Thursday, ” from 3:00 a.m. until the last car was brought in, roughly “two, three o'clock in the afternoon.” (Id. at 283). He later testified that he only worked that schedule on Monday and Tuesday, and that on Wednesdays and Thursdays, he would start work at 3:00 p.m. and work until midnight. (Id.) On Fridays, he worked from 5:00 or 6:00 a.m. until 12:00 in the afternoon. (Id.) He testified that the scouts had no schedule; “they came and went as they pleased.” (Id. at 285).

         He testified that he knew both Diaz and Bedasie and that there were times when he would call them on the radio during the day and they were not working or they would disappear. (Id. at 265). He claimed that “maybe like once, twice a week Diaz wouldn't show up. He'd go to auctions with his father or he'd go sell cars that he bought at the auction.” (Id.) Evangelista stated that it “could have been any day. It was usually twice a week. . . . no specific days or anything.” (Id. at 266). He testified that there were days when Diaz did not come in at all or would “just disappear.” (Id.) However, he provided no corroboration for this testimony and could not be more specific as to when during a shift, Diaz would disappear, or how often Diaz did not come in at all. Evangelista also testified that there were times when Diaz was caught sleeping on the job; it happened on more than one occasion. (Id. at 268-69). According to Evangelista, Diaz was terminated from the company because he was not producing. (Id. at 270-71).

         Evangelista also testified that there were times when Bedasie failed to show up for work as well. (Id. at 267). He testified that Bedasie “was involved in lawsuits, so he wouldn't show up for work due to accidents.” (Id.) According to Evangelista, Bedasie was out of work for a year and a half, from July of 2008 to January 2010. (Id. at 267-68). He also testified that on Mondays, Bedasie and Diaz would come in early at 11:00 a.m. and leave early even though the shift ended at 3:00 p.m. (Id. at 272).

         On cross-examination, Evangelista explained that the marshals wanted certain scouters terminated because when they came in, tagged five cars and then left at 9:00 p.m., the marshal would have nothing to do. (Id. at 286). He testified that his job was to pick up the cars when the marshal came in. (Id. at 288). The marshal would tell him where to go and he would get in his tow truck, pick up the car, bring it back to the staging area and drop the car off there. (Id. at 288-89).

         Evangelista also conceded that on one occasion, Marshal Finardo planted money in a car and accused Evangelista of stealing it. (Id. at 291). Evangelista claimed that although Finardo reported it to Andreopolos, Evangelista was never disciplined for stealing the money, and he denied having taken it. (Id. at 292, 293).

         With respect to the periods when the computers shut down, Evangelista testified that scouters could not check the cars so they “waited it out until they came up, if they ever came up.” (Id. at 274). Evangelista testified that Mr. Z was shut down “for about three weeks” after Hurricane Sandy. (Id. at 279). He also testified that “none of the scouters worked 40 hours a week.” (Id.) On average, he testified that they worked “maybe eight hours a day, ” and on Fridays, neither Mr. Diaz or Mr. Bedasie worked. (Id. at 280).

         f) Mohammad Ali's Testimony[13]

         Defendants also called Mohammad Ali, who worked as an administrative manager for Mr. Z beginning in 2003 until mid-2012. (Id. at 301). Ali testified that one of his main responsibilities was to speak to the scouts over a Nextel Direct Connect cell phone. (Id. at 302). According to Ali, he was the manager during the time that Evangelista had also testified that he was the manager.[14] (Id. at 301). According to Ali's testimony, from 2008 until 2013, Evangelista was “the main tow run manager.” (Id. at 303).

         When asked if Bedasie or Diaz worked Fridays, Ali testified that “[u]sually they didn't.” (Id. at 308). He explained that he knew this because “it was just recollection; that if we're working on Fridays, don't expect to see them there.” (Id. at 309). He testified that the company would close on snow days. (Id. at 311). From 2007 through 2012, he stated that they would close between 10 and 15 days in January, February, and December. (Id. at 311-12). When asked if this was every year, he admitted: “It's difficult to answer that. Some years there were less.” (Id. at 312). When asked what happened when the computer system went down, Ali testified that “it was pretty much extra free time so they could do whatever they want. They would go home, they would disappear.” (Id. at 314). He stated that the system would go down “a couple of times a month.” (Id.) As for federal holidays, he testified that Mr. Z was closed on the Fourth of July, Memorial Day, Veterans Day, Thanksgiving, Christmas, and the Jewish holidays. (Id. at 314-15). He also denied that when a federal holiday fell on a Monday, that they would work on Friday to make up for it. (Id. at 314).

         Ali also testified that there were times when the marshals left early. (Id. at 316). He recalled this because “I would get happy that, all right, I get to go home early too, during the evening hours.” (Id.) He could not be more specific as to when or how often this occurred.

         Ali testified that the scouts were paid on a commission basis for each car towed in. (Id. at 317). If no cars were towed, the scouts would not get paid. (Id.) Ali testified that at the end of every week, Bedasie and Diaz would come in with “their own little notebooks” and write down the cars that they had tagged; “they kept their own log, basically.” (Id. at 318). Ali would take their books and compare them to the daily tow log, and then Ali would give the number of towed cars to Andreopolos, and he would cut the check. (Id. at 319). According to Ali, Bedasie was paid $15 per car and Diaz was paid $25 per car. (Id. at 320).

