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Biberman v. 150 RFT Varick Corp.

United States District Court, S.D. New York

December 19, 2017

ARKADY BIBERMAN, Plaintiff,
v.
150 RFT VARICK CORP., d/b/a W.I.P./ GREENHOUSE; LUCKY STIFFS, INC.; LARRY HUGHES; MARK FASSET; HIRO SAI; JOEL Z. ROBINSON; ANDY S. OBERMAN, Defendants.

          MEMORANDUM DECISION & ORDER

          KATHERINE B. FORREST, UNITED STATES DISTRICT JUDGE

         On March 29, 2016, plaintiff Arkady Biberman filed this action against defendants 150 RFT Varick Corp. d/b/a WIP/Greenhouse (“150 RFT Varick”), Lucky Stiffs, Inc. (“Lucky Stiffs”), Larry Hughes, Mark Fasset, Hiro Sai, Joel Z. Robinson, and Andy S. Oberman, alleging violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). (ECF No. 1.)

         On October 12, 2016, the Court dismissed Joel Z. Robinson as a defendant. (ECF No. 67.) On February 13, 2017, the Court granted default judgment as to defendants 150 RFT Varick and Lucky Stiffs (ECF No. 68); on October 4, 2017, it granted default judgment as to defendants Fasset and Sai (ECF No. 112).

         The remaining individual defendants, Hughes and Oberman, now move for summary judgment. (ECF Nos. 110, 117.) For the reasons set forth below, defendants' motion is GRANTED.

         I. BACKGROUND

         A. Factual Background

         The facts below are drawn from plaintiff's complaint. Defendants dispute only that they are employers within the meaning of the FLSA.

         Plaintiff alleges that he was employed by defendants from approximately January 1, 2011 through July 31, 2014. (ECF No. 1, Compl. ¶¶ 17, 25.) Plaintiff states: 1) that in performing his duties for defendants, he provided services paid for by persons or entities outside the State of New York; 2) that at all relevant times defendants used goods and products moved or produced in interstate commerce to carry out their business; and 3) that defendants received gross annual revenue of at least $500, 000. (Id. ¶¶ 18-24.)

         Plaintiff further states that he worked 40 hours weekly. (Compl. ¶ 29-1.) Plaintiff alleges that between January 1, 2011, and May 7, 2014, defendants paid him a weekly salary of $1, 800 and after May 7, 2014, a weekly salary of $1, 240. (Compl. ¶ 29-2.) Plaintiff further alleges that defendants failed to pay him for work performed between June 1, 2014, and July 31, 2014. (Compl. ¶ 30.)

         Plaintiff asserts two causes of action: 1) “Violations of the FLSA, 29 U.S.C. § 201 et seq.;” and 2) “Violations of the New York Labor Law, Article 6 and Article 19.” (Compl. ¶¶ 34-44.)

         B. Procedural Background

         On September 11, 2017, and September 27, 2017, respectively, defendants Oberman and Hughes brought motions to dismiss, claiming in part, that they were improperly named as defendants. (ECF Nos. 91, 102.) On October 2, 2017, the Court denied Oberman's motion, stating that he had “failed to proffer any basis to support his claims that . . . he is not a proper defendant.” (ECF No. 108.) At that time, however, the Court noted that plaintiff's proffer was “extraordinarily thin” and suggested “that if Oberman does indeed have a factual basis for his claims” that he move under Rule 56 for Summary Judgment. (Id.) On October 4, 2017, the Court denied Hughes's motion, finding that plaintiff's complaint stated a claim, and that Hughes provided “only argument” in response. (ECF No. 113.)

         On October 3, 2017, and October 4, 2017, respectively, Oberman and Hughes submitted motions for summary judgment, attaching to them, inter alia, their sworn affidavits. (ECF Nos. 110, 115, 117, 119.) Plaintiff filed oppositions on October 5, 2017, and defendants filed replies on October 6, 2017. (ECF Nos. 123- 26.)

         On October 10, 2017, the Court, finding deficiencies in all submissions, gave defendants an additional opportunity to address their (lack of) relationship with the corporate co-defendants. At the same time, the Court informed plaintiff that the newspaper articles he had proffered were inadmissible, but that it would give the plaintiff an additional period of time in which to submit materials with evidentiary value. (ECF No. 127.) Defendants offered additional affidavits the following day; plaintiff requested additional time for discovery, and submitted a liquor license as evidence.[1] (ECF Nos. 128-30.) ...


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