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Aquino v. El Gran Valle II Corp.

United States District Court, S.D. New York

November 9, 2017

CARLOS AQUINO, Plaintiff,
v.
EL GRAN VALLE II CORP. and EDWIN CORONADO, Defendants.

          OPINION & ORDER

          KATHERINE B. FORREST United States District Judge

         On April 5, 2017, plaintiff filed this action under the Fair Labor Standards Act (“FLSA”) and New York Labor Law for defendants' alleged failure to pay the state and federal minimum wages, overtime, and New York's “spread of hours” premium, as well as their failure to provide accurate weekly wage statements as required by New York's Wage Theft Prevention Act. (Compl., ECF No. 1.) Pending before the Court is defendants' motion for summary judgment. (ECF No. 25.) The crux of that motion is that defendants are not covered entities under FLSA and thus cannot be sued for violating its provisions. For the reasons stated below, that motion is GRANTED.

         I. BACKGROUND[1]

         Defendant El Gran Valle II Corporation is “in the food service business” and sells Latin cuisine to “local Bronx customers.” (Pl.'s Rule 56.1 Counterstatement ¶ 6.) Plaintiff was employed by defendants from September 24, 2013 until March 29, 2017 as a cook's helper, maintenance person, and dishwasher. (Decl. of Pl. Carlos Aquino Opp. Def.'s Mot. for Summ. J. (“Aquino Decl.”), ECF No. 30-1, ¶ 2; see also Pl.'s Rule 56.1 Counterstatement ¶ 1.) He worked six days per week: eight hours per day on Tuesdays, Wednesdays, Thursdays, and Fridays, and eleven hours per day on Saturdays and Sundays. (Aquino Decl. ¶ 5.) This amounts to fifty-four hours per week. (Id. ¶ 6.) Plaintiff was paid in cash, never received paystubs, and was not provided with a “time clock, sign in sheet, or any other method for employees to track their time.” (Id. ¶¶ 7-8, 12.)

         From September 2013 until December 2014, plaintiff was paid $200 per week; from January 2015 until the end of his employment, he was paid $250 per week. (Id. ¶ 9.) Every second week, defendants deducted $35 from his pay, and every fourth week, they deducted an addition $50. (Id. ¶ 9.) Plaintiff was not paid overtime in any form. (Id. ¶¶ 10-11.)

         Plaintiff and defendants disagree on the restaurant's annual revenues. Plaintiff “estimate[s] that sales each week totaled $15, 000 to $20, 000.” (Aquino Decl. ¶ 13.) Plaintiff's assertion is conclusory and not supported by specific facts. Counsel asserts that it is based on plaintiff's knowledge derived from performing his job responsibilities. However, no facts in plaintiff's declaration support knowledge of amounts paid by customers. Defendant claims its gross revenues were as follows: $53, 686 in 201; $166, 458 in 2014; $230, 202 in 2015; and $255, 684 in 2016. (Pl.'s Rule 56.1 Counterstatement ¶ 4.) As support, defendants submitted the restaurant's tax returns from 2013-2016, which confirm these amounts. (ECF Nos. 25-3 (“2013 Tax Return”), 25-4 (“2014 Tax Return”), 25-5 (“2015 Tax Return”), 25-6 (“2013 Tax Return”) (collectively, the “Tax Returns”).) Each of the tax returns was signed by the president of the corporation and includes the information of the paid tax preparation firm that, presumably, prepared the forms.[2] (2013 Tax Return at 1; 2014 Tax Return at 1; 2015 Tax Return at 1; 2016 Tax Return at 1.)

         II. PROCEDURAL POSTURE

          Defendants' motion for dismissal of plaintiff's claims is based on an assertion that FLSA covers neither plaintiff nor defendant. (Mem. Supp. at 3.) From this, defendants conclude that the court is without subject matter jurisdiction. (Id.) As the Court noted in its order of October 17, 2017, it construes this motion as directed to both or either of an assertion that there is no subject matter jurisdiction and/or an assertion that plaintiff has not proven a required element for a FLSA claim. (ECF No. 31 at 1.)[3]

         III. LEGAL STANDARDS

         A. Pleading Standard

         Summary judgment may be granted when a movant shows, based on admissible evidence in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In reviewing a motion for summary judgment, the Court construes all evidence in the light most favorable to the nonmoving party, and draws all inferences and resolves all ambiguities in its favor. Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). The Court's role is to determine whether there are any triable issues of material fact, not to weigh the evidence or resolve any factual disputes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

         A court may not grant summary judgment merely because a motion is unopposed. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Fed.R.Civ.P. 56(e) (stating that when a non-moving party fails to oppose a summary judgment motion, “summary judgment, if appropriate, shall be entered against” it). Instead, the Court must examine record to determine if the moving party “has met its burden of demonstrating that no material issue of fact remains for trial.” See Vermont Teddy Bear, 373 F.3d at 244 (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)). “In doing so, the court may rely on other evidence in the record even if uncited.” Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014) (citing Fed.R.Civ.P. 56(c)(3)). Even an unopposed motion for summary judgment fails “where the undisputed facts fail to ‘show that the moving party is entitled to judgment as a matter of law.'” Id. (quoting Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)).

         B. FLSA Coverage

         FLSA mandates a minimum wage for employees, 29 U.S.C. § 206(a) (2012), and requires that covered employees receive overtime pay when they work more than forty hours per week, id. § 207. FLSA is applicable when either an employer enterprise is covered or an individual employee is covered. To establish enterprise coverage, the plaintiff must show that the entity has, inter alia, ...


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