United States District Court, E.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE.
collective and class action brought under the Fair Labor
Standards Act (“FLSA”) and New York Labor Law
(“NYLL”), the plaintiffs have moved for summary
judgment against the defendants as to liability only. Upon a
referral from Judge Sandra L. Townes, Magistrate Judge Robert
M. Levy issued a report and recommendation, in which he
concluded that summary judgment should be granted against
four defendants and denied against the remaining six
defendants. (ECF No. 116, Report and Recommendation
(“R&R”).) The four defendants whom Judge Levy
found to be liable have objected to the report. Two pro
se plaintiffs have also filed objections. For the
reasons set forth below, the Court overrules all objections
and adopts the report in its entirety.
Court assumes familiarity with this case's procedural and
factual history as set forth in Judge Levy's report.
(See R&R at 1-6.) In brief, three plaintiffs -
all of whom were construction workers allegedly employed by
defendants - commenced this action in December 2009, on
behalf of themselves and others similarly situated, seeking
damages under the FLSA and NYLL. (ECF No. 1.) In June 2010,
the Honorable Marilyn D. Go, the magistrate judge initially
assigned to this case, so-ordered the parties'
stipulation certifying the case as a collective action under
the FLSA. (R&R at 4; ECF No. 12.) In January 2012, Judge
Townes certified the case as a class action under the NYLL.
(R&R at 5; ECF No. 32.) Plaintiffs' counsel, Virginia
& Ambinder, LLP, was designated to represent the class
and the plaintiffs who joined the collective action. (ECF
Nos. 12, 31, 32.) In November 2012, plaintiffs filed an
amended complaint, in which they added a fourth plaintiff and
several additional defendants (for 10 defendants total). (ECF
2014, after the close of discovery, Virginia & Ambinder
moved to withdraw as counsel for two named plaintiffs, Tomasz
Helwing and Sebastian Tkaczyk, citing a
“‘fundamental disagreement'” that
created a conflict of interest between the firm's duty to
represent the class and its duty to represent these two
individuals. (R&R at 5.) Judge Go granted the firm's
motion to withdraw as counsel for Helwing and Tkaczyk.
(Id.; ECF No. 86). Virginia & Ambinder continues
to represent all other plaintiffs and class members. (R&R
November 2014, Virginia & Ambinder filed a motion for
summary judgment as to liability only on behalf of all
plaintiffs and class members, except Helwing and
Tkaczyk. (ECF No. 99.) Attorney Michael Rabinowitz
opposed the motion for defendants - including, as relevant
here, defendants Andrzej Kaczmarek and Midtown Restoration,
Inc. (“Midtown”). (ECF No. 98.) Judge Townes
referred plaintiffs' motion for summary judgment to Judge
Go for a report and recommendation. (ECF entry dated
11/6/2014.) After the case was reassigned to him, Judge Levy
scheduled oral argument, which took place in March 2017. (ECF
entries dated 11/23/2016, 12/2/2016, and 1/10/2017.)
11, 2017, Judge Levy issued a report in which he recommended
that summary judgment be granted against four defendants -
Kaczmarek, Midtown, Karol Marcisquak (“K.
Marcisquak”), and East Coast Restoration &
Consulting Corp. (“ECRC”) - and denied against
the six other defendants. (R&R at 2, 29.)
days later, in a letter to the Court dated July 21, 2017,
defendant Kaczmarek stated that he had “lost
trust” in Rabinowitz and was therefore discharging him
as his counsel. (ECF No. 118.) In October 2017, two attorneys
from the law firm Portale Randazzo LLP filed notices of
appearance on Kaczmarek's behalf (ECF Nos. 123, 124), and
Judge Levy substituted Portale Randazzo as counsel for
Kaczmarek. (Text-Only Order dated 10/16/2017.)
the parties have filed three sets of objections to Judge
Levy's report. First, defendant Kaczmarek, through his
new counsel, objects to the finding that he is liable for the
wage-and-hour violations as plaintiffs' employer. (ECF
No. 128, Kaczmarek's Objections (“Kaczmarek's
Objs.”).) Second, defendants K. Marcisquak, ECRC, and
Midtown - all of whom continue to be represented by
Rabinowitz - object to Judge Levy's finding them liable.