         Ali testified that there were times when cars were called in by Diaz or Bedasie but the car would be gone once the marshal appeared to tow it, and it was later determined that the scout had called the same car in the day before. (Id. at 322-24). He also claimed that Diaz “would get fired at least, like once every couple of months.” (Id. at 324).[15] On cross-examination, Ali conceded that during the period of 2007 to 2008, he was taking classes three days a week, Tuesday, Wednesday and Thursday, five hours a day, and only working part time. (Id. at 333-34). He could not answer counsel's question as to when Diaz began working at Mr. Z or exactly what position Diaz was initially hired for, testifying that Diaz was “initially hired as either the stage person or working in the yard at the gate or something.” (Id. at 336). When asked if there were any records, Ali testified that the “only records that I would know of would be the pay stubs.” (Id. at 337). Ali indicated that “[n]obody knew how many hours they worked, they would come and go as they please.” (Id. at 338).

         g) Hellen Mustakas' Testimony

         Hellen Mustakas testified for defendants. She explained that she used to be the office manager for Mr. Z beginning in 2000, continuing off and on until 2007 when she had a couple of miscarriages, and was falsely arrested and out for six months. (Id. at 346). She also suffered a “very bad accident” in July 2012 and was out for eight or nine months. (Id. at 346-47). She testified that although she was in the office when Diaz was hired, her husband[16] was the one who hired him, issued the paychecks, and determined the salaries.[17] (Id. at 349-50).

         She testified that Bedasie was paid $15 per car and Diaz was paid $25 per car; Rosario was paid minimum wage of $7.25 plus overtime. (Id. at 352). Mustakas testified that when Diaz and Bedasie were offered their positions, they were given the option of being paid by the number of cars tagged or $7.25 an hour plus overtime. (Id. at 377, 463). She testified that they chose to be paid by commission because they would make more money. (Id.) She also denied that Bedasie or Diaz ever worked more than 40 hours a week, because the marshals would complain that they could not be found. (Id. at 352-53).[18]

         Mustakas testified that there were times when the office was closed due to snow days and computer failure. (Id. at 362). She estimated that in 2011, Mr. Z was shut down for nine or ten days because of bad weather and that they were closed for three weeks due to Hurricane Sandy and the flooding that occurred in the office. (Id. at 362). She also testified that Marshal Rivera showed her pictures of Diaz sleeping and disappearing when he was supposed to be working. (Id. at 371). As a result, Diaz was terminated in 2009, but came back to work “a few days afterwards.” (Id. at 372). She testified that although Bedasie was reprimanded, he was not terminated. (Id. at 373).

         According to Mustakas, Diaz would go on Tuesdays and Fridays with his father to auction and she knew this because “a couple times when we call him to see where he was at, he said ‘I'm at the auctions with my dad.'” (Id. at 373). She also testified that “between nine, ten or eleven in the morning on Mondays and Tuesdays, ” they could not reach Diaz or Bedasie. (Id. at 375). Although she agreed with counsel's question that this “was pretty much a set thing, ” she could not be more specific as to when either of these things occurred nor did she specify how often they occurred.

         With respect to vacations, Mustakas testified that Bedasie would take two weeks every year. (Id. at 382). She testified that he had an accident and was out of work from July 2008 until January 2010. (Id. at 386). She also claimed that he took off days from work in 2010 to deal with a malpractice case that he was pursuing; he was not paid during these time periods. (Id. at 386). She estimated it was two or three days for a few weeks. (Id. at 387). As for Diaz, she stated that he took two vacations in total during the years 2011 and 2012. (Id. at 385). She also testified that Mr. Z was closed for two weeks during Christmas. (Id. at 382). According to Mustakas, Mr. Z was also closed on Columbus Day, Presidents Day, Labor Day, Memorial Day, Election Day, New Year's Day, and Thanksgiving. (Id. at 383). She also claimed that they would not work the prior Friday before a Monday holiday. (Id. at 384).

         On cross-examination, she conceded that she did not keep track of the days that the scouts worked or when they were hired, fired or stopped working. (Id. at 464). She testified that she would write down the schedules based on what the marshal told her, but that she did not prepare the schedule for Rosario. (Id.) This contradicted defendants' Responses to Interrogatories, Exhibits 11 and 19, where defendants had identified Mustakas as one of the people responsible for determining Rosario's schedule. (Id. at 466; Exs. 11, 19, Question 15). She testified that Rosario would begin working when the marshal started and he would end work when the last car was picked up. (Tr. at 467). She conceded that at times, he would deliver forms to the precinct. (Id.) She indicated that when he reported his finishing time, it could be to the minute - “12:40, 12:41.” (Id. at 468). She conceded that he might have worked 50 hours a week on occasion, but stated “I don't think so” when asked if he ever worked 60 hours or 70 hours in a week. (Id. at 468-69).

