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Figurowski v. Marbil Investors, LLC

United States District Court, E.D. New York

March 30, 2018


          For Plaintiffs: Dorothy Figurowski Amrita Ashok-Khan, Esq. Joseph A. Myers, Esq. Patricia Lynne Boland, Esq. Neil Frank, Esq. Neil Frank and Associates, Roger Figurowski Amrita Ashok-Khan, Esq. Joseph A. Myers, Esq. Patricia Lynne Boland, Esq. Neil Frank, Esq. Neil Frank and Associates

          For Defendants: Andrew E. Curto, Esq. Frank W. Brennan, Esq. Gregory S. Lisi, Esq. Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP


          JOANNA SEYBERT, U.S.D.J.

         Pending before the Court are (1) Defendants Marbil Investors, LLC (“Marbil”), William J. Christie (“William”), and Emmett Christie's (“Emmett, ” and collectively, “Defendants”) motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, (Defs.' Dorothy Mot., Docket Entry 54), and (2) Defendants and Barbara Lieb's (“Lieb”) motion for summary judgment, (Defs.' Roger Mot., Docket Entry 73).

         For the following reasons, Defendants' motion on Dorothy's claims is GRANTED IN PART and DENIED IN PART, and Defendants' motion on Roger's claims is GRANTED IN PART and DENIED IN PART.


         I. Factual History

         A. Greenbrier Hires Roger

         In 1980, Marbil acquired the Greenbrier Luxury Garden Apartments (“Greenbrier”), a two-story, eighty-one-unit residential property in Patchogue, New York. (Defs.' Dorothy 56.1 Stmt. ¶¶ 23-24; Dorothy's Am. Compl., Docket Entry 26, ¶ 13.) Marbil retained Robert Thek (“Thek”) of Robert Thek & Associates (“RTA”) to serve as Greenbrier's property manager. (Defs.' Dorothy 56.1 Stmt. ¶ 25.) In that capacity, Thek was responsible for hiring, firing, recommending salaries and salary increases, and recommending benefits and benefit changes for all Greenbrier employees. (Defs.' Dorothy 56.1 Stmt. ¶¶ 26-27.)

         In 1992, after responding to a newspaper ad for a superintendent position, Roger met with Thek. (Defs.' Dorothy 56.1 Stmt. ¶¶ 28-29.) As a result of the meeting, RTA hired Roger to serve as a trial superintendent at the Country Club Gardens, which was not associated with Defendants. (Defs.' Dorothy 56.1 Stmt. ¶ 30.)

         Subsequently, in March 1992, Defendants hired Roger as the sole, live-in superintendent for Greenbrier. (Defs.' Dorothy 56.1 Stmt. ¶ 32.) His duties included performing building maintenance, supervising three to four workers, checking and showing apartments, calling potential tenants, collecting wage statements from potential tenants, collecting rent, assisting in tenant evictions, and addressing problems as they arose. (Defs.' Dorothy 56.1 Stmt. ¶ 33; Defs.' Roger 56.1 Stmt. ¶ 18.) During his deposition, Roger testified that he was hired to perform building maintenance, check and show apartments, collect rent, and supervise workers, and that he performed those duties from 1992 through 2014. (Roger Dep., Brennan Decl. Ex. 2, Docket Entry 56-2, 132:12-24, 139:20-140:16.) Plaintiffs dispute that at the time of his hire, Roger was responsible for collecting rent, calling potential tenants, collecting and reviewing wage statements from potential tenants, or assisting with tenant evictions.[3] (Roger's 56.1 Counterstmt. ¶ 17.)

         As payment for his duties, Roger received an annual wage and was permitted to reside with Dorothy and their four children, rent free, in Greenbrier apartment 311-2. (Defs.' Dorothy 56.1 Stmt. ¶¶ 34-35.)