(ECF No. 127, K. Marcisquak, ECRC, and Midtown's
Objections (“Defs.' Objs.”).) Third, pro
se plaintiffs Helwing and Tkaczyk jointly filed
objections in which they appear to contend that Judge Levy
erred by recommending that summary judgment be denied against
defendants Grzegorz Sobolewski and Marcin Podgorny. (ECF No.
120, Helwing and Tkaczyk's Objections (“Pls.'
Objs.”).) The remaining plaintiffs and class members -
who continue to be represented by Virginia & Ambinder -
argue that Judge Levy's report should be adopted in its
entirety. (ECF No. 131.)
Review of Report and Recommendation
district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). If a
party makes specific and timely written objections to the
magistrate judge's findings and recommendations, the
district court must review de novo “those
portions of the report . . . to which objection is
made.” Id.; see also Fed. R. Civ. P. 72(b)(3).
However, if “no objections are made, or if an objection
is general, conclusory, perfunctory, or a mere reiteration of
an argument made to the magistrate judge, a district court
need review that aspect of a report [and] recommendation only
for clear error.” Bassett v. Elec. Arts, Inc.,
93 F.Supp.3d 95, 101 (E.D.N.Y. 2015) (quoting Rahman v.
Fischer, No. 10-CV-1496 (LEK) (TWD), 2014 WL 688980, at
*1 (N.D.N.Y. Feb. 20, 2014)).
submissions of a pro se litigant must be construed
liberally and interpreted ‘to raise the strongest
arguments that they suggest.'” Figueroa v. City
of New York, No. 11-CV-3160 (ARR) (CLP), 2017 WL
6596631, at *2 (E.D.N.Y. Dec. 22, 2017) (quoting
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006)). Yet “‘even a pro se
party's objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the
magistrate's proposal.'” Id. (quoting
Howell v. Port Chester Police Station, No.
09-CV-1651 (CS) (LMS), 2010 WL 930981, at *1 (S.D.N.Y. Mar.
Summary Judgment Standard
judgment is appropriate where “the evidence, viewed in
the light most favorable to the party against whom it was
entered, demonstrates that there are no genuine issues of
material fact and that the judgment is warranted as a matter
of law.” Delaney v. Bank of Am. Corp., 766
F.3d 163, 167 (2d Cir. 2014) (internal quotation marks
omitted); see also Fed. R. Civ. P. 56(a). “A
fact is material if it might affect the outcome of the suit
under the governing law, and an issue of fact is
‘genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Windsor v. United States, 699 F.3d 169, 192 (2d Cir.
2012) (internal quotation marks and alteration omitted).
Employer Status under the FLSA and NYLL
FLSA and the NYLL apply only to ‘employers.'”
Charvac v. M & T Project Managers of New York,
Inc., No. 12-CV-5637 (CBA) (RER), 2015 WL 5475531, at *2
(E.D.N.Y. June 17, 2015), adopted as modified, 2015
WL 5518348 (E.D.N.Y. Sept. 17, 2015). The FLSA broadly
defines an “employer” as “any person acting
directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d);
see also Charvac, 2015 WL 5475531, at *3
(“Like the FLSA, the NYLL definition of
‘employer' is an expansive one . . . .”).
“[T]he determination of whether an employer-employee
relationship exists for purposes of the FLSA should be
grounded in ‘economic reality rather than technical
concepts[.]'” Barfield v. New York City Health
& Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 2008)
(quoting Goldberg v. Whitaker House Coop., Inc., 366
U.S. 28, 33 (1961)); see also, e.g., Chen v. DG&S NY,
Inc., No. 14-CV-3435 (LDH) (RLM), 2016 WL 5678543, at *2
(E.D.N.Y. Sept. 29, 2016) (applying the “economic
reality” test to FLSA and NYLL claims).
Carter v. Dutchess Community College,735 F.2d 8 (2d
Cir. 1984), the Second Circuit articulated four factors to
guide this inquiry. These factors are “whether the
alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained employment
records.” Carter, 735 F.2d at 12 (internal
quotation marks omitted). “[N]o one of these ...