         Contrary to earlier testimony from Andreopolos, Mustakas initially responded “yes” when asked if the company began tracking the times of its employees after Raphael Rivera brought a lawsuit against Mr. Z in August 2012. (Id. at 469). Then, after looking at her husband across the courtroom, she responded, “No” to the repeated question. (Id. at 469-70). She then admitted that even though there was a lawsuit pending, the company would still discard all of its records at the end of the week. (Id. at 472).

         h) Marshal Alejandro Finardo's Testimony

         Defendants' final witness was Marshal Finardo, who testified that from 2009 to the present, he has worked as a marshal for New York City. (Id. at 396). In the beginning of his employment, he worked with Mr. Z two days a week until gradually, in late 2009, 2010, it became four or five days a week. (Id. at 396-97). On Mondays and Tuesdays, he worked the early morning shift, from 3:00 a.m. until 3:00 p.m.; on Wednesdays and Thursdays, he worked late afternoon, starting at 3:00 p.m. until around midnight. (Id. at 397). He also stated that they would work Fridays, “sporadically, ” depending on several factors. (Id. at 398). He testified that if there was a holiday on a Monday, he may work Friday, depending on how busy they were. (Id.) Also, if there was bad weather, they may work Fridays to make up for it. (Id.)

         He testified that they would close down for snow days based upon the decision of the City. (Id. at 398-99). He could not estimate how many days per year, testifying that “[e]very year was different.” (Id. at 399). When the computer went down, they would stop all operations and resume when it came back on. (Id.) He explained that if the computer broke down near the end of the day, they “would probably call the day at that time.” (Id. at 400). He also stated that the schedule for the entire week was predetermined by the program marshals and the hours were essentially the same. (Id. at 401). When asked if a vehicle was reported and then “GOA, ” meaning “gone on arrival” or no longer there by the time the marshal arrived, the marshal would “give the scouts the benefit of the doubt, ” concluding that the vehicle's owner had left the scene before the car could be towed. (Id. at 405). Marshal Finardo did not completely agree with counsel's contention that if a car was GOA, and efforts were unsuccessful to contact the scouts, that it meant the scouts were not working. (Id. at 406). Instead, he indicated that there may be several possible reasons why the scouts did not respond, including that the phone was off, they were away from the phone, using the bathroom, but if they never called back, “one can easily derive they're no longer working.” (Id. at 407).

         When asked if he had reprimanded Bedasie about leaving early, he testified that there may have been “one time” when they had a disagreement about the hours or leaving early, “maybe once.” (Id. at 408). As for Diaz, Finardo testified that there were a “couple of occasions” when he discussed not working in the proper area, leaving early, or not being out when he was supposed to be, but the marshal stated that between the two plaintiffs, “it was less than one handful in the years that I worked.” (Id.) He also denied ever suspending Diaz; “I didn't have the authority to suspend anybody.” (Id.) He also stated that while he sent Diaz home on occasion, it was no “more than a handful of occasions.” (Id.)

         Marshal Finardo testified that he did not know the exact hours that any of the plaintiffs worked and he denied having any records because they were not his employees. (Id. at 410-11). When shown his affidavit which stated that Bedasie and Diaz worked “approximately the same hours as me, ” Finardo confirmed that the information provided in response was accurate because it was approximate. (Id. at 413-14). He clarified that he did not know “exactly what time . . . they [came] in, ” but he had an idea based on their hits. (Id. at 414). He conceded that he had no records and could not testify as to what shifts they had worked on any given day in earlier years. (Id. at 415).

         When asked by defense counsel about an affidavit prepared by defense counsel that he refused to sign, Finardo explained that “it was full of things I was not aware of. And I amended it to this form, this affidavit, that I prepared or assisted in and I signed this and I submitted it to you.” (Id. at 420).

         When asked if Diaz took off on Tuesdays or Fridays to go to auctions with his father, or left work early, Finardo said that he “wouldn't know for sure, no.” (Id. at 425). He assumed the scouts were paid by commission, but did not know for sure; he did not know if they were entitled to overtime. (Id. at 427). He also assumed they took time off for lunch, but conceded that he had no way of knowing whether or not they did. (Id. at 428).

         On cross-examination, Finardo declined to estimate the number of Fridays that they would work in a month, declaring that “[i]t would be pure speculation . . . .” (Id. at 433). He did testify that because there were already hits logged when he started working, he surmised that the scouts had been out before him. (Id. at 434). Finardo also testified that “I don't recall any extended period of time in which [Bedasie] did not work when I was working with Mr. Bedasie that may have been longer than a month. I do not recall.” (Id. at 437).

         When asked if he ever had to reprimand Evangelista, whom he described as a tow truck driver, Finardo testified that there had been complaints about things missing from vehicles and he began an investigation. (Id. at 438). Finardo consulted with Andreopolos and conducted an “integrity test.” (Id.) Finardo explained how he had planted money under the seat of the front passenger vehicle, told Evangelista that he had left his flashlight inside, and then later, after Evangelista had looked in the car, Finardo checked the vehicle only to see that the money was missing. (Id. at 439). According to Finardo, Mr. Z fired Evangelista after this, although he was hired back at some time. (Id. at 442).

         i) Gary Rose's Testimony

         Marshal Rose was called by defendants. He testified that he had been a City marshal since 2005, responsible for seizing vehicles with outstanding tickets. (Id. at 447). He worked with Mr. Z from April 2006 through December 2007 and only on Mondays. (Id. at 448). He stated that he would normally get in at 3:00 a.m. and end work around 3:00 p.m. (Id. at 449). Prior to 2009, there was no towing on Fridays. (Id. at 448). He denied knowing Bedasie and Diaz by these names. (Id. at 451). He testified that he “wasn't really aware of when scouts showed up or didn't show up.” (Id. at 452). He explained that he did not check up on the scouts, did not have contact with the scouts, and did not know what their specific arrangements were with respect to pay. (Id. at 453).