         B. Dorothy's Relationship with Greenbrier

         The parties dispute whether Dorothy performed work for Greenbrier and Defendants. Roger testified that in 1992, only he was offered a position with Greenbrier and only he received pay from Greenbrier. (Roger Dep. 20:12-17.) Similarly, Dorothy testified that when Roger was hired, she did not discuss with William, a partner at Marbil, or Emmett, the overseer of superintendents at Marbil, (William Dep., Brennan Decl. Ex. 1, Docket Entry 56-1, 4:17-22), whether she was being hired to perform work at Greenbrier. (Dorothy Dep. 56:8-17). She testified that she was not performing work at that time, but that the work “came on as the years went by.” (Dorothy Dep. 56:15-17.) Additionally, she acknowledged that in 1992, Thek did not tell her that she would be a clerical worker or rental agent or that she would receive pay. (Dorothy Dep. 58:5-9, 94:2-6.)

         However, Dorothy also testified that after Roger was hired, she met with Thek, who explained that Roger was responsible for maintenance, but also discussed apartment rentals and suggested that she “help out” and “show a little bit.” (Dorothy Dep. 57:11-58:9.) Similarly, she testified that she was expected to help Roger show the apartments and “had work to do in the beginning.” (Dorothy Dep. 92:5-93:25.)

         Additionally, Dorothy testified that for the last ten years, Thek told her that she “need[ed] to get paid.” (Dorothy Dep. 94:2-18.) Roger also testified that six or seven years after his hire, Thek spoke to Dorothy about “trying to get her . . . paid for what she[ ] does, because she did answer all the phone calls, did all the E-mails and stuff like that.” (Roger Dep. 21:7-13.) Roger, however, acknowledged that those duties were initially assigned to and were never taken from him, (Roger Dep. 21:14-22:6), and Dorothy agreed that Roger was hired to perform those tasks, (Dorothy Dep. 104:15-24).

         1. Bankruptcy Filings

         A number of other events shed light on the nature of Dorothy's relationship with Greenbrier and Defendants. For instance, in 2009, Roger and Dorothy filed for bankruptcy in the U.S. Bankruptcy Court for the Eastern District of New York. (Defs.' Dorothy 56.1 Stmt. ¶ 39.) In support of their filing, they completed and filed with the bankruptcy court a document entitled “Schedule I - Current Income of Individual Debtor(s), ” on which they listed Dorothy's occupation as a “Homemaker” with no income. (Defs.' Dorothy 56.1 Stmt. ¶ 40; Schedule I, Brennan Decl. Ex. 5, Docket Entry 56-5, at ECF p. 2-3.) Additionally, Dorothy executed and presented to the bankruptcy court an “Affidavit of Income” testifying that she was a “homemaker.”[4] (Defs.' Dorothy 56.1 Stmt. ¶ 41; Aff. of Income, Brennan Decl. Ex. 5, Docket Entry 56-5, at ECF p. 4.)

         2. May 2012 Letter to Defendants

         Additionally, on or about May 14, 2012, Dorothy sent a letter to William to complain that, among other things, she and Roger had not been properly compensated and reimbursed for “expenses, ” including overtime compensation, unused vacation time, cell phones used for work, and commissions for renting apartments. (Defs.' Dorothy 56.1 Stmt. ¶ 42; Dorothy Dep. 134:4-13.) Dorothy testified that there was never an agreement that Defendants would reimburse her for these “expenses, ” (Dorothy Dep. 134:4-22), but she added that Thek told her many times over the years that he would pay her, or would tell William and Emmett to pay her, for her work at Greenbrier, (Dorothy Dep. 135:22-137:9). However, Dorothy was not paid as a result of the May 2012 letter. (See Defs.' Dorothy 56.1 Stmt. ¶¶ 42-43.)

