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Ramirez v. ABBA Builders Inc.

United States District Court, S.D. New York

February 21, 2018

RUDY RAMIREZ and ROGER ALEMAN, Plaintiffs,
v.
ABBA BUILDERS INC., NABA ENTERPRISES, INC., SLAVIK ABAYEV a/k/a STEVEN ABBA, 220 COSTER, LLC, MIRON MARKUS and BORIS MARKUS, Defendants.

          Attorneys for Plaintiffs HUDSON VALLEY JUSTICE CENTER By: Maureen Hussain, Esq. Robert McCreanor, Esq.

          Attorneys for Defendants SINAYSKAYA YUNIVER, P.C. By: Irene Sinayskaya, Esq.

          OPINION

          BOBERT W. SWEET, J.

         Defendants Abba Builders, Inc. ("Abba Builders"), Naba Enterprises, Inc. ("Naba"), Slavik Abayev a/k/a Steven Abba ("Abba" and, collectively, the "Moving Defendants") have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint of Plaintiffs Rudy Ramirez ("Ramirez") and Roger Aleman ("Aleman, " and, together with Ramirez, the "Plaintiffs"), which alleges violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seg. and New York Labor Law ("NYLL") Article 19 § 650, et seg. Based upon the conclusions set forth below, the Moving Defendants' motion is denied.

         Prior Proceedings

         On November 8, 2017, Plaintiffs filed their complaint, which alleges violations of the FLSA and NYLL. See Compl. ¶¶ 31-40, Dkt. No. 1.

         On December 27, 2017, Moving Defendants filed the instant motion to dismiss. Dkt. No. 29. The motion was heard and marked fully submitted on February 15, 2018.

         Facts

         The complaint sets forth the following facts, which are assumed true for the purpose of this motion to dismiss. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

         Abba is the Chief Executive Officer of Abba Builders and Naba. Compl. ¶ 12. Defendants Boris Markus ("Boris"), and Miron Markus ("Miron") are the owners of 220 Coster, LLC ("220 Coster LLC" and, together with Boris, Miron, and the Moving Defendants, the "Defendants"), which owns the premises at 220 Coster Street in the Bronx, New York ("220 Coster"). Compl. ¶ 13. During the period covered by the Plaintiffs' complaint, March 2015 to March 2016, Defendants made all relevant decisions regarding Plaintiffs' wages, working conditions, and employment status, including the ability to hire or fire Plaintiffs, set wages, and retain time and wage records. Compl. ¶¶ 15-16.

         Around March 2015, Ramirez and Alemen were hired by Defendants as construction workers to assist in building a commercial building at 220 Coster. Compl. ¶¶ 19-20. From that March until around November 2015, Abba, Boris, and Miron instructed Plaintiffs on tasks to be performed and provided Plaintiffs with equipment necessary for their work. Compl. ¶ 21. During this time period, Plaintiffs regularly worked from 7AM to 4:30PM, Monday through Saturday, with, at most, one half-hour break per day. Compl. ¶ 22. Ramirez was paid $40 an hour, and Aleman was paid $25 an hour; neither received a premium rate for hours worked in excess of 40 in a work week. Compl. ¶¶ 23-25.

         ORDER

         Starting around November 2015, Defendants instructed Plaintiffs that the construction timeframe had to be moved faster and that Plaintiffs would be paid for their expedited labor upon completion of 220 Coster. Compl. ¶¶ 25-26. From then until about March 2016, Plaintiffs worked upwards of 16 to 18 hours a day, sometimes 7 days a week, and did not receive any compensation during those months. Compl. ¶¶ 26-27.

         During their period of employment, Plaintiffs received neither a wage notice in either English or Spanish nor weekly wage ...


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