         When asked if he ever left early between October 2007 and December 2008, Marshal Rose testified that he could not say, but that “70 to 75 percent of the time I would end up leaving before three o'clock.” (Id. at 457).


         Plaintiffs Bedasie and Diaz commenced this action on October 2, 2013, alleging various violations of the FLSA and the NYLL. On November 20, 2013, plaintiffs filed an Amended Complaint that included the claims of Rosario. The parties engaged in pretrial discovery and settlement negotiations were held before the Honorable Marilyn D. Go. On August 14, 2015, the Honorable Carol B. Amon granted partial summary judgment to plaintiffs as to their claims under Section 195(3) of the NYLL for wage statement violations, leaving only the following disputed claims: (1) claims for unpaid minimum wages on behalf of plaintiffs Bedasie and Diaz; (2) claims for unpaid overtime wages for all three plaintiffs; (3) claims for unpaid spread-of-hours wages for plaintiffs Bedasie and Diaz; (4) liquidated damages for all unpaid wages; (5) prejudgment interest; and (6) attorneys' fees.[19]

         On January 19, 2016, after numerous attempts to settle the remaining claims proved fruitless, the parties consented to proceed before the undersigned for a bench trial, which was held from May 2, 2016 to May 5, 2016. Following the conclusion of the trial, the parties submitted post-trial memoranda summarizing their respective positions on the evidence.

         In their Post-Trial Memorandum of Law, dated June 27, 2016, plaintiffs argued that: 1) all three plaintiffs were “employees” for purposes of the FLSA and NYLL (Pls.' Post Mem.[20] at 15, 17-18); 2) defendants Mr. Z, Andreopolos, and Mustakas were “employers” as defined by the FLSA and NYLL (id. at 14, 17); 3) defendants failed to keep records of plaintiffs' hours worked and minimum and overtime wages paid (id. at 18, 19); 4) defendants' violations of the FLSA were willful (id. at 15, 18); 5) plaintiffs Bedasie and Diaz were not paid proper amounts in minimum, overtime and spread-of-hours wages (Pls.' Post Stmt. Dam.[21] at 1-9, 9-16); and 6) plaintiff Rosario was not paid the proper amounts of overtime wages. (Id. at 17-22). Plaintiffs argue that defendants should be held liable for $128, 073.42 in damages as follows:

         1) For Plaintiff Bedasie:


Minimum Wages

$ 4, 496.30

Overtime Wages

$19, 325.11


$ 1, 195.46


$25, 016.87


NYLL Liquidated Damages

$13, 847.68

FLSA Liquidated Damages

$13, 096.69


$ 7, 770.42

Total Damages:

$59, 731.67[22]

2) For Plaintiff Diaz:


Minimum Wages

$ 2, 096.16

Overtime Wages

$11, 981.39


$ 655.07


$14, 732.62


NYLL Liquidated Damages

$ 9, 542.27

FLSA Liquidated Damages

$10, 543.35


$2, 486.94

Total Damages:

$37, 305.17[23]

3) For Plaintiff Rosario:


Overtime Wages

$13, 084.50


NYLL Liquidated Damages

$ 7, 013.25

FLSA Liquidated Damages

$ 7, 120.50


$ 3, 818.33

Total Damages:

$31, 036.58[24]

         Defendants' post-trial submission did not address plaintiffs' proposed damages calculations, arguing instead that because plaintiffs lacked credibility, their evidence on damages should be disregarded in its entirety. Defendants contend that all three defendants “lied about [Mustakas] being the boss.” (Defs.' Post Mem.[25] at 5, 6-11). In arguing that Rosario is not entitled to any relief, defendants detail a number of lies that they contend are sufficient grounds to disregard his testimony in its entirety: 1) “Lie I:” “when testifying about his salary at trial he clearly perjured himself” because his testimony about when he received certain raises differed from the dates set forth in the amended complaint (id. at 12-13); 2) “Lie II:” the evidence of the amount of pay received does not reflect his testimony regarding salary and raises; “[i]t is clear after a quick examination of . . .checks and pay stubs that Mr. Rosario is blatantly lying” (id. at13-16); 3) “Lie III:” Rosario is lying when he testifies. . .that he never gave [his employers] any information to assist in the calculation of his paycheck” (id. at 16-17); 4) “Lie IV:” “the lies keep rolling in and they get stupider and stupider” in that Rosario lied about speaking to his friends about suing (id. at 17-18); 5) “Lie V:” that Andreopolos did not participate in hiring Rosario; 6) “Lie VI:” that Rosario was only out of work for a week due to Hurricane Sandy (id. at 19-20); and 7) “Lie VII:” Rosario lied about Mustakas being the boss. (Id. at 20).

