United States District Court, E.D. New York
DINORA ROMERO, on behalf of herself and all others similarly situated, Plaintiff,
BESTCARE INC., BESTCARE MANAGEMENT, INC., and LAWRENCE WIENER, Defendants.
Plaintiff: Neil Frank, Esq. Anthony Vincent Merrill, Esq.
Frank & Associates, P.C.
Defendants: Jonathan Paul Arfa, Esq. Jonathan P. Arfa, P.C.
MEMORANDUM & ORDER
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.
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.
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. (Compl. ¶¶ 16-17.)
was employed by Defendants from July 2012 to March 2014 and
was paid on an hourly basis. (Compl. ¶¶ 10-11.) She
worked at the Queen of the Rosary Motherhouse Complex in
Amityville, New York (the “Motherhouse”). (Compl.
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.)
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.)
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.)