Contrera v. Langer

• Decision Date: 05 March 2018
• Docket Number: 16 Civ. 3851 (LTS) (GWG)
• Citation: 290 F.Supp.3d 269
• Parties: Usvaldo CONTRERA et al., Plaintiffs, v. Irving LANGER et al., Defendants.
• Court: U.S. District Court — Southern District of New York

290 F.Supp.3d 269

Usvaldo CONTRERA et al., Plaintiffs,

v.Irving LANGER et al., Defendants.

16 Civ. 3851 (LTS) (GWG)

United States District Court, S.D. New York.

Signed March 5, 2018

Peter David Winebrake, The Winebrake Law Firm, LLC, Dresher, PA, Meredith Reade Miller, Miller Law, PLLC, Marc Andrew Rapaport, Rapaport Law Firm, PLLC, Christopher Robert Travis, New York, NY, for Plaintiffs.

Larry Rafael Martinez, Christopher Paul Hampton, Gerald Charles Waters, Jonathan D. Farrell, Loretta Mae Gastwirth, Robert R. Barravecchio, Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY, for Defendants.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

PlaintiffsUsvaldo Contrera, Francisco Lopez, Pedro Batista, Fabian Herrera, and Antonio Reyes—superintendents, handymen, and a porter at residential buildings in Upper Manhattan and the Bronx—filed this action against various individuals and entities that plaintiffs collectively refer to as "the E & M Enterprise" alleging that this enterprise employed plaintiffs.Plaintiffs make claims against the E & M Enterprise under the Fair Labor Standards Act,29 U.S.C. § 201 et seq.("FLSA"), and several provisions of the New York Labor Law,N.Y. Lab. Law § 190 et seq.("NYLL").Defendants now move to partially dismiss the amended complaint as to plaintiffs Contrera and Lopez.¹For the reasons set forth below, this motion should be denied.

I.BACKGROUND

In deciding the defendants' motion to dismiss, the Court assumes the allegations in the complaint are true and draws all reasonable inferences in plaintiffs' favor.See, e.g., Brown Media Corp. v. K & L Gates, LLP, 854 F.3d 150, 156–57(2d Cir.2017).

The amended complaint alleges that the defendants are business entities that owned, controlled, or managed more than 3,000 rental apartments in at least 262 buildings in New York City, as well as the individuals who controlled these entities (collectively, "the E & M Enterprise").See Amended Class Action Complaint, filed July 27, 2017 (Docket # 156)("Am. Compl."), ¶¶ 10, 65–281.²The individual defendants controlled all of the entity defendants from the E & M Enterprise's offices in Brooklyn and the Bronx.Seeid.¶¶ 10–18.To manage these buildings, the E & M Enterprise employed superintendents, porters, and handymen.Seeid.¶¶ 5–9, 11.Plaintiffs allege that the E & M Enterprise applied uniform business policies and practices to all of its superintendents, porters, and handymen working at the buildings it controlled.Seeid.¶ 19.These practices included encouraging superintendents, porters, and handymen to work more than 40 hours per week, but refusing to pay them overtime compensation for hours worked in excess of 40 per week, in violation of both the NYLL and the FLSA.Seeid.¶¶ 1, 19, 23–25, 406–12, 430–36.The E & M Enterprise also purportedly paid these employees at a rate less than the minimum wage permitted by the FLSA.Seeid.¶¶ 1, 23–24, 286, 402–05.

From approximately 2005 through July 1, 2015, Contrera was a superintendent at 655 West 160th Street in New York, New York.Id.¶ 36.The E & M Enterprise obtained ownership of this building on approximately November 14, 2013, thereby becoming Contrera's employer.Id.¶ 37.Contrera was required to reside at this building as a condition of his employment.Id.¶ 356.Contrera's duties as a superintendent included

among other tasks: maintaining the building's appearance, cleaning, mopping, minor repairs, plastering, minor plumbing, accepting oil deliveries, purchasing supplies, communicating with tenants regarding minor repairs, sweeping the sidewalk, recycling, garbage, cleaning the elevator hold, showing vacant apartments, cleaning and removing discarded items from newly-vacated apartments, installing kitchen appliances including stoves and refrigerators, maintaining bathroom and kitchen faucets, fitting locks, patching drywall, communicating with contractors, shoveling snow, and allowing emergency responders, including police, ambulance and fire personnel, into the building at all hours of the night and day, and generally serving as the first point of contact for resident service requests.

Id.¶ 350.

