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Michalow v. East Coast Restoration & Consulting Corp.

United States District Court, E.D. New York

March 31, 2018

DARIUSZ MICHALOW, et al., Plaintiffs,



         In this 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.[1]

         I. Background

         The 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 No. 58.)

         In July 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 at 6.)

         In 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.[2] (ECF No. 99.) Attorney Michael Rabinowitz opposed the motion for defendants - including, as relevant here, defendants Andrzej Kaczmarek and Midtown Restoration, Inc. (“Midtown”).[3] (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.)

         On July 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.)

         Ten 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.)

         Collectively, 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.)

         II. Discussion

         A. Legal Standards

         1. Review of Report and Recommendation

         A 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)).

         “‘[T]he 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. 15, 2010)).

         2. Summary Judgment Standard

         Summary 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).

         3. Employer Status under the FLSA and NYLL

         “The 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).

         In 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 ...

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