         3. August 2012 Commission Agreement with Thek

         In or about August 2012, Dorothy and Thek agreed that Dorothy would be paid a $200 commission for each apartment she helped rent. (Defs.' Dorothy 56.1 Stmt. ¶ 44; Dorothy's 56.1 Counterstmt. ¶ 44; Dorothy Dep. 130:22-131:16.) Dorothy testified that Thek “want[ed]” William and Emmett to pay her, but that he never said that they agreed to the arrangement. (Dorothy Dep. 130:22-132:11.) Dorothy initially helped rent four (4) apartments and received a commission of $800, (Defs.' Dorothy 56.1 Stmt. ¶ 46), but in all, from about August 28, 2012 to June 25, 2013, Thek paid Dorothy $2, 400 in commissions for the rental of twelve (12) apartments at Greenbrier, (Defs.' Dorothy 56.1 Stmt. ¶ 49).

         Dorothy testified that Emmett “put a stop to” these payments because “whatever was given to [her] was supposed to be discussed between” Thek and Emmett, and the two had not discussed the arrangement. (Dorothy Dep. 132:25-133:19.) She testified further that on or about August 12, 2013, Emmett informed her that “it has been brought to [our] attention that Bob Thek . . . has been paying a $200 bonus for any apartment rented at Greenbrier and that $800 total has been made out to you in the last month's statement, which was unauthorized. This arrangement has never been discussed by anyone from this office and will cease immediately.” (Dorothy Dep. 224:21-225:12.)

         Plaintiffs aver that Emmett was aware of Dorothy's arrangement with Thek and of Thek's “promise to pay [Dorothy] for the work that she did for” Greenbrier, citing her testimony that she spoke to Emmett about being paid in “probably 2012 [or] 2013” and that Emmett responded that they could discuss the matter another time. (Dorothy's 56.1 Counterstmt. ¶ 50; Dorothy Dep. 96:15-97:11.) Additionally, Plaintiffs highlight a letter from William to Thek dated April 25, 2013 referencing Dorothy's commissions, which provides that the expenditure has “never been authorized or discussed with Emmett or me and, therefore, [it is] strictly unauthorized.” (Apr. 2013 Letter, Myers Decl. Ex. 20, Docket Entry 64-20.)

         4. Emmett's Other Communications with Dorothy

         Plaintiffs also aver that Emmett “had full knowledge that [Dorothy] was working for [Greenbrier], and would often provide her with work assignments.” (Dorothy's 56.1 Counterstmt. ¶ 50.) In support, Plaintiffs point to Dorothy's testimony that Emmett asked for updates about her work, (Dorothy Dep. 108:13-109:2), as well as work-related emails from Emmett to Dorothy or to “Roger/Dorothy” (Dorothy's 56.1 Counterstmt. ¶ 50; June 2011 Email, Myers Decl. Ex. 15, Docket Entry 64-15, at ECF p.2). For instance, on June 30, 2011, Emmett wrote: “Roger/Dorothy: With the vacancy count being high at Greenbrier, please continue to work these leads I am sending you.” (June 2011 Email, at ECF p.2; see also Nov. 2013 Email, Myers Decl. Ex. 16, Docket Entry 64-16, at ECF p. 4 (“Dorothy please forward me the 6 leases that you have there[.] I need them since we now have all of the leases in house. [T]hanks. Emmett.”).)

         C. The Boiler Replacement Project

         In or about 2013, Defendants replaced the boilers at Greenbrier.[5] (Defs.' Roger 56.1 Stmt. ¶ 22.) Defendants aver that Roger worked on the boilers despite being told not to do so, while Plaintiffs claim that Roger worked on them at the urging of the boiler technician, Mike. (Defs.' Roger 56.1 Stmt. ¶¶ 23-24; Roger's 56.1 Counterstmt. ¶¶ 23-24.) In any event, Roger testified that a worker whom he supervised, Jose, installed circulator pumps on the boilers, that Roger did not know in which direction they were supposed to be installed, and that one of the pumps was installed backwards under Roger's supervision. (Roger Dep. 113:5-114:24.)

