Preview
FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017)
RECEIVED NYSCEF: 01/27/2020
2017 NY Slip Op 30434(U) papers 20-24; Other ___; (and after hearing
counsel in support and opposed to the
FRANCISCO LEOPOLDO ZAVALA, motion) it is,
Plaintiff,
v. ORDERED that the motion by the
411 HOLBROOK INC., d/b/a BELLO defendants for an order pursuant to CPLR
POULTRY MARKET, PNC., 3212, granting summary judgment dismissing
and ABDULSALEM MUSED, the complaint against defendant Abdulsalem
Defendants. Mused, is denied.
INDEX No. 13-30422 In this action, the plaintiff seeks to
recover damages arising, inter alia, from the
SUPREME COURT - STATE OF NEW defendants' failure to pay him overtime wages
YORK I.A.S. PART 10 - SUFFOLK and from their unlawful termination of his
COUNTY employment at Bello Poultry Market. It is
undisputed that Abdulsalem Mused is the
March 1, 2017 principal owner of 411 Holbrook, Inc., which
owns the building located at 411 Union
PUBLISH Avenue, Holbrook, New York, and that Mused
is also the principal owner of Bello Poultry
COPY Market, which operates a slaughterhouse at
that location.
SHORT FORM ORDER
As may be gleaned upon review of the
CAL. No. 16-00408-OT
complaint and the plaintiff's deposition
testimony, the plaintiff alleges that from
PRESENT: Hon. JOSEPH A. SANTORELLI
January 2012 to January 2013, he was
Justice of the Supreme Court
employed as a butcher by the defendants at a
MOTION DATE 8-5-16 rate of $11 per hour; that he regularly worked
ADJ. DATE 9-1-16 in excess of 40 hours per week; but that
Mot. Seq. # 001 - MD throughout the course of his employment, he
was paid at his regular hourly rate for all
FRANK & ASSOCIATES, P.C. hours worked. The plaintiffalso alleges that
Attorney for Plaintiff on December 24, 2012, he injured his finger
500 Bi-County Boulevard, Suite 465 at work while cutting pieces
Farmingdale, New York 11735
Page 2
HELD & HINES, LLP
Attorney for Defendants of meat; that as a result of his injury, he
2004 Ralph Avenue missed 13 days of work; that the defendants
Brooklyn, New York 11234 promised to pay his medical bills; that when
he returned to work in January 2013, he
Upon the following papers numbered 1 to submitted copies of his medical bills,which
24 read on this motion for summary totaled approximately $1,900.00; and that
judgment; Notice of Motion/ Order to Show the following day, the defendants terminated
Cause and supporting papers 1-14; Notice of his employment and refused to pay his
Cross Motion and supporting papers ___; medical bills. The plaintiff claims that the
Answering Affidavits and supporting papers defendants' failure to pay him overtime wages
15-19; Replying Affidavits and supporting was knowing and willful. Regarding the
-1-
FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017)
RECEIVED NYSCEF: 01/27/2020
termination of his employment, he claims 2) I make this Affidavit in
that he is an individual with a "disability" support of my motion seeking
within the meaning of Executive Law § 292 summary judgment against
(21), and that the defendants' decision to Plaintiff as I am not the
discharge him was based on his disability and employer of Plaintiff Francisco
lacked a legitimate, non-discriminatory Leopoldo Zavala pursuant to
justification. New York Labor Law.
The plaintiff pleads three causes of action 3) I do not have an office
in the complaint: the first, based on the located at 411 Union Avenue,
defendants' failure to pay overtime wages in Holbrook, New York 11741.
violation of Labor Law § 650, et seq. and 12
NYCRR 142-2.2, the second, for failure to 4) I do not supervise the
provide him with notice of his rate of pay and operations of Bello Poultry
the basis of his rate of pay as required under Market, Inc. located at 411
Labor Law § 195, and the third, alleging Union Avenue, Holbrook, New
discriminatory termination based on a known York 11741 (hereinafter referred
disability in violation of Executive Law § 296. to as "Bello Poultry").