         Similarly, defendants argue that Bedasie also lied about so many significant issues that his testimony should be disregarded in its entirety and that he is not entitled to any relief. Specifically, defendants claim that Bedasie lied about the following: 1) “Lie I:” he “fraudulently misrepresented that he doesn't remember the details of his accident. . .” (id. at 21-23); 2) “Lie II:” he lied about Andreopolos having no role in hiring Bedasie (id. at 23-24); 3) “Lie III:” he lied about his salary including $50 per day plus gas (id. at 24-26); 4) “Lie IV:” he lied when he claimed he worked every other Friday from 2009 to 2013 (id. at 26-27); 5) “Lie V:” he lied about working more than 40 hours a week and not being compensated properly (id. at 27-34); 6) “Lie VI:” he lied about the Rivera lawsuit (id. at 34-35); 7) “Lie VII:” he lied about how he decided to sue (id. at 35-36); 8) “Lie VIII:” he lied about Mustakas being the boss (id. at 36); and 9) “Lie IX:” he lied about not knowing that Diaz was suspended. (Id. at 36-37).

         Defendants argue that Diaz also lied: 1) about how he got the job (id. at 38-39); 2) about his memory being better now than it was at his deposition (id. at 39-40); 3) about his lunch breaks (id. at 40-41); 4) about the Rivera lawsuit (id. at 41-41); 5) about not colluding to hire plaintiffs' attorneys (id. at 42-43); 6) about working more than 40 hours per week and not being compensated properly (id. at 43-49); 7) about friends telling him to sue (id. at 49-50); 8) about time off during Hurricane Sandy (id. at 51-52); 9) about his car being tagged by Marshal Rivera (id. at 52); and 10) about his salary being $20 per car whereas defendants claim he was paid $25 per car tagged. (Id. at 53-54).

         Defendants argue that defendants' witnesses were more credible than plaintiffs; that as a result, plaintiffs should not be awarded any damages; and that Mustakas was not a manager for purposes of imposing liability upon her as a defendant. (Id. at 64)


         As noted above, prior to trial before the undersigned, Judge Amon granted partial summary judgment to plaintiffs and made certain findings. Accordingly, the Court first identifies the findings made by Judge Amon that continue to govern as the law of the case.

         I. Law of the Case

         The “law of the case” doctrine stands for the proposition that “a decision regarding an issue of law made at one stage of a litigation becomes binding precedent, to be followed in subsequent stages of the same litigation.” Firestone v. Berrios, 42 F.Supp.3d 403, 411 (E.D.N.Y. 2013) (quoting Scottish Air Int'l, Inc. v. British Caledonian Grp., PLC., 152 F.R.D. 18, 24 (S.D.N.Y. 1993)). Thus, absent “cogent” or “compelling” reasons, a court should continue to adhere to decisions made previously in the same case. United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991). Such “cogent” or “compelling” reasons include “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” DiLaura v. Power Auth. of N.Y., 982 F.2d 73, 76 (2d Cir. 1992) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.), cert. denied, 506 U.S. 820 (1992)).

         In her Memorandum and Order granting plaintiffs partial summary judgment, Judge Amon expressly held that Mr. Z was an “enterprise engaged in commerce” and thus, was subject to the minimum wage and overtime provisions of the FLSA. (See 8/14/15 Order[26] at 2 n.2). Judge Amon also found that plaintiffs Bedasie and Diaz were paid at least in part based on the number of cars they tagged each week. (Id. at 3). Plaintiff Rosario, on the other hand, was paid by the hour. (Id. at 4). Finally, Judge Amon found defendants liable for wage statement violations and accordingly awarded each plaintiff $2, 500 in damages. (Id. at 8).

         Upon review of the record, the Court finds that no new evidence has been introduced, nor has there been any intervening change in the law, that would warrant revisiting any of these findings. Accordingly, the Court treats Judge Amon's findings as the law of the case for all purposes.

         II. Liability under the FLSA and NYLL

         A. Legal Standard

         Plaintiffs who bring claims under the FLSA must prove that: 1) defendants are employers subject to the FLSA; 2) plaintiffs are employees within the meaning of the FLSA; and 3) the employment relationship is not subject to any of the exemptions under the FLSA. Drozd v. Vlaval Constr., Inc., No. 09 CV 5122, 2011 U.S. Dist. LEXIS 156415, at *12 (E.D.N.Y. Oct. 18, 2011). Plaintiffs who bring claims under the NYLL must prove that: 1) plaintiffs were employees and 2) defendants were employers. Garcia v. Chirping Chicken NYC. Inc., No. 15 CV 2335, 2016 U.S. Dist. LEXIS 32750 *17-18 (E.D.N.Y. Mar. 31, 2016).

         B. Status as “Employer”

         In this case, Judge Amon found that Mr. Z was an “enterprise engaged in commerce, ” and therefore an employer who was subject to the minimum wage and overtime provisions of the FLSA. (See 8/14/15 Order at 2 n.2). She made no findings as to the employer status of the individual defendants.

         In order for the individually named defendants, Andreopolos and Mustakas, to be held liable for violations under the FLSA and NYLL, they must be considered employers within the meaning of those statutes. In Herman v. RSR Securities Services, Ltd., the court held that “the overarching concern” for determining whether an individual was an “employer” under the FLSA was whether “the alleged employer possessed the power to control the worker in question. . . .” 172 F.3d 132, 139 (2d Cir. 1999). Under this economic reality test, courts consider whether the person had the power to: 1) hire and fire employees; 2) supervise and control work schedules and conditions of employment; 3) determine the rate and method of pay; and 4) maintain employment records. See id. Moreover, courts must examine the totality of circumstances and no single factor is exclusive or dispositive. Id.

