United States District Court, S.D. New York
VALENTE GARCIA, FRANKLYN PEREZ, DELFINO TLACOPILGO, MIGUEL ROMERO LARA, MIGUEL BOTELLO GONZAGA, JESUS DELGADO, JUSTINO GARCIA, and LUIS MAGANA, Plaintiffs,
VILLAGE RED RESTAURANT CORP. d/b/a WAVERLY RESTAURANT, CHRISTINE SERAFIS KASAMPAS, and NICHOLAS SERAFIS, Defendants.
Pechman, Esq. Vivianna Morales, Esq. Lillian M. Marquez, Esq.
Pechman Law Group PLLC., Arthur H. Forman, Esq., John A.
Mitchell, Esq. Mitchell & Incantalupo.
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
plaintiffs - Valente Garcia, Franklyn Perez, Delfino
Tlacopilgo, Miguel Romero Lara, Miguel Botello Gonzaga, Jesus
Delgado, Justino Garcia, and Luis Magafia - bring this Fair
Labor Standards Act ("FLSA") and New York Labor Law
("NYLL") action against Village Red Restaurant
Corp. ("Village Red"), Christine Serafis, and
Nicholas Serafis. The plaintiffs allege that during their
employment at Waverly Restaurant ("Waverly"), the
defendants violated the FLSA's and NYLL's overtime,
minimum wage, and tools- of-the-trade provisions; the
plaintiffs also claim that the defendants' failure to
provide spread-of-hours pay, wage notices, and wage
statements violated the NYLL. The plaintiffs have moved for
summary judgment on their claims, seeking damages, liquidated
damages, prejudgment interest, attorneys' fees and costs,
and post-judgment interest. The defendants have cross-moved
for partial summary judgment, arguing that Ms. Serafis is not
the plaintiffs' employer. For the reasons that follow,
the defendants' motion is granted, and the
plaintiffs' motion is granted in part and denied in part.
is a twenty-four hour diner in Manhattan that provides both
dine-in and delivery services. (Plaintiffs' Statement of
Undisputed Facts (“Pl. 56.1 Statement”), ¶
1). Waverly was first opened in 1979 or 1980 by Mr. Serafis,
Gus Benetos, and John Siderakis. (Pl. 56.1 Statement, ¶
18). Later, Mr. Siderakis bought out his partners; however,
Mr. Serafis retained the right to purchase the restaurant and
continued to manage and operate Waverly. (Pl. 56.1 Statement,
¶¶ 19-20). In 1993, Mr. Serafis transferred the
purchase right to his daughter, Ms. Serafis, for
“estate purposes”; some time later, she exercised
this right. (Pl. 56.1 Statement, ¶¶ 21-23). There
was some collaboration between Mr. Serafis and Ms. Serafis in
the purchase of the restaurant, and Mr. Serafis told Ms.
Serafis that “we buy this business and it's for
you”; however, Mr. Serafis does not remember personally
providing any money to buy the restaurant and stated that he
“let my daughter buy the business instead of me.”
(Pl. 56.1 Statement, ¶¶ 23-24; Defendants' Rule
56.1 Statement (“Def. 56.1 Statement”), ¶ 6;
Plaintiffs' Rule 56.1 Counter Statement of Undisputed
Material Facts, ¶¶ 5-6). After the purchase, she
did not operate the restaurant but “gave [Mr. Serafis]
permission” to continue to manage Waverly. (Pl. 56.1
Statement, ¶ 29).
January 15, 2003, Village Red was incorporated, and it has
since owned and operated Waverly. (Pl. 56.1 Statement,
¶¶ 2-3). Ms. Serafis is the president and sole
shareholder of Village Red. (Pl. 56.1 Statement, ¶¶
7-9). The building where Waverly is located is owned by 135
Waverly Place LLC, and Ms. Serafis is the sole shareholder of
that entity. (Pl. 56.1 Statement, ¶ 16). Mr. Serafis and
Ms. Serafis have referred to Ms. Serafis as the
“owner” of Waverly even though it is owned by
Village Red. (Pl. 56.1 Statement, ¶¶ 10-11, 14-15).
Serafis testified at her deposition that she gave Mr. Serafis
complete authority to run the restaurant, and Mr. Serafis
continues to hire and fire employees and set wages,
schedules, policies, and pay practices. (Pl. 56.1 Statement,
¶¶ 29-35, 38). Mr. Serafis signs checks in Ms.
Serafis' name using a stamp bearing her signature. (Pl.
56.1 Statement, ¶¶ 45-47, 52-54). Ms. Serafis
received a yearly salary of around $60, 000.00 from Waverly
during the period at issue. (Pl. 56.1 Statement, ¶¶
66-70). Mr. Serafis “basically put everything he owns
in [Ms. Serafis'] name”; she also owns Mr.
Serafis' apartment. (Pl. 56.1 Statement, ¶¶
27-28). Ms. Serafis lives in Greece and does not oversee the
Waverly employees. (Def. 56.1 Statement, ¶¶ 18,
to 2011 or 2012, there was no apparent system at Waverly for
documenting employee work time or pay. (Pl. 56.1 Statement,
¶ 74). In 2011 or 2012, Mr. Serafis installed a time
clock; however, the records created by the time clock were
often not accurate because employees would forget to punch in
or out, and the time clock had a mechanical problem. (Pl.
