Contrera v. Langer

• Decision Date: 05 October 2017
• Docket Number: 16 Civ. 3851 (LTS) (GWG)
• Citation: 278 F.Supp.3d 702
• Parties: Usvaldo CONTRERA, et al., Plaintiffs, v. Irving LANGER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

278 F.Supp.3d 702

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 October 5, 2017

Christopher Robert Travis, New York, NY, Meredith Reade Miller, Miller Law, PLLC, New York, NY, Marc Andrew Rapaport, Rapaport Law Firm, PLLC, 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.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiffs Usvaldo 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 their purported employers: individuals, investment entities, management entities, and title-holding entities that plaintiffs collectively refer to as "the E & M Enterprise." Plaintiffs move to have this case conditionally approved as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et.seq. ("FLSA"), with notice being sent to "all of Defendants' current and former superintendents, porters, and handymen."¹ For the following reasons, plaintiffs' motion is granted in part and denied in part.

I. BACKGROUND

A. Allegations in the Amended Complaint Regarding Wage and Hour Violations

The amended complaint alleges that plaintiffs were not paid minimum wage and overtime wage rates required by the FLSA. See Amended Class Action Complaint, filed July 11, 2017 (Docket # 131) ("Am. Compl."), at ¶¶ 402–412. More specifically, plaintiffs claim that superintendents employed by defendants had "to work an average of eighty (80) hours per week and to be on-call at all hours of the day and night," but that defendants "failed to pay Superintendents for any hours that they worked in excess of forty each week." Id. ¶¶ 5, 24. Plaintiffs claim that porters and handymen employed by defendants were also not paid for any hours they worked beyond 40, id. ¶ 25, alleging that defendants had a pattern of not paying for handymen's first and last half-hour of work, id. ¶ 7, and that porters worked an average of 70 hours per week without overtime compensation, id. ¶ 8.

B. Allegations in the Amended Complaint Regarding the Identity of Plaintiffs' Employer

Plaintiffs' amended complaint names four individuals and over 160 corporate entities as plaintiffs' employers. The complaint alleges:

Defendants were and still are a centrally managed real estate enterprise [a.k.a. the "E & M Enterprise"] that was founded by Defendant Irving Langer ("Langer") in or about 1979, and that, upon information and belief, owned, controlled, and managed more than 3,000 rental apartment units located in at least 262 apartment buildings situated primarily in lower-income neighborhoods in Bronx, Brooklyn, Queens, and Upper Manhattan.... During the time period relevant ... the E & M Enterprise was controlled by individual defendants Langer, Leibel Lederman ("Lederman"), Aryeh Z. Ginzberg ("Ginzberg") and Meyer Brecher ("Brecher") ....

Id. ¶¶ 10, 12. The complaint alleges that the "E & M Enterprise" had its principal place of business at 1465A Flatbush Avenue in Brooklyn, and maintained an office at 975 Walton Avenue in the Bronx. Id. ¶ 13. It alleges that Langer, Lederman, and Ginzberg owned and managed the Enterprise's apartment buildings through investment entities such as "Manhattanville Holdings LLC" and "SG2–E & M"; management companies, including E & M Bronx Associates LLC, E & M Associates LLC, Galil Management LLC, and Galil Realty LLC; and title-holding entities, usually named after the buildings to which they held the title (e.g."638 West 160 Holdings LLC"). See id. ¶¶ 16, 97–110.

The amended complaint alleges that Langer, Lederman, Ginzberg, and Brecher "exercised sufficient control over the E & M Enterprise's operations to be considered Plaintiffs' employer[s] under the FLSA ...." Id. ¶¶ 73, 83, 92, 96. It further alleges that the corporate entities named as defendants are "vertically integrated" and "function[ ] as a single enterprise with unified management and personnel policies." Id. ¶ 98. It claims that all of the defendants, "often acting through E & M Bronx and/or Galil, had the power to hire and fire [employees], supervised and controlled [employees'] work schedules and conditions of employment, determined the rate and method of paying [employees] and maintained [employees'] employment records." Id. ¶ 305.

C. Facts from Plaintiffs' Declarations

1. Superintendent Plaintiffs

Contrera, Lopez, and Batista all worked as superintendents at buildings on the 600 block of West 160th Street in Manhattan: Contrera at 655 West 160th Street, and Lopez and Batista at 638 West 160th Street. See Contrera Decl. ¶ 2; Lopez Decl. ¶ 2; Batista Decl. ¶ 5. Contrera worked in this role from 2005 through July 1, 2015, Contrera Decl. ¶ 2; Lopez from March 1995 through April 2014, Lopez Decl. ¶ 2; and Batista from January 2015 through March 2016, Batista Decl. ¶ 5. Lopez and Batista say their supervisor was Ephraim Weiss, or "Effi," who described 638 West 160th Street's owners as "E & M" when the building was sold to Weiss's employers in 2013. Lopez Decl. ¶¶ 6, 8–9; Batista Decl. ¶ 24. Their paychecks were issued by "StaffPro Inc." and "StaffE & M." Lopez Decl. ¶ 7; Batista Decl. ¶ 25.² Contrera and Lopez's employment identification cards were marked "E & M Associates." Usvaldo Contrera ID Card (attached as Ex. A to Contrera Decl.); Lopez Decl. ¶ 9; Francisco Lopez ID Card (attached as Ex. B to Lopez Decl.). A termination letter sent to Contrera on July 1, 2015, was on "Galil Management" letterhead, but sent and signed by "Ephraim Weiss, Property Manager, E & M Associates, LLC." Letter from Ephraim Weiss, dated July 1, 2015 (attached as Ex. B to Contrera Decl.) ("Weiss Letter").

