Copantitla v. Fiskardo Estiatorio Inc. D/B/A Thalassa Rest.

• Decision Date: 27 May 2011
• Docket Number: No. 09 Civ. 1608(RJH).,09 Civ. 1608(RJH).
• Citation: 788 F.Supp.2d 253
• Parties: Ricardo COPANTITLA, Diego Diaz De La Vega, Ignacio Garcia, Freddy Guachun, Julio Lantigua, Manuel Lizandro, Martin Lopez, Sebastian Lopez, Augustin Maldonado, Henry Matute, Joelito Melendez, Aussencio Ramirez, and Jose Luis Vargas, Plaintiffs,v.FISKARDO ESTIATORIO, INC. d/b/a Thalassa Restaurant, George Makris, Julia Makris, Steve Makris, and Fantis Foods, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

788 F.Supp.2d 253

Ricardo COPANTITLA, Diego Diaz De La Vega, Ignacio Garcia, Freddy Guachun, Julio Lantigua, Manuel Lizandro, Martin Lopez, Sebastian Lopez, Augustin Maldonado, Henry Matute, Joelito Melendez, Aussencio Ramirez, and Jose Luis Vargas, Plaintiffs,

v.FISKARDO ESTIATORIO, INC. d/b/a Thalassa Restaurant, George Makris, Julia Makris, Steve Makris, and Fantis Foods, Inc., Defendants.

No. 09 Civ. 1608(RJH).

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

May 27, 2011.

Alan Steven Goudiss, Daniel Craig Lewis, Diana Janae Goff, Jeena Dinesh Shah, Mary Lee Runkle, Shearman & Sterling LLP, Caroline Mae Pignatelli, Laura C. Rowntree, Meghan Sile Towers, Bernadette Karen Galiano, David Andrew Colodny, Marc David Ashley, New York, NY, for Plaintiffs.Elizabeth A. Alcorn, Thelen Reid Brown Raysman & Steiner, LLP, Alice Beth Stock, Lowenstein Sandler PC, New York, NY, David W. Field, Eric Jesse, Stephanie Lauren Aranyos, Lowenstein, Sandler P.C. Roseland, NJ, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge:

Plaintiffs Ricardo Copantitla, Diego Diaz de la Vega, Ignacio Garcia, Freddy Guachun, Julio Lantigua, Manuel Lizondro,¹ Martin Lopez (“M. Lopez”), Sebastian Lopez (“S. Lopez”), Augustin Maldonado, Henry Matute, Joelito Melendez, Aussencio Ramirez, and Jose Luis Vargas bring this action against defendants Fiskardo Estiatorio, Inc. d/b/a Thalassa Restaurant, George Makris, Julia Makris, Steve Makris, and Fantis Foods, Inc. Plaintiffs, who are current and former employees of Thalassa Restaurant, bring claims under the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), New York statutory and common law, and New York City law for alleged violations arising out of their employment. Now before the court are plaintiffs' motion for partial summary judgment and defendants' motion for partial summary judgment and to dismiss certain plaintiffs. For the reasons that follow, plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part and defendants' motion is also GRANTED in part and DENIED in part.

BACKGROUND

I. The PartiesA. Defendants

Fiskardo Estiatorio, Inc. (“Fiskardo”), a New York corporation, has operated and done business as Thalassa Restaurant (“Thalassa”) at all times relevant to this action. (Pls.' Rule 56.1 Stmt. ¶ 15.) Thalassa opened in November 2002 in the Tribeca neighborhood of New York City. ( Id.; Defs.' Rule 56.1 Stmt. ¶ 1.) The parties agree that Fiskardo is engaged in interstate commerce and is or was plaintiffs' employer within the meaning of the FLSA. (Defs.' Opp'n at 1; see also Pls.' Rule 56.1 Stmt. ¶ 15.)

