United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti, United States District Judge.
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
failed to pay her the minimum and overtime wages, and failed
to provide required wage notices and statements.
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).
reasons set forth below, plaintiff's motion is GRANTED.
Court has jurisdiction pursuant to 28 U.S.C. § 1331 and
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.
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).
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. 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).
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).
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).
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).
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).
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).