         Although the Second Circuit and the New York Court of Appeals have not decided whether the tests for “employer” status are the same under the FLSA and the NYLL, district courts in this circuit have adopted a similar standard for both statutes. See Vasto v. Credico (USA) LLC, No. 15 CV 9298, 2016 WL 4147241, at *5 (S.D.N.Y. Aug. 3, 2016) (holding that “[t]he standard for employer status under the NYLL appears nearly if not wholly identical to that of the FLSA . . . . [D]istrict courts in this Circuit have consistently interpreted the definition of ‘employer' under the New York Labor Law coextensively with the definition used by the FLSA).

         The Court finds defendant Andreopolos to be an employer within the meaning of the FLSA and NYLL. In their Joint Pretrial Order, the parties stipulated that Andreopolos was the vice-president and owned 50% of Mr. Z. (JPTO at 5). The parties also stipulated to the fact that “Andreopolos supervised plaintiffs, set their wages, and had the authority to hire and fire them.” (Id.) Andreopolos himself testified at trial that: “My job function was to run the business, hire and fire people, drive with the marshal, do paperwork.” (Tr. at 480). The evidence clearly indicates that Andreopolos had the power to hire and fire employees, supervise and control work schedules, determine rates of pay, and maintain employment records, making him an employer under the FLSA and NYLL.

         As for the other named defendant, Hellen Mustakas, plaintiffs allege that Mustakas was an “employer” within the meaning of the FLSA and the NYLL, while defendants argue that Mustakas was merely an employee. Specifically, defendants claim that she was just “a girl Friday, an assistant, and that she came in many times just to fill in if help was needed.” (Defs.' Post Mem. at 8). Defendants argue that Mustakas did not have any involvement in the day-to-day activities of the company, and was only an assistant who came in from time to time. (Id. at 8). They contend that because Mustakas did not receive regular reports on sales or payroll, did not sign corporate checks, did not hire employees, and did not supervise employees or determine rates of pay, she does not qualify as a statutory employer. (Id. at 9). Defendants also refer to the testimony of Mohammad Ali, Mr. Z's administrative manager from 2003 to 2007, who testified that Hellen Mustakas did not have the authority to interview or hire anyone: “She wasn't the owner, manager, assistant manager. She was never put in charge of hiring or firing.” (Tr. at 341).

         Plaintiffs argue that Mustakas was an employer subject to the requirements of the FLSA and the NYLL based on the testimony provided by several witnesses at trial. (Pls.' Post Mem. at 14). First, plaintiffs point to the testimony of Bedasie who stated that Mustakas conducted his interview, described the job duties to him, and told him what his pay rate would be. (Tr. at 18-19). Plaintiff Diaz also testified that Mustakas was the one who hired him to be a stager and informed him of his rate of pay. (Id. at 102). Plaintiff Rosario testified that he met with Mustakas when he was hired to work for the company and that while her husband was present, he did not conduct the interview. (Id. at 191). Plaintiffs argue that defendant Andreopolos himself testified that Mustakas was a manager at Mr. Z. (Pls.' Post Mem. at 14 (citing Tr. at 481)). Finally, plaintiffs refer to the testimony of Marshal Rose, who testified that, as part of Mustakas' duties, she would “move staff around depending on what the needs were on a given day.” (Tr. at 455).

         Examining the totality of the testimony and evidence before the Court, the Court finds that even if Mustakas was present during the plaintiffs' interviews and may have even conducted the interviews and described the job responsibilities and pay, the evidence presented does not support a finding that she had the power to make the hiring and firing decisions or set the rates of pay without the input of her husband. Gary Rose, a City marshal who worked in conjunction with Mr. Z, and who was a disinterested witness in the case, described the variety of functions that he had observed Mustakas perform, including setting up the computers in the morning, making sure everything was running, and filling in if someone failed to come in to work. (Tr. at 455). He explained: “like [if] someone that did the paperwork didn't show up[, ] she would come in and she'd move staff around depending on what the needs were on a given day.” (Id. at 455).

         His testimony was corroborated by the testimony of Mohammad Ali, the manager of Mr. Z from 2003 to 2007, who testified that part of Mustakas' tasks included helping out with paperwork, helping out others in the office with errands, and answering the phones. (Id. at 340). Ali claimed that Mustakas “couldn't” interview anyone for employment purposes and he testified that “she was never put in charge of hiring of firing, ” explaining that defendant Andreopolos was in charge of hiring or firing. (Id. at 341). Defendant Andreopolos explained that while Mustakas may have been present during the job interviews, “[i]t's a small trailer. Everybody's next to me. There's not only Hellen, there's other-Latisha was there, Wendy was there, Felix Rodriguez was every time there. They [sic] doesn't mean they have any right to hire and fire.” (Id. at 482-483).