Fantis Foods, Inc. (“Fantis Foods”), a New York corporation with its principal executive office in New Jersey, is a wholesale food importer and distributor that generally imports European foods. (Pls.' Rule 56.1 Stmt. ¶ 16; see also Defs.' Rule 56.1 Stmt. ¶¶ 29, 32.) Fantis Foods sells food and beverages to hundreds of customers, including small businesses, grocery stores, and restaurants. (Defs.' Rule 56.1 Stmt. ¶ 31.) Among Fantis Foods's customers is Thalassa, who represents less than 1% of Fantis Foods's gross annual sales. ( See id. ¶¶ 41, 44.) About 15–20% of Thalassa's food is purchased from Fantis Foods. ( Id. ¶ 41.)

Julia Makris (“J. Makris” or “Julia”) has been the sole owner, shareholder, and President of Fiskardo since its formation in 2001. (Pls.' Rule 56.1 Stmt. ¶ 17.) Julia Makris originally conceived of the idea to open Thalassa and envisioned the type of food it would serve. ( Id.)

Julia's husband, George Makris (“G. Makris” or “George”), has been President of Fantis Foods since 2002. (Defs.' Rule 56.1 Stmt. ¶ 17; G. Makris Decl. ¶ 3.) George Makris has no ownership interest in Fiskardo or Thalassa, and does not receive a paycheck from Fiskardo. (Defs.' Rule 56.1 Stmt. ¶ 18; Pls.' Rule 56.1 Stmt. ¶ 21.) George owns 60% of Fantis Foods. (Defs.' Rule 56.1 Stmt. ¶ 33.)

Julia became ill in February 2003, and her son Steve Makris (“S. Makris” or “Steve”), who lives with his family in an apartment above Thalassa, became her “eyes and ears” at the restaurant. (First Aranyos Decl. Ex. Y [Fiskardo 30(b)(6) ] at 22:6–20; see also J. Makris Decl. ¶¶ 2, 5; Pls.' Rule 56.1 Stmt. ¶ 12.) ² Steve Makris served in that role “from day one” at Thalassa on behalf of his mother. (Pls.' Rule 56.1 Stmt. ¶ 20.) More recently, Steve became the General Manager at Thalassa. (Ashley Decl. Ex. 20 [S. Makris] at 15:17–25.) Steve Makris represents to customers and to the public that he is the owner of Thalassa, and has been responsible for determinations regarding the management and supervisory structure of the Restaurant and the payment of its employees. (Pls.' Rule 56.1 Stmt. ¶ 20.) Steve has the authority to hire and fire Thalassa employees, to set work schedules for those employees, and has invoked his authority on occasion to fire employees. ( Id. ¶ 21.) Prior to Steve's tenure as General Manager of Thalassa, the previous general managers, the Special Events Coordinator, maitre d's, and chefs reported to Steve regarding decisions on employment, food, service, and customer satisfaction. ( Id.) In addition, Steve is the Chief Operating Officer of Fantis Foods and has held that position for “[a] few years.” (Ashley Decl. Ex. 20 [S. Makris] at 14:25–15:8.) Steve is also the Treasurer of Fantis Foods and owns 20% of that company. (Defs.' Rule 56.1 Stmt. ¶¶ 33, 34.)

B. Positions at Thalassa

To understand the plaintiffs' roles at Thalassa, it is helpful first to review the different positions that exist at the restaurant. Among the “front-of-the-house” positions that exist at Thalassa are General Manager, Maitre d', Sommelier, Captain, Runner, Expediter, Busboy, Bartender, Barback and Host/Hostess. (Defs.' Rule 56.1 Stmt. ¶ 74.) These positions had different responsibilities, some of which are outlined below.

