United States District Court, E.D. New York
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
Defendants: Andrew E. Curto, Esq. Frank W. Brennan, Esq.
Gregory S. Lisi, Esq. Forchelli, Curto, Deegan, Schwartz,
Mineo & Terrana, LLP
MEMORANDUM & ORDER
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).
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.
Greenbrier Hires Roger
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.)
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.)
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. (Roger's 56.1
Counterstmt. ¶ 17.)
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.)
Dorothy's Relationship with Greenbrier
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.)
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.)
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).
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.” (Defs.' Dorothy 56.1 Stmt. ¶
41; Aff. of Income, Brennan Decl. Ex. 5, Docket Entry 56-5,
at ECF p. 4.)
May 2012 Letter to Defendants
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.
August 2012 Commission Agreement with Thek
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.
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.)
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.)
Emmett's Other Communications with Dorothy
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.
The Boiler Replacement Project
about 2013, Defendants replaced the boilers at
Greenbrier. (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.)
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. (Roger Dep. 112:19-113:4.) According to
Roger, Mike ultimately “made a few comments”
criticizing Roger's work on the circulator pumps. (Roger
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.)
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.
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 with Lieb of Vea Las Vistas, Inc.
(Defs.' Dorothy 56.1 Stmt. ¶ 54.)
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.(Defs.' Dorothy 56.1 Stmt. ¶ 58.)
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.)
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.)
Defendants Fire Roger
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. ¶¶
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.)
Plaintiffs Notify Defendants of Their Claims
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.)
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.)
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 ...