         In addition, the testimony of Frank Evangelista, the manager of Mr. Z from 2008 onwards, further corroborates defendants' claim that Mustakas did not wield actual authority over hiring and firing. (Id. at 276-78). Evangelista testified that during the period he was the manager of Mr. Z, Mustakas had participated in the act of hiring of firing certain people and that he had heard her say, “You're hired” or “You're fired.” (Id. at 276). However, he also testified that, “Me, Fotios and Hellen were in the office and . . . Fotios[27] would talk to them, but Hellen had no decision on hiring and firing.” (Id. at 277). The Court interprets Evangelista's testimony to mean that while Mustakas may have spoken to certain employees regarding their employment status, she did not wield the actual authority to determine or alter an employment status. Evangelista also testified that Mustakas did not sign the employee's paychecks, stating that: “Hellen has nothing to do with the checks, the payroll, or anything.” (Id. at 278).

         As for the evidence suggesting that Mustakas acted as a “manager, ” defendant Andreopolos specified in his testimony that Mustakas only served as the manager from 2000 to 2003, well before any of the plaintiffs were employed at Mr. Z. (Id. at 482). Indeed, Ms. Mustakas testified that in the years 2003, 2007, and 2012, she suffered from some personal issues that required her to stop working at Mr. Z for some period of time during those years. (Id. at 346). Thereafter, Ali was hired as the manager in 2003 until 2007, to be followed by Evangelista, who served as manager during the latter part of plaintiffs' employment. Thus, even if Ms. Mustakas had performed as a manager at some point, the testimony was that she was not serving in that capacity after plaintiffs were hired by Mr. Z, at a time when others were acting as managers. Thus, plaintiffs could not have been under her managerial authority. (Id. at 481).

         Based on the totality of the evidence, the Court finds that defendant Mustakas was not vested with the power to determine whether employees could be hired or terminated, nor did she exercise the authority to make other significant employment decisions, such as controlling employee pay records, or setting rates of pay. In summary, the combined testimony of both interested and disinterested witnesses demonstrates to the Court that while Mustakas may have wielded some apparent authority over employment decisions, she did not exercise the degree of operational control over the employees, their employment records, their pay rates, or their daily activities that would make her an “employer” for purposes of imposing liability under the FLSA. See Kaur v. Royal Arcadia Palace, Inc., 643 F.Supp.2d 276, 293 (E.D.N.Y. 2007) (citing Herman v. RSR Sec. Serv., Ltd., 172 F.3d at 139-140) (holding that “the court must evaluate the ‘totality of the circumstances' to determine whether a defendant had ‘operational control'”).

         Accordingly, the Court finds that Mustakas does not qualify as an “employer” under either the FLSA or the NYLL, and cannot be held liable for any wage and hour violations. However, since there appears to be no dispute that Andrepolos was an “employer, ” under the FLSA and NYLL, the Court finds that defendants Mr. Z and Andreopolos are “employers” for purposes of both statutes and are jointly and severally liable for any violations of the wage and hour laws.

         C. Status as Employees - Exemption under Section 1(a)(1) of the FLSA

         The third element that plaintiffs must establish before liability can be imposed under the FLSA is demonstrating that the plaintiffs do not fall within an established exemption. Since exemptions are considered affirmative defenses, it is the employer's burden to prove that an employee is exempt under the FLSA. See, e.g., Bilayou v. Dutchess Beer Dist., Inc., 300 F.3d 217, 222 (2d Cir. 2002). Moreover, the case law is clear that the exemptions under the FLSA are narrowly construed against the employer. See Karropoulos v. Soup du Jour, Ltd., 128 F.Supp.3d 518, 527 (E.D.N.Y. 2015).

         In their post-trial memorandum, defendants appear to re-raise an argument that plaintiffs Bedasie and Diaz were “outside sales/commission employees, ” who do not qualify for relief under the FLSA. (Defs.' Post Mem. at 62). This argument was first raised by defendants after Judge Amon issued her decision granting plaintiffs' motion for summary judgment with respect to the NYLL wage statement claims, finding that there was no issue of disputed fact in that defendants had failed to “furnish each employee[28] with a statement with every payment of wages. . ., ” as required by Section 195(3) of the NYLL. (Order at 5, 8). Following that decision, and during the preparation of the Pretrial Order, defendants moved to amend their Answer to add, inter alia, a defense that plaintiffs were exempt from the protections of the FLSA because they were employed as “outside sales employees.” (Defs.' 8/2/15 Letter[29] at 1). In an Order dated August 26, 2015, Judge Go denied defendants' motion to amend to add this defense, finding that it did not apply. (8/26/15 Order[30] at 2). In a pretrial Order dated April 29, 2016, this Court clearly held that defendants were precluded from asserting any counterclaims or additional defenses not previously raised in the pleadings. Bedasie v. Mr. Z Towing, Inc., No. 13 CV 5453, 2016 U.S. Dist. LEXIS 57431, at *11 (E.D.N.Y. Apr. 29, 2016). Given that the Court denied the motion to amend, and the exemption was not raised as an affirmative defense in the initial pleadings, defendants are now precluded from raising such a defense because affirmative defenses are required to be asserted in the pleadings or they are deemed waived. Id.; Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir. 1984); Columbia Artists Mgmt, LLC v. Alvarez, No. 08 CV 11254, 2010 WL 5396097, at *5 (S.D.N.Y. Dec. 23, 2010).