Thalassa has always had a position titled “maitre d' ” since its founding in 2002. (Defs.' Rule 56.1 Stmt. ¶ 79.) In 2002, the maitre d' was Nickos Farmakas; after Farmakas's departure, Sait Dogan became the maitre d', followed by George Theodosio, Henry Matute, and Kemal Kurt. ( Id.) Kurt's tenure as maitre d' began sometime in the first half of 2008 and ended in May 2009. ( See Defs.' Rule 56.1 Stmt. ¶ 82; Aranyos Decl. Ex. JJ [Kurt] 51:10–23.) ³ The maitre d's responsibilities included seating and greeting customers, serving customers, and taking orders from customers. ( See First Aranyos Decl. Ex. EE [Ziotas] at 55:8–24.) With respect to customers' service needs, a maitre d' would do “[w]hatever needs to be done.” (First Aranyos Decl. Ex. CC [S. Makris] at 71:7–13.) The maitre d' also had certain supervisory and management functions, which could include supervising the front of the house staff, assigning work stations, creating the work schedule, supervising the training of new front-of-the-house employees, and interviewing prospective employees. ( See Goodman Decl. Ex. 4 [Dogan] at 49:4–50:23, Ex. 18 [Matute] at 16:10–17:2, Ex. 19 [Kurt] at 94:7–103:21, 122:23–123:7. But see Goodman Decl. Ex 18 [Matute] at 146:10–17 (noting that Sait Dogan was the only maitre d' who made hiring and firing decisions), Ex. 19 [Kurt] at 122:8–18 (noting that Kemal Kurt, as maitre d', did not set work schedules).)

Captains, also known as waiters, are assigned to tables in the dining room and responsible for the physical arrangement of the room and for taking food and wine orders. (Defs.' Rule 56.1 Stmt. ¶¶ 85, 86.)

Busboys are responsible for preparing the restaurant for service by, among other things, setting up the coffee stations and tables, plates, glasses, and silverware, polishing glasses, and clearing dirty dishes. ( Id. ¶ 87.) Busboys also worked on the floor folding napkins and clearing tables. ( Id. ¶ 88.) One busboy at a time would be assigned to the polishing station and would be responsible for polishing glass and silverware. (Goodman Decl. Ex. 16 [Diaz de la Vega] at 62:2–9.) That polishing station is located in Thalassa's basement and is surrounded by a thick curtain. (Goodman Decl. Ex. 23 ¶ 7, Ex. 25 ¶ 4.)

Runners were responsible for bringing food to the table. (Defs.' Rule 56.1 Stmt. ¶ 90.)

C. Plaintiffs

Plaintiffs are current and former employees of Thalassa. (Pls.' Rule 56.1 Stmt. ¶ 1.) Details regarding each plaintiff follow.

Ricardo Copantitla has been employed by Thalassa since September 23, 2003, under the name Eduardo Garcia. (Pls.' Rule 56.1 Stmt. ¶ 2.) ⁴

Diego Diaz de la Vega was employed as a busboy by Thalassa from at least November 7, 2007. ( Id. ¶ 3.) His last day at Thalassa was April 25, 2008. (Defs.' Rule 56.1 Stmt. ¶ 122.) As a busboy, Diaz de la Vega cleared and re-set tables with linens, dishes and silverware, and prepared olives, oils, bread, and coffee for service. (Pls.' Rule 56.1 Stmt. ¶ 3.) Near the end of his employment, Diaz de la Vega worked at the polishing station. ( Id.)

Ignacio Garcia was employed from approximately May 30, 2008 to September 21, 2008 by Thalassa as a busboy working in Thalassa's main dining room. ( Id. ¶ 4; Defs.' Rule 56.1 Stmt. ¶ 124.)

Freddy Guachun was employed by Thalassa from approximately 2003 through December 9, 2008. (Pls.' Rule 56.1 Stmt. ¶ 5.) He worked as a busboy for about three years, as a runner for approximately one year, and occasionally served as an expediter in 2004. ( Id.; Ashley Decl. Ex. 6 [Guachun] at 31:4–9.) When Thalassa hosted banquets, Guachun also worked as a waiter, bartender, busboy, or runner depending on Thalassa's needs. (Pls.' Rule 56.1 Stmt. ¶ 5.)

Julio Lantigua was employed from approximately July 12, 2007 to July 18, 2008 as a captain at Thalassa. ( Id. ¶ 6; Defs.' Rule 56.1 Stmt. ¶¶ 130, 131.)

Manuel Lizondro was employed by Thalassa from approximately January 5, 2007 through June 30, 2008, and his responsibilities primarily involved polishing. ( See Pls.' Rule 56.1 Stmt. ¶ 7; see also Defs.' Rule 56.1 Stmt. ¶¶ 141, 143.)

Martin Lopez...