United States District Court, S.D. New York
Attorneys for Plaintiffs HUDSON VALLEY JUSTICE CENTER By:
Maureen Hussain, Esq. Robert McCreanor, Esq.
Attorneys for Defendants SINAYSKAYA YUNIVER, P.C. By: Irene
W. SWEET, J.
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.
November 8, 2017, Plaintiffs filed their complaint, which
alleges violations of the FLSA and NYLL. See Compl.
¶¶ 31-40, Dkt. No. 1.
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.
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
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. ¶¶
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.
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.
their period of employment, Plaintiffs received neither a
wage notice in either English or Spanish nor weekly wage