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Lu v. Nails By Ann, Inc.

United States District Court, S.D. New York

September 1, 2017

JIANJING LU, Plaintiff,


          Vincent L. Briccetti, United States District Judge.

         Plaintiff JianJing Lu brings this action under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), claiming defendants Nails By Ann, Inc. d/b/a Nail House (“Nail House”), and Myong Hee Kim[1] failed to pay her the minimum and overtime wages, and failed to provide required wage notices and statements.

         Before the Court is plaintiff's motion for summary judgment regarding her unpaid overtime claim and her claims for failure to provide wage notices and statements. (Doc. #37).

         For the reasons set forth below, plaintiff's motion is GRANTED.

         The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367(a).


         Plaintiff submitted a statement of undisputed material facts as required by Local Civil Rule 56.1 (“SOF”), and a declaration (“Decl.”) with supporting exhibits. Defendants did not submit a response to the SOF, or any evidence in response to the SOF. See Local Rule 56.1(b) (“papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party”). Because defendants failed to respond to plaintiff's SOF, pursuant to Local Rule 56.1(c), the Court deems established the facts asserted in the SOF. See T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 417-18 (2d Cir. 2009). Plaintiff's submissions establish the following factual background.

         Plaintiff worked as a nail technician at defendants' Larchmont, New York, nail salon, Nail House, from December 2008 to August 2015. Defendant Myong Hee Kim was at all relevant times the owner and principal of Nail House, and was the only person with authority “to hire and fire employees” and to “set wages and schedules, and maintain employee records.” (SOF ¶ 4).

         On days plaintiff worked, she did so for nine hours, with the exception of Sundays, when she worked six and one-half hours. During her employment at Nail House, there were many weeks she worked more than five days and more than forty hours.[2] Defendants paid plaintiff a fixed rate of $75 per day in cash, regardless of how many hours she worked that day or week. Defendants did not provide plaintiff paystubs or any wage statements and did not provide plaintiff notices describing her compensation at any time. At all times during plaintiff's employment, “Defendant Myong Hee Kim did not know anything about wage and hour laws or minimum wages, . . . had never heard of the minimum wage or overtime, ” and “did not do any research regarding the laws about paying employees.” (SOF ¶¶ 38-39).


         I. Legal Standard

         The Court must grant a motion for summary judgment if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         A fact is material when it “might affect the outcome of the suit under the governing law. . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A dispute about a material fact is genuine if there is sufficient evidence upon which a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010) (citation omitted). It is the moving party's burden to establish the absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).

         If the non-moving party has failed to make a sufficient showing on an essential element of his case on which he has the burden of proof, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable” evidence, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations omitted). The “mere existence of a scintilla of evidence in support” of the non-moving party's position is likewise insufficient; “there must be evidence on which the jury could reasonably find” for him. Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).

         On summary judgment, the Court construes the facts, resolves all ambiguities, and draws all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a reasonable inference could be drawn in favor of the non-moving party on the issue on which summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). In deciding a motion for summary judgment, the Court need only consider evidence that would be admissible at trial. Nora Bevs., Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998).

         II. Unpaid ...

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