         William testified that Roger was told “not to touch” the new boiler system. (William Dep. 22:10-13.) Additionally, Roger testified that “they”--presumably, Defendants--told him not to touch the boilers, but that Mike told him that “the supers are supposed to do the circulator” pumps, so Roger asked him for guidance.[6] (Roger Dep. 112:19-113:4.) According to Roger, Mike ultimately “made a few comments” criticizing Roger's work on the circulator pumps. (Roger Dep. 117:2-18.)

         D. Apartment 311-3

         In or about March 2013, Thek directed Roger to renovate the bathroom of and rent out apartment 311-3, the unit next to Plaintiffs' apartment. (Defs.' Roger 56.1 Stmt. ¶ 26.) In or about August 2013, after completing the renovation, Roger cut a hole through the wall of his and Dorothy's apartment so that they could access and occupy apartment 311-3, though the parties dispute the circumstances surrounding this action. (Defs.' Dorothy 56.1 Stmt. ¶ 51; Dorothy's 56.1 Counterstmt. ¶ 51.) Roger testified that without Emmett's or William's permission, he took over the apartment while Thek was no longer at Greenbrier. (Roger Dep. 98:15-99:8.) Dorothy, however, testified that Plaintiffs did not initially want to move into the apartment or cut a hole in the wall, but that Thek told them to do so and said that if they did not cut through the wall, he would. (Dorothy Dep. 158:7-24, 174:2-21.) Defendants aver that Thek instructed Plaintiffs to cut through their wall because of his diminished mental capacity, citing Roger's testimony that in Thek's last two years at Greenbrier, he was weakening “mostly physically” and that his mental capacity was “getting there, but not that bad.” (Defs.' Dorothy 56.1 Stmt. ¶ 51; Roger Dep. 98:4-14.)

         To power apartment 311-3, Plaintiffs ran an extension cord to the basement and tapped into the building's common power supply; however, the parties dispute whether this was authorized. (Defs.' Dorothy 56.1 Stmt. ¶ 52; Dorothy's 56.1 Counterstmt. ¶ 52.) Dorothy testified that rather than have the power company turn on the power to apartment 311-3, Plaintiffs told Thek that they would run a cord to the basement, and he consented. (Dorothy Dep. 161:12-162:8.) Roger testified that he ran the wire to draw power from the basement because he “didn't want to make any kind of [electric] bills there.” (Roger Dep. 44:24-46:13.)

         Around December 2013, Thek was terminated as Greenbrier's property manager, (Defs.' Dorothy 56.1 Stmt. ¶ 53; Dorothy's 56.1 Counterstmt. ¶ 53), because, as William testified, his “health was deteriorating [and] [w]e thought he wasn't of good sound mental mind. There were poor decisions being made. And things being overlooked. And certain things that were between him and Roger that I wasn't happy with.” (William Dep. 20:4-11). Marbil replaced Thek[7] with Lieb of Vea Las Vistas, Inc. (Defs.' Dorothy 56.1 Stmt. ¶ 54.)

         During a property inspection, Lieb discovered that Plaintiffs had cut through the wall of apartment 311-2, ran an extension cord to the basement of the building, and tapped into the building's power supply to occupy apartment 311-3. (Defs.' Dorothy 56.1 Stmt. ¶ 55.) She directed Plaintiffs to vacate apartment 311-3, fix the hole, and remove the wiring. (Defs.' Dorothy 56.1 Stmt. ¶ 56.) Plaintiffs obliged, and very soon thereafter, apartment 311-3 was rented for $1, 099 per month. (Defs.' Dorothy 56.1 Stmt. ¶ 57.) In all, Plaintiffs occupied apartment 311-3 from August 2013 through January 2014 without paying rent and without paying for any utilities that they used.[8](Defs.' Dorothy 56.1 Stmt. ¶ 58.)

         On January 27, 2014, Defendants advised Roger that the unauthorized occupancy and wiring of apartment 311-3 were illegal and extremely dangerous to the tenants of the building, and they put Roger on notice that, “based on these serious infractions, ” Defendants would evaluate his employment status. (Defs.' Dorothy 56.1 Stmt. ¶ 59; Dorothy Dep. 265:19-266:8.)