Contrera was paid $400 per week, Lopez $275 per week, and Batista $600 per week while working as superintendents, regardless of the number of hours they actually worked. Contrera Decl. ¶ 9; Lopez Decl. ¶¶ 3, 17; Batista Decl. ¶¶ 23, 31. They all claim that they worked over 40 hours per week, were required to be on-call at all times in case of emergencies or tenant requests, and could not take days off.³ Contrera Decl. ¶¶ 3–6, 8; Lopez Decl. ¶¶ 3, 15; Batista Decl. ¶¶ 26–27. Their duties included removing garbage and recycling from the buildings, cleaning common areas, repairing fixtures and lights and patching drywall, addressing leaks and other plumbing issues, killing rats and mice, monitoring and maintaining the boiler, and shoveling snow. Contrera Decl. ¶¶ 5, 7; Lopez Decl. ¶ 14; Batista Decl. ¶ 26. They were never given an opportunity to report the number of hours they worked, and were not paid overtime. See Contrera Decl. ¶ 9; Lopez Decl. ¶¶ 7, 17; Batista Decl. ¶¶ 10, 31. They were also required to pay for and provide their own tools, such as paint compressors, nail guns, tile cutters, plumbing snakes, drills, and measuring tape. Contrera Decl. ¶ 12; Lopez Decl. ¶¶ 4, 7; Batista Decl. ¶ 32.

Contrera, Lopez, and Batista were supervised by E & M managers based at an office at 975 Walton Avenue, Bronx, New York, where they picked up paychecks, attended meetings, and met other superintendents from buildings in the Bronx and Upper Manhattan. See Contrera Decl. ¶¶ 10–11; Lopez Decl. ¶¶ 18–22; Batista Decl. ¶¶ 28–30. Lopez and Batista recall specific meetings at this office led by "Effi" where they discussed superintendent responsibilities and work duties such as instructions to keep each building free of litter and garbage, to monitor each building's boiler, and to be on-call for tenant requests. Lopez Decl. ¶¶ 18–19; Batista Decl. ¶¶ 28–30. They all estimate that 30–40 superintendents reported to this office, and attest that conversations with these other superintendents showed that they all were subject to similar policies regarding hours worked, rate of pay, and lack of overtime pay. Contrera Decl. ¶¶ 10–11; Lopez Decl. ¶¶ 18, 20–22; Batista Decl. ¶¶ 28–30.

2. Porter Plaintiff

Herrera began working as a porter at 655 West 160th Street, where Contrera was the superintendent, in 2013. Herrera Decl. ¶ 2. He occasionally performed porter work at 638 West 160th Street and, at the request of "Effi (who supervised superintendents and porters)," he served as a temporary superintendent at 638 West 160th Street for two weeks in 2016. Id. ¶¶ 3–4. His pay remained the same regardless of where he worked or what his title was. See id. ¶ 4. Herrera was paid $305.17 per week in 2014 and $313.76 per week in 2015. Id. ¶¶ 6–7. He worked about 70 hours per week—from approximately 7:00 a.m. to 8:00 p.m. Id. ¶ 9. He assisted Contrera with various tasks, including "taking out garbage, removing mattresses and other large items, cleaning the sidewalk, killing rats, helping with apartment repairs, plastering, painting, refinishing floors, shoveling snow, mopping floors, and cleaning windows." Id. ¶¶ 2, 8. He was never told that he was entitled to receive overtime pay, was never asked to report to anyone the number of hours he worked, and received the same flat sum each week, "regardless of the number of hours that [he] worked." Id. ¶ 5.

3. Handymen Plaintiffs

Batista and Reyes were employed as handymen by enterprises known as "E & M" and "Galil" and performed repairs and renovations at apartment buildings in Upper Manhattan and the Bronx. Batista Decl. ¶¶ 2–3; Reyes Decl. ¶¶ 2, 4. Batista worked as a handyman from April 2014 to approximately January 2015, Batista Decl. ¶¶ 3, 5, and Reyes worked as a handyman from 2012 until March 2016, Reyes Decl. ¶ 2. Each was hired by a manager named Melendez Medina, who supervised a team of handymen who performed repairs and renovations at "E & M buildings." Batista Decl ¶¶ 3, 13; Reyes Decl ¶¶ 3, 11. Batista and Reyes state that...