Lopez was a superintendent at 638 West 160th Street in New York, New York, from approximately March 1995 until around April 30, 2014.Seeid.¶ 45.The E & M Enterprise acquired ownership of this building on November 14, 2013, thereby becoming Lopez's employer.Id.¶ 46.Lopez was required to be on call at all times.Seeid.¶ 365.The Amended Complaint does not state whether Lopez resided at this building.Lopez's duties included

among other things, maintaining the appearance of the building, cleaning, mopping, minor repairs, plastering, minor plumbing, accepting oil deliveries, ordering supplies, communicating with tenants regarding minor repairs, sweeping the sidewalk, recycling, garbage, cleaning and removing discarded items from newly-vacated apartments, installing kitchen appliances including stoves and refrigerators, maintaining bathroom and kitchen faucets, communicating with contractors, allowing emergency responders, including police, ambulance and fire personnel, into the building, at all hours of the night and day, shoveling snow, and performing other tasks at all hours.

Id.¶ 364.

The amended complaint alleges that the E & M Enterprise designated in writing that both Lopez and Contrera worked as "hourly employees who were entitled to (but never actually paid) overtime compensation."Id.¶¶ 43, 52, 362, 378.These written designations indicated that Contrera's hourly rate was $10.00 per hour, with an overtime rate of $15.00 per hour, seeid.¶ 43, whereas Lopez's hourly rate was $9.17 per hour, with an overtime rate of $13.76 per hour, seeid.¶ 52; StaffPro Employee Enrollment Application, dated Nov. 18, 2013(annexed as Ex. C to Declaration of Scott Katz, dated Sept. 19, 2016(annexed as Ex. D. to Declaration of Larry R. Martinez, filed Sept. 23, 2016(Docket # 42) ) ), at *2.³Both Lopez and Contrera were required to remain "on-call" at all times, and worked in excess of 40 hours per week.SeeAm. Compl. ¶¶ 351–52, 365–66.Nevertheless, both Lopez and Contrera state that they were paid a fixed weekly amount without overtime compensation.Seeid.¶¶ 358–60, 370–71.

B.Procedural History

On May 23, 2016, plaintiffs filed the original complaint in this action.See Class Action Complaint, filed May 23, 2016(Docket # 1)("Compl.").This complaint sought relief for violations of the minimum wage and overtime provisions of the FLSA, seeid.¶¶ 310–20, but did not seek overtime wages under the NYLL.On September 23, 2016, defendants moved to dismiss the complaint, or in the alternative, for summary judgment.See Notice of Motion, filed Sept. 23, 2016(Docket # 40); Defendants' Memorandum of Law in Support of Their Motion to Dismiss or, in the Alternative, for Summary Judgment, filed Sept. 23, 2016(Docket # 43).

While that motion was pending, plaintiffs filed a motion for approval of this case as a collective action.See Notice of Motion, filed Mar. 7, 2017(Docket # 104); Memorandum of Law in Support of Plaintiffs' Motion to Conditionally CertifyFair Labor Standards Act Collective Action and Authorize that Notice Be Issued to All Persons Similarly Situated, filed Mar. 7, 2017(Docket # 111).Plaintiffs thereafter filed the amended complaint.See Am. Compl.The amended complaint included a claim for overtime wages under the NYLL on behalf of all plaintiffs.SeeAm. Compl. ¶¶ 430–36.After the amended complaint was filed, the Court deemed defendants' motion to dismiss or for summary judgment withdrawn, see Order, filed July 10, 2017(Docket # 130), and approved this case as a collective action, seeContrera v. Langer, 278 F.Supp.3d 702, 2017 WL 4444829(S.D.N.Y.Oct. 5, 2017).In the meantime, on September 8, 2017, defendants filed the instant partial motion to dismiss the amended complaint.See Def. Not.

Defendants seek to dismiss Contrera's and Lopez's claims for overtime compensation under the NYLL pursuant to the "Janitorial Exemption."SeeDef. Mem.at 6–10.Defendants also seek to have Lopez's claims under the FLSA dismissed for failure to comply with the statute of limitations.Seeid. at 11–14.We first discuss the law applicable to motions to dismiss and then address defendants' arguments.

II.LEGAL STANDARD GOVERNING A MOTION TO DISMISS UNDER12(b)(6)

A defendant may move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) where the plaintiff"fail[s] to state a claim upon which relief can be granted."To survive such a motion, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face."Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(internal quotation marks omitted)(quotingBell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007) ).As the Supreme Court noted in Iqbal,

[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Id.(citations omitted)."[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint is insufficient under Federal Rule of Civil Procedure 8(a)(2) because it has merely "alleged—but it has not shown—that the pleader is entitled to relief."Id. at 679, 129 S.Ct. 1937(alteration and internal quotation marks omitted)(quotingFed. R. Civ. P. 8(a)(2) ).An affirmative defense "may be raised in a pre-answer Rule 12(b)(6) motion‘if the defense appears on the face of the complaint.’ "Chen v. Major League Baseball Props., Inc., 798 F.3d 72, 81(2d Cir.2015)(quotingIowa Pub. Emps....