The defendants, in their answer, allege 5) I do not supervise the day-to-
among a myriad of affirmative defenses that day operations of Bello Poultry.
the plaintiff "was not an employee of
Defendants 411 Holbrook, Inc. or Abdulsalem 6) I do not have control over the
Mused"; they also plead counterclaims for operations of Bello Poultry.
abuse of process and prima facie tort, to
which the plaintiff has duly replied. 7) I do not have control over the
day-to-day operations of Bello
Now, discovery having been completed Poultry.
and a note of issue having been filed on
March 8, 2016, the defendants timely move Page 3
for summary judgment dismissing the
complaint against Mused, based solely on the 8) I do not hire or fire any
defense that he was not the plaintiff's employees of Bello Poultry. I
employer. As proof of the defense, the have never hired or fired any
defendants rely exclusively on Mused's own employees of Bello Poultry.
affidavit, the text of which is reproduced
below in its entirety: 9) I do not supervise or control
the employee work schedules or
ABDULSALEM MUSED, being conditions of employment at
duly sworn, deposes and asserts Bello Poultry.
the truth of the following under
penalty of perjury: 10) I do not determine the rate
of pay or method of payment for
1) I am the Plaintiff [sic] in the wages, overtime, or any of the
above entitled action, and as like at Bello Poultry.
such, I am fully familiar with
the facts and circumstances 11) I do not set any standards of
contained herein. work or employment of
employees at Bello Poultry.
-2-
FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017)
RECEIVED NYSCEF: 01/27/2020
occupation, industry, trade, business or
12) There are numerous service." Labor Law § 651 (6) similarly defines
managers at Bello Poultry. I am "employer" to include "any individual,
not a manager at Bello Poultry. partnership, association, corporation, limited
liability company, business trust, legal
13) There are no employees at representative, or any organized group of
Bello Poultry that are under my persons acting as employer." In analyzing
exclusive direction or control. whether a person or entity may qualify as an
"employer" under those broad standards, this
14) I personally do not maintain court is bound to apply the same tests and
any employment records of consider the same factors as it would if it were
Bello Poultry. determining employer status under the FLSA
(e.g. Jin Dong Wang v LW Rest., 81 F
WHEREFORE, I respectfully Supp 3d 241 [ED
request that my motion for
summary judgment be granted Page 4
in its entirety, and for such
other further relief as this Court NY 2015] [and cases cited therein]),1 which
deems just and proper. defines "employer" to include "any person
acting directly or indirectly in the interest of
The plaintiff, in opposition, submits a an employer in relation to an employee" (29
copy of a transcript of Mused's testimony at USC § 203 [d]).
the plaintiff's May 6, 2015 hearing before the
Workers' Compensation Board, at which In determining, then, whether a person
Mused testified, inter alia, that from the time may be liable as an "employer" under the
he purchased the building and the poultry FLSA, the primary consideration is whether
business in 2011, he personally maintained the alleged employer possessed the power to
weekly "attendance" records for each of the control the worker in question, with an eye to
employees, indicating hours worked and the "economic reality" of the situation
amounts paid and bearing the signature of the (Herman v RSR Sec. Servs., 172 F3d 132
employee and his or her manager. [2d Cir 1999]). "Under the economic reality
test, the relevant factors include whether the
Under New York law, employees are alleged employer (1) had the power to hire
provided with wage and overtime protections and fire the employees, (2) supervised and
similar to those afforded under the Fair Labor controlled employee work schedules or
Standards Act (29 USC § 201, et seq.; conditions of employment, (3) determined
"FLSA"). Employers are required to pay the rate and method of payment, and (4)
employees overtime at a rate of one and one- maintained employment records" (id. at 139
half times their regular rate for time worked [internal quotation marks omitted]). No one
in excess of 40 hours during any work week, of the four factors, standing alone, is
unless they are exempt (12 NYCRR 142-2.2), dispositive (id.). A finding of "employer"
and may be held liable under New York's status, moreover, "does not require
overtime or minimum wage laws (Labor Law continuous monitoring of employees, looking
art 6, § 190 et seq.; Labor Law art 19, § 650 et over their shoulders at all times, or any sort of
seq.) for failure to do so. Under Labor Law § absolute control of one's employees. Control
190 (3), the term "employer" is defined may be restricted, or exercised only
expansively to include "any person, occasionally, without removing the
corporation, limited liability company, or employment relationship from the
association employing any individual in any protections of the FLSA" (id.). When
-3-
FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017)
RECEIVED NYSCEF: 01/27/2020
assessing, as here, whether an individual judgment is denied, therefore, with respect to
within the allegedly employing company may the first and second causes of action.
