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Romero v. Bestcare, Inc.

United States District Court, E.D. New York

March 29, 2017

DINORA ROMERO, on behalf of herself and all others similarly situated, Plaintiff,
v.
BESTCARE INC., BESTCARE MANAGEMENT, INC., and LAWRENCE WIENER, Defendants.

          For Plaintiff: Neil Frank, Esq. Anthony Vincent Merrill, Esq. Frank & Associates, P.C.

          For Defendants: Jonathan Paul Arfa, Esq. Jonathan P. Arfa, P.C.

          MEMORANDUM & ORDER

          Joanna Seybert, U.S.D.J.

         Plaintiff Dinora Romero (“Plaintiff”) commenced this action against Bestcare, Inc., Bestcare Management, Inc. and Lawrence Wiener (collectively “Defendants”) on December 30, 2015. (Compl., Docket Entry 1.) She alleges that Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and New York State Labor Law Article 19, § 650 et seq. (“NYSLL”).

         Currently pending before the Court are: (1) Defendants' motion to dismiss Plaintiff's FLSA claim for failure to state a claim (Defs.' Mot., Docket Entry 18) and (2) Magistrate Judge Gary R. Brown's Report and Recommendation (the “R&R”) recommending that the Court deny Defendants' motion (R&R, Docket Entry 24). Defendants filed objections to the R&R. (Obj., Docket Entry 26.) For the following reasons, Defendants' objections are OVERRULED, and the R&R is ADOPTED in its entirety. Defendants' motion to dismiss is DENIED.

         BACKGROUND

         I. Factual Background[1]

         Defendants Bestcare Inc. and Bestcare Management, Inc. are New York corporations engaged in the home health care business. (Compl. ¶ 14.) Defendant Lawrence Wiener is the owner, operator, and chief executive officer of Bestcare Inc. and Bestcare Management, Inc.[2] (Compl. ¶¶ 16-17.)

         Plaintiff was employed by Defendants from July 2012 to March 2014 and was paid on an hourly basis.[3] (Compl. ¶¶ 10-11.) She worked at the Queen of the Rosary Motherhouse Complex in Amityville, New York (the “Motherhouse”). (Compl. ¶ 11.)

         Plaintiff alleges that she “performed non-exempt duties” including “caring for the physical needs of infirm patients/residents of the facility, . . . [and] assisting patients with their daily needs, including bathing, feeding, dressing, ambulating and transporting them for meals and designated activities.” (Compl. ¶ 12.) Plaintiff alleges that while she was employed by Defendants, she regularly worked between seventy and eighty hours per week but was not paid overtime wages or spread of hours pay. (Compl. ¶¶ 22-23.) Specifically, she alleges that she worked from 7:00 a.m. to 7:00 p.m. six to seven days per week. (Compl. ¶ 22.) Plaintiff also alleges that Defendants failed to maintain accurate records and failed to reimburse her for the price of uniforms as required by statute. (Compl. ¶¶ 24-27.)

         II. Procedural History

         The Complaint was filed on December 30, 2015. (See, Compl.) Plaintiff asserts four causes of action: (1) to recover unpaid overtime wages under the FLSA, (Compl. ¶¶ 45-55); (2) to recover unpaid overtime wages under the NYSLL, (Compl. ¶¶ 56-61); (3) to recover spread of hours pay under the NYSLL, (Compl. ¶¶ 62-67); and (4) to recover the uniform allowance provided for by the NYSLL, (Compl. ¶¶ 68-71). On April 4, 2016, Defendants requested a pre-motion conference to discuss their anticipated motion to dismiss. (Defs.' Ltr., Docket Entry 15.) At the conference, the Court granted Defendants leave to move to dismiss Plaintiff's first cause of action based on the FLSA's companionship exemption, which exempts certain employees from the overtime wage provisions of the FLSA. (Minute Order, Docket Entry 17.) The parties agreed that whether Plaintiff is exempt hinges on whether the Motherhouse is considered a private home under the applicable regulation, and Plaintiff agreed to voluntarily dismiss the case, including the three state law claims, if Defendants' motion was granted. (See, Minute Order.) On July 20, 2016, Defendants filed their motion to dismiss. (See, Defs.' Mot.) Plaintiff filed her opposition on August 22, 2016, and Defendants filed their reply on September 13, 2016. (Pl.'s Opp., Docket Entry 20; Defs.' Reply, Docket Entry 22.)

         On October 13, 2016, the undersigned referred Defendants' motion to Judge Brown for a report and recommendation on whether the motion should be granted. (Referral Order, Docket Entry 23.) On February 8, 2017, Judge Brown recommended that the Court deny Defendants' motion. Defendants' filed objections to the R&R on February 28, 2017, and Plaintiff responded to Defendants' objections on March 16, 2017. (Obj.; Opp. to Obj., Docket Entry 28.)

         THE ...


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