56.1 Statement, ¶¶ 74-77). In 2014 and 2015, Mr.
Serafis and a manager began keeping accurate records of
employee pay in the “Red Book.” (Pl. 56.1
Statement, ¶¶ 78-80, 84-85). The Red Book shows
that the plaintiffs were paid weekly: generally, a daily
salary was multiplied by how many days were worked in a week;
the pay structure did not account for how many hours were
worked in a day. (Pl. 56.1 Statement, ¶¶ 86, 88;
Red Book, attached as Exh. S to Declaration of Louis Pechman
dated Jan. 31, 2017).
in January 2012, another set of books was created, but these
records were inaccurate and did not reflect what employees
were paid or how they were paid. (Pl. 56.1 Statement,
¶¶ 99, 115-118, 120-122). It shows the plaintiffs
being paid an hourly rate, an overtime rate, spread of hours,
tip credit, meal credit, and overtime pay. (Pl. 56.1
Statement, ¶ 104). The plaintiffs assert, and the
defendants do not appear to dispute, that there is no
apparent legitimate reason for this second set of records and
that the Red Book is the most accurate history of what the
plaintiffs were paid. (Pl. 56.1 Statement, ¶¶ 103,
117; Defendants' Responses to Plaintiffs' Local Rule
56.1 Statement (“Def. 56.1 Counter Statement”),
plaintiffs were waiters, servers, countermen, hosts, kitchen
helpers, and deliverymen during the relevant period. (Pl.
56.1 Statement, ¶¶ 149, 165, 184, 199, 220, 239,
259). They usually worked more than sixty hours per week.
(Pl. 56.1 Statement, ¶ 146). They were paid weekly in
cash based on a daily rate rather than an hourly rate. (Pl.
56.1 Statement, ¶¶ 116, 138, 269). They were not
provided wage statements or weekly paystubs during the period
at issue. (Pl. 56.1 Statement, ¶¶ 271-272).
their motion for summary judgment, the plaintiffs contend
that the defendants are their employers. They also argue that
if Ms. Serafis is found not to be their employer, then the
corporate veil should be pierced. The plaintiffs move on
their FLSA and NYLL claims, stating that they were not paid
overtime or minimum wages and that they were not compensated
for purchasing tools-of-the-trade. The plaintiffs also
contend that the defendants did not comply with the wage
notice, wage statement, or spread-of-hours provisions in the
NYLL. The plaintiffs seek compensatory damages, liquidated
damages, prejudgment interest, attorneys' fees and costs,
and post-judgment interest. On their motion for partial
summary judgment, the defendants contend that Ms. Serafis was
not the plaintiffs' employer under the FLSA or NYLL.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure, a court will
“grant summary judgment if the movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The moving party bears the initial burden
of identifying “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. The
opposing party then must come forward with specific materials
establishing the existence of a genuine dispute. Id.
at 324. Where the nonmoving party fails to make “a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial, ” summary
judgment must be granted. Id. at 322-23. Where
“the party opposing summary judgment bears the burden
of proof at trial, summary judgment should be granted if the
moving party can ‘point to an absence of evidence to
support an essential element of the nonmoving party's
claim.'” Gemmink v. Jay Peak Inc., 807
F.3d 46, 48 (2d Cir. 2015) (quoting Goenaga v. March of
Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.
assessing the record to determine whether there is a genuine
issue of material fact, the court must resolve all
ambiguities and draw all factual inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Smith v. Barnesandnoble.com,
LLC, 839 F.3d 163, 166 (2d Cir. 2016). However, the
court must inquire whether “there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party, ” Anderson, 477 U.S.
at 249, and summary judgment may be granted where the
nonmovant's evidence is conclusory, speculative, or not
significantly probative, id. at 249-50. When
evaluating cross-motions for summary judgment, the court
reviews each party's motion on its own merits, and draws
all reasonable inferences against the party whose motion is
under consideration. Morales v. Quintel Entertainment,
Inc., 249 F.3d 115, 121 (2d Cir. 2001).
The Defendants' Joint Liability as Employers
plaintiffs maintain that Village Red, Mr. Serafis, and Ms.
Serafis were their employers under to the FLSA and NYLL and
that the enterprise exceeded $500, 000.00 in annual gross
volume of sales during the relevant period. (Memorandum of
Law in Support of Plaintiffs' Motion for Summary Judgment
(“Pl. Memo.”) at 1-2). There is no doubt that
Village Red and Mr. Serafis were the plaintiffs'
employers, and Village Red and Mr. Serafis readily admit to
their employer status; the defendants also do not dispute the
FLSA coverage allegation. (Defendants' Memorandum of Law
in Support of Their Motion for Partial Summary Judgment
Dismissing the Complaint Against Christine Serafis
(“Def. Memo.”) at 7; Defendants' Memorandum
of Law in Opposition to Plaintiffs' Motion for Summary
Judgment (“Def. Opp. Memo.”) at 5; Def. 56.1
Counter Statement, ¶ 4). However, the defendants argue
that Ms. Serafis was not an employer because she never
participated in the operation of Waverly, maintaining that
she is the president and sole shareholder of the corporate
entities only for “estate tax purposes.” (Def.
Memo. at 9).
statutory definition of “employer” sweeps broadly
under the FLSA.Barfield v. New York City Health &
Hospitals Corp., 537 F.3d 132, 140 (2d Cir. 2008). An
employer “includes any person acting directly or
indirectly in the interest of an employer in relation to an
employee.” 29 U.S.C. § 203(d). An employee is
“any individual employed by an employer.” 29
U.S.C. § ...