be personally liable as an "employer," a court
will also consider the extent to which that Page 5
individual possesses control over the
company's actual operations in a manner that As to the third (and final) cause of action,
relates to a plaintiff's employment (Irizarry and notwithstanding the breadth of relief
v Catsimatidas, 722 F3d 99 [2d Cir 2013], requested in their notice of motion, it is
cert denied ___ US ___, 134SCt 1516 apparent that the defendants failed in their
[2014]). Evidence indicating an individual's moving papers to offer any argument
direct control over a plaintiff employee, addressing the plaintiff's claim of unlawful
however, is not the only evidence to be discriminatory conduct; the court notes, in
considered; evidence showing an individual's any event, that an individual may be subject
authority over management, supervision, and to liability as an "employer" for violating
oversight of the company's affairs in general Executive Law § 296 (1) where, as here, he or
is also relevant (id.). "A person exercises she has an ownership interest in the
operational control over employees if his or employing company (Gorman v Covidien,
her role within the company, and the LLC, 146 F Supp 3d 509 [SD NY 2015];
decisions it entails, directly affect the nature Equal Empl. Opportunity Commn. v
or conditions of the employees' employment" Suffolk Laundry Servs., 48 F Supp 3d 497
(id. at 110). Since "the existence and degree of [ED NY 2014]; Warshun v New York
each relevant factor lends itself to factual Community Bancorp, 957 F Supp 2d 259
determinations * * * individual employer [ED NY 2013]).
liability is rarely suitable for summary
judgment" (Sethi v Narod, 974 F Supp 2d Accordingly, the motion is denied.
162, 187 [ED NY 2013] [internal quotation
marks and punctuation omitted]). Dated: MAR 01 2017
To obtain summary judgment on the /s/_________
HON. JOSEPH A. SANTORELLI
merits of a case, it is necessary that a party
J.S.C.
establish its cause of action or defense
"sufficiently to warrant the court as a matter
___ FINAL DISPOSITION X NON-
of law in directing judgment" in its favor
FINAL DISPOSITION
(CPLR 3212 [b]), and that it do so "by tender
of evidentiary proof in admissible form" --------
(Friends of Animals v Associated Fur
Mfrs., 46 NY2d 1065, 1067, 416 NYS2d 790, Footnotes:
792 [1979]; accord Zuckerman v City of
New York, 49 NY2d 557, 427 NYS2d 595
1. This statement of law derives from the
[1980]). federal district courts of the Second Circuit,
which generally treat the definition of
Upon review of the record presented, the "employer" under the Labor Law and under
court finds that is unable to determine as a the FLSA as coextensive. As the parties
matter of law whether Mused was an evidently agree that the statement is correct,
"employer" under the relevant provisions of and absent New York case law to the contrary,
the Labor Law. To the extent that the this court will proceed with its analysis
defendants rely on Mused's affidavit, the accordingly.
court finds it plainly insufficient. Summary
--------
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FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017)
RECEIVED NYSCEF: 01/27/2020
-5-
Preview
FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017) RECEIVED NYSCEF: 01/27/2020 2017 NY Slip Op 30434(U) papers 20-24; Other ___; (and after hearing counsel in support and opposed to the FRANCISCO LEOPOLDO ZAVALA, motion) it is, Plaintiff, v. ORDERED that the motion by the 411 HOLBROOK INC., d/b/a BELLO defendants for an order pursuant to CPLR POULTRY MARKET, PNC., 3212, granting summary judgment dismissing and ABDULSALEM MUSED, the complaint against defendant Abdulsalem Defendants. Mused, is denied. INDEX No. 13-30422 In this action, the plaintiff seeks to recover damages arising, inter alia, from the SUPREME COURT - STATE OF NEW defendants' failure to pay him overtime wages YORK I.A.S. PART 10 - SUFFOLK and from their unlawful termination of his COUNTY employment at Bello Poultry Market. It is undisputed that Abdulsalem Mused is the March 1, 2017 principal owner of 411 Holbrook, Inc., which owns the building located at 411 Union PUBLISH Avenue, Holbrook, New York, and that Mused is also the principal owner of Bello Poultry COPY Market, which operates a slaughterhouse at that location. SHORT FORM ORDER As may be gleaned upon review of the CAL. No. 16-00408-OT complaint and the plaintiff's deposition testimony, the plaintiff alleges that from PRESENT: Hon. JOSEPH A. SANTORELLI January 2012 to January 2013, he was Justice of the Supreme Court employed as a butcher by the defendants at a MOTION DATE 8-5-16 rate of $11 per hour; that he regularly worked ADJ. DATE 9-1-16 in excess of 40 hours per week; but that Mot. Seq. # 001 - MD throughout the course of his employment, he was paid at his regular hourly rate for all FRANK & ASSOCIATES, P.C. hours worked. The plaintiffalso alleges that Attorney for Plaintiff on December 24, 2012, he injured his finger 500 Bi-County Boulevard, Suite 465 at work while cutting pieces Farmingdale, New York 11735 Page 2 HELD & HINES, LLP Attorney for Defendants of meat; that as a result of his injury, he 2004 Ralph Avenue missed 13 days of work; that the defendants Brooklyn, New York 11234 