         Even if the issue had not been previously considered by Judge Go, this Court, having considered all of the evidence presented at trial, concludes that all three plaintiffs were “employees” under the FLSA and NYLL. None of them were “sales” employees; there is no dispute that they were not engaged in selling anything, but rather were taggers, whose job was simply to identify vehicles for towing. Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2162 (2012) (citing 29 C.F.R. §§ 541.500-503) (holding that, based on regulations issued by the Department of Labor, “an outside salesman is any employee whose primary duty is making any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition”). Moreover, plaintiffs were issued and paid as W-2 employees and defendants withheld employment taxes from their wages. (Tr. at 546, 550).

         Accordingly, the Court rejects defendants' argument that plaintiffs were exempt sales employees under the FLSA.

         D. The Commission Exemption under the FLSA

         Throughout this litigation, defendants have argued that plaintiffs Bedasie and Diaz were exempt from the hourly wage and overtime wage requirements of the FLSA because they were commissioned employees. (Defs.' Post Mem. at 2). Plaintiffs contend that regardless of whether they were paid by commission or by piece - i.e. by every car that they tagged - the protections of the FLSA extend beyond employees who are paid on an hourly basis. (Pls.' Post Mem. at 5).

         It is up to the courts to determine whether non-hourly wage practices comply with minimum wage and overtime regulations by determining the hourly equivalents of commissions. Cruz v. AAA Carting & Rubbish Removal, Inc., 116 F.Supp.3d 232, 242-43 (S.D.N.Y. 2015) (citing Chuchuca v. Creative Customs Cabinets Inc., No. 13 CV 2506, 2014 WL 6674583, at *9 n. 10 (E.D.N.Y. Nov. 25, 2014) (holding that “For minimum-wage recovery under the FLSA, the pertinent question is whether ‘the amount of compensation received by an employee results in a straight-time hourly rate that is less than the applicable federal minimum wage”); Karic v. Major Auto. Cos., 992 F.Supp.2d 196 (E.D.N.Y. 2014) (holding that the “NYLL indisputably requires that employers pay employees minimum wage and overtime on a weekly basis, regardless of whether those employees earned commission in subsequent weeks”).

         Although the FLSA “does not require employers to compensate employees on an hourly rate basis, their earnings may be determined on a piece-rate, salary, commission, or other basis, but in such case the overtime compensation due to employees must be computed on the basis of the hourly rate derived therefrom and, therefore, it is necessary to compute the regular hourly rate of such employees during each workweek.” 29 C.F.R. § 778.109. Section 207(a)(1) of the FLSA requires an employer to pay an employee overtime pay in the amount of one and one-half times their regular rate for hours worked in excess of forty hours. 29 U.S.C. § 207(a)(1). Under Section 207(i), “No employer shall be deemed to have violated subsection (a) of this section by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, [31] and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services.” 29 U.S.C. § 207(i). For commissions paid on a weekly basis, federal regulations provide that: “[w]hen the commission is paid on a weekly basis, it is added to the employee's other earnings for that workweek (except overtime premiums and other payments excluded as provided in section 7(e) of the Act), [32] and the total is divided by the total number of hours worked in the workweek to obtain the employee's regular hourly rate for the particular workweek. The employee must then be paid extra compensation at one-half of that rate for each hour worked in excess of the applicable maximum hours standard.” 29 C.F.R. § 778.118.

         Defendant Andreopolos testified at trial that both Bedasie and Diaz were paid entirely on commission. (Tr. at 484). Defendants contend that the commissions paid to those plaintiffs exceeded the amount they would have received had they been paid a minimum wage of $7.25 and corresponding overtime rate of $10.88. (Defs.' Post Mem. at 2). Defendants argue that plaintiffs Bedasie and Diaz chose to be paid on a commissioned rather than on a salaried basis, because a commissioned-based scheme provided them with incentives to earn a higher amount than they would have earned on minimum wage. (Id. at 25). In ruling on the defendants' motion for partial summary judgment, Judge Amon found that plaintiffs Bedasie and Diaz were paid at least in part based on the number of cars they tagged each week and that plaintiff Rosario was paid by the hour. (8/14/15 Order at 3).

         Plaintiffs contend, and the Court agrees, that in order to determine whether defendants' commission-based pay scheme complied with the minimum wage, overtime, and spread-of-hours requirements of the FLSA and NYLL, the Court must determine the plaintiffs' regular hourly rate of pay based on their commissioned work. If that regular hourly rate is higher than the minimum wage and if plaintiffs were properly paid overtime based on time and a half for hours over 40 worked in a week, then defendants would not be liable for wage and hour violations.

         In order to conduct this comparison, the Court must first determine the regular hourly rate of plaintiffs' activities based on the evidence before the Court.

         E. Burden of Proof

         Both the FLSA and the NYLL provide a burden-shifting framework for proving wage violations. Under the FLSA, an employee may meet his or her burden of proof by producing “sufficient evidence from which violations of [the FLSA] and the amount of an award may be reasonably inferred.” Reich v. Southern New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997). If an employee offers such evidence, an employer must then “come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee's evidence.” Yu Y. Ho v. Sim Enterps., Inc., No. 11 CV 2855, 2014 WL 1998237, at *14 (S.D.N.Y. May 14, 2014) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688-89 (1946)). If an employer fails to present such evidence, the court ...

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