         Lieb also discovered that Plaintiffs had been occupying areas in the basement of the apartment building as a storage and laundry area without paying rent for their use, (Defs.' Dorothy 56.1 Stmt. ¶ 60), which Plaintiffs also claim was authorized by Thek, (Dorothy's 56.1 Counterstmt. ¶ 60; Dorothy Dep. 83:16-84:18). Additionally, Plaintiffs occupied another room for their children to use as an exercise space and did not pay rent for it. (Defs.' Dorothy 56.1 Stmt. ¶ 61.)

         E. Defendants Fire Roger

         On May 2, 2014, Defendants advised Roger, who Plaintiffs aver was 69 years old at the time, (Roger's Opp., Docket Entry 78, at 6), that they were terminating his employment. (Defs.' Dorothy 56.1 Stmt. ¶ 62.) Defendants allowed Plaintiffs to occupy apartment 311-2 through June 17, 2014, but directed Roger to turn in all of his keys to the Greenbrier complex. (Defs.' Dorothy 56.1 Stmt. ¶ 62.) Defendants advised Roger that they would pay him severance pay of four weeks' salary in two installments. (Defs.' Dorothy 56.1 Stmt. ¶ 62.) They paid him the first installment of $1, 065.52 on May 2, 2014, and said they would pay him the second installment when Plaintiffs vacated the apartment on June 17, 2014. (Defs.' Dorothy 56.1 Stmt. ¶¶ 62, 65.)

         After his termination, Roger returned his keys and Defendants secured the Greenbrier complex, including by having its new, younger, (Roger's Opp. at 13-14), superintendent, James Bagger (“Bagger”), lock the door to the basement storage room that Plaintiffs had been using. (Defs.' Dorothy 56.1 Stmt. ¶¶ 63-64; Defs.' Roger 56.1 Stmt. ¶ 50.) Thereafter, Plaintiffs requested that Defendants provide them access to the basement storage room so that they could remove their belongings, and Defendants granted them access. (Defs.' Dorothy 56.1 Stmt. ¶ 66.) Dorothy testified that the door was locked on May 2, 2014, and that it would be “locked off and on according to when [they] needed it.” (Dorothy Dep. 210:6-211:11.)

         F. Plaintiffs Notify Defendants of Their Claims

         On June 2, 2014, Plaintiffs' counsel wrote to Defendants and informed them for the first time that Plaintiffs intended to pursue them for age discrimination and wage and hour violations. (Defs.' Dorothy 56.1 Stmt. ¶ 70.)

         Plaintiffs claim that before Defendants were notified of this lawsuit, Dorothy was “freely permitted” to “coordinate with” Bagger to retrieve her belongings from the basement area, but that after their letter, Emmett had to approve all requests to enter the space, which restricted their access to the room. (Dorothy's 56.1 Counterstmt. ¶ 69.) Plaintiffs claim that Dorothy was required to “repeatedly ask the new superintendent” and Lieb to open the door, and that she was forced to email Defendants to obtain her belongings. (Dorothy's 56.1 Counterstmt. ¶ 69.) Dorothy also testified that Bagger told her that he could not unlock the space, and that she had to call Greenbrier. (Dorothy Dep. 211:22-212:8.) Roger testified that after sending the letter, Plaintiffs were granted supervised access to the basement storage area on several occasions to remove the remainder of his family's belongings. (Roger Dep. 157:18-24.) However, Plaintiffs claim that they were given only two hours to do so. (Roger's 56.1 Counterstmt. ¶ 47.)

         On or about June 17, 2014, Plaintiffs and their children vacated apartment 311-2 and took the apartment's refrigerator and stove. (Defs.' Dorothy 56.1 Stmt. ¶ 71; Roger Dep. 162:5-8.) Plaintiffs claim that they replaced the original appliances with their own, and that the refrigerator and stove were “not fixtures in the apartment ...

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