promised to pay his medical bills; that when he returned to work in January 2013, he Upon the following papers numbered 1 to submitted copies of his medical bills,which 24 read on this motion for summary totaled approximately $1,900.00; and that judgment; Notice of Motion/ Order to Show the following day, the defendants terminated Cause and supporting papers 1-14; Notice of his employment and refused to pay his Cross Motion and supporting papers ___; medical bills. The plaintiff claims that the Answering Affidavits and supporting papers defendants' failure to pay him overtime wages 15-19; Replying Affidavits and supporting was knowing and willful. Regarding the -1- FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017) RECEIVED NYSCEF: 01/27/2020 termination of his employment, he claims 2) I make this Affidavit in that he is an individual with a "disability" support of my motion seeking within the meaning of Executive Law § 292 summary judgment against (21), and that the defendants' decision to Plaintiff as I am not the discharge him was based on his disability and employer of Plaintiff Francisco lacked a legitimate, non-discriminatory Leopoldo Zavala pursuant to justification. New York Labor Law. The plaintiff pleads three causes of action 3) I do not have an office in the complaint: the first, based on the located at 411 Union Avenue, defendants' failure to pay overtime wages in Holbrook, New York 11741. violation of Labor Law § 650, et seq. and 12 NYCRR 142-2.2, the second, for failure to 4) I do not supervise the provide him with notice of his rate of pay and operations of Bello Poultry the basis of his rate of pay as required under Market, Inc. located at 411 Labor Law § 195, and the third, alleging Union Avenue, Holbrook, New discriminatory termination based on a known York 11741 (hereinafter referred disability in violation of Executive Law § 296. to as "Bello Poultry"). The defendants, in their answer, allege 5) I do not supervise the day-to- among a myriad of affirmative defenses that day operations of Bello Poultry. the plaintiff "was not an employee of Defendants 411 Holbrook, Inc. or Abdulsalem 6) I do not have control over the Mused"; they also plead counterclaims for operations of Bello Poultry. abuse of process and prima facie tort, to which the plaintiff has duly replied. 7) I do not have control over the day-to-day operations of Bello Now, discovery having been completed Poultry. and a note of issue having been filed on March 8, 2016, the defendants timely move Page 3 for summary judgment dismissing the complaint against Mused, based solely on the 8) I do not hire or fire any defense that he was not the plaintiff's employees of Bello Poultry. I employer. As proof of the defense, the have never hired or fired any defendants rely exclusively on Mused's own employees of Bello Poultry. affidavit, the text of which is reproduced below in its entirety: 9) I do not supervise or control the employee work schedules or ABDULSALEM MUSED, being conditions of employment at duly sworn, deposes and asserts Bello Poultry. the truth of the following under penalty of perjury: 10) I do not determine the rate of pay or method of payment for 1) I am the Plaintiff [sic] in the wages, overtime, or any of the above entitled action, and as like at Bello Poultry. such, I am fully familiar with the facts and circumstances 11) I do not set any standards of contained herein. work or employment of employees at Bello Poultry. -2- FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017) RECEIVED NYSCEF: 01/27/2020 occupation, industry, trade, business or 12) There are numerous service." Labor Law § 651 (6) similarly defines managers at Bello Poultry. I am "employer" to include "any individual, not a manager at Bello Poultry. partnership, association, corporation, limited liability company, business trust, legal 13) There are no employees at representative, or any organized group of Bello Poultry that are under my persons acting as employer." In analyzing exclusive direction or control. whether a person or entity may qualify as an "employer" under those broad standards, this 14) I personally do not maintain court is bound to apply the same tests and any employment records of consider the same factors as it would if it were Bello Poultry. determining employer status under the FLSA (e.g. Jin Dong Wang v LW Rest., 81 F WHEREFORE, I respectfully Supp 3d 241 [ED request that my motion for summary judgment be granted Page 4 in its entirety, and for such other further relief as this Court NY 2015] [and cases cited therein]),1 which deems just and proper. defines "employer" to include "any person acting directly or indirectly in the interest of The plaintiff, in opposition, submits a an employer in relation to an employee" (29 copy of a transcript of Mused's testimony at USC § 203 [d]). the plaintiff's May 6, 2015 hearing before the Workers' Compensation Board, at which In determining, then, whether a person Mused testified, inter alia, that from the time may be liable as an "employer" under the he purchased the building and the poultry FLSA, the primary consideration is whether business in 2011, he personally maintained the alleged employer possessed the power to weekly "attendance" records for each of the control the worker in question, with an eye to employees, indicating hours worked and the "economic reality" of the situation amounts paid and bearing the signature of the (Herman v RSR Sec. Servs., 172 F3d 132 employee and his or her manager. [2d Cir 1999]). "Under the economic reality test, the relevant factors include whether the Under New York law, employees are alleged employer (1) had the power to hire provided with wage and overtime protections and fire the employees, (2) supervised and similar to those afforded under the Fair Labor controlled employee work schedules or Standards Act (29 USC § 201, et seq.; conditions of employment, (3) determined "FLSA"). Employers are required to pay the rate and method of payment, and (4) employees overtime at a rate of one and one- maintained employment records" (id. at 139 half times their regular rate for time worked [internal quotation marks omitted]). No one in excess of 40 hours during any work week, of the four factors, standing alone, is unless they are exempt (12 NYCRR 142-2.2), dispositive (id.). A finding of "employer" and may be held liable under New York's status, moreover, "does not require overtime or minimum wage laws (Labor Law continuous monitoring of employees, looking art 6, § 190 et seq.; Labor Law art 19, § 650 et over their shoulders at all times, or any sort of seq.) for failure to do so. Under Labor Law § absolute control of one's employees. Control 190 (3), the term "employer" is defined may be restricted, or exercised only expansively to include "any person, occasionally, without removing the corporation, limited liability company, or employment relationship from the association employing any individual in any protections of the FLSA" (id.). When -3- FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017) RECEIVED NYSCEF: 01/27/2020 assessing, as here, whether an individual judgment is denied, therefore, with respect to within the allegedly employing company may the first and second causes of action. be personally liable as an "employer," a court will also consider the extent to which that Page 5 individual possesses control over the company's actual operations in a manner that As to the third (and final) cause of action, relates to a plaintiff's employment (Irizarry and notwithstanding the breadth of relief v Catsimatidas, 722 F3d 99 [2d Cir 2013], requested in their notice of motion, it is cert denied ___ US ___, 134SCt 1516 apparent that the defendants failed in their [2014]). Evidence indicating an individual's moving papers to offer any argument direct control over a plaintiff employee, addressing the plaintiff's claim of unlawful however, is not the only evidence to be discriminatory conduct; the court notes, in considered; evidence showing an individual's any event, that an individual may be subject authority over management, supervision, and to liability as an "employer" for violating oversight of the company's affairs in general Executive Law § 296 (1) where, as here, he or is also relevant (id.). "A person exercises she has an ownership interest in the operational control over employees if his or employing company (Gorman v Covidien, her role within the company, and the LLC, 146 F Supp 3d 509 [SD NY 2015]; decisions it entails, directly affect the nature Equal Empl. Opportunity Commn. v or conditions of the employees' employment" Suffolk Laundry Servs., 48 F Supp 3d 497 (id. at 110). Since "the existence and degree of [ED NY 2014]; Warshun v New York each relevant factor lends itself to factual Community Bancorp, 957 F Supp 2d 259 determinations * * * individual employer [ED NY 2013]). liability is rarely suitable for summary judgment" (Sethi v Narod, 974 F Supp 2d Accordingly, the motion is denied. 162, 187 [ED NY 2013] [internal quotation marks and punctuation omitted]). Dated: MAR 01 2017 To obtain summary judgment on the /s/_________ HON. JOSEPH A. SANTORELLI merits of a case, it is necessary that a party J.S.C. establish its cause of action or defense "sufficiently to warrant the court as a matter ___ FINAL DISPOSITION X NON- of law in directing judgment" in its favor FINAL DISPOSITION (CPLR 3212 [b]), and that it do so "by tender of evidentiary proof in admissible form" -------- (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067, 416 NYS2d 790, Footnotes: 792 [1979]; accord Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 1. This statement of law derives from the [1980]). federal district courts of the Second Circuit, which generally treat the definition of Upon review of the record presented, the "employer" under the Labor Law and under court finds that is unable to determine as a the FLSA as coextensive. As the parties matter of law whether Mused was an evidently agree that the statement is correct, "employer" under the relevant provisions of and absent New York case law to the contrary, the Labor Law. To the extent that the this court will proceed with its analysis defendants rely on Mused's affidavit, the accordingly. court finds it plainly insufficient. Summary -------- -4- FILED: NEW YORK COUNTY CLERK 01/27/2020 12:37 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 205 Zavala v. 411 Holbrook Inc., 2017 NY Slip Op 30434(U) (N.Y. Sup. Ct. 2017) RECEIVED NYSCEF: 01/27/2020 -5-