ALBERTO OREA GARCIA GALO JHOVANY MUNOZ NIETO QUINTIL GARCIA RAMIREZ v. NEW FORCE CONSTRUCTION CORP CONSTRUCTORS TRADES AND SKILLS CORP NORBERT WLODKOWSKI (2025)

REPORT AND RECOMMENDATION

Plaintiffs Alberto Orea Garcia (“Garcia”), Galo Jhovany Munoz Nieto (“Nieto”), and Quintil Garcia Ramirez (“Ramirez”), individually and on behalf of all others similarly situated (collectively, “Plaintiffs”), bring this action against Defendants New Force Construction Corp. (“New Force”), Constructors Trades and Skills Corp. (“Constructors”), and Norbert Wlodkowski (“Wlodkowski”) (collectively, “Defendants”), in connection with alleged violations of federal and state wage and hour laws arising out of Plaintiffs’ employment with Defendants. See Dkt. No. 1.

Currently pending before this Court, on a referral from the Honorable Eric N. Vitaliano, United States District Judge, is Defendants’ motion for summary judgment. See Dkt. No. 48, Text Order dated February 10, 2025. For the reasons set forth below, the undersigned respectfully recommends that the Court grant in part and deny in part Defendants’ motion for summary judgment.

I. Background

A. Factual Background

The following facts, taken from the parties’ Local Civil Rule 56.1 (“Rule 56.1”) statements, the materials submitted in connection with the motion (Dkt. Nos. 48-1 – 48-10), and the complaint (Dkt. No. 1) (“Complaint”), are undisputed unless otherwise noted.¹

New Force is a New York domestic corporation that has its principal place of business at 64-00 Metropolitan Ave., Middle Village, New York 11379. Dkt. No. 48-3 at 2.² Constructors is a New York domestic corporation that has its principal place of business at 64-00 Metropolitan Ave., Middle Village, New York 11379. Id. Wlodkowski is a 50 percent partner of New Force and a Project Manager at Constructors. Dkt. No. 48-6 at 1. New Force and Constructors perform restoration work on the exterior of buildings, described as seasonal and weather-dependent work. Dkt. No. 48-9 at 4.

Garcia worked for Defendants as a scaffolder from March 2019 until February 2023. Dkt. No. 48-6 at 2. Nieto worked for Defendants as a scaffolder from March 2021 until February 2023. Id. Ramirez worked as a scaffolder for Defendants from March 2021 until June 2024. Id.

The remaining facts are sharply disputed by the parties.

1. Plaintiffs’ Allegations

All three Plaintiffs claim in their affidavits that when they were hired by Defendants, they did not receive any documents relating to their rates of pay. See Dkt. No. 48-7 at 66, 122, 182. They further state that they did not receive pay stubs indicating their rates of pay and hours worked for the payment period. Id. at 68, 123, 183. Plaintiffs allege that during their employment with Defendants, each of them “regularly worked a schedule of shifts beginning at approximately 8:00 a.m. each workday and regularly ending at approximately 4:30 p.m. five (5) days per week.” Dkt. No. 1 ¶¶ 27, 35, 43. Plaintiffs also allege that they were not paid until their fourth week of work and that each of their weekly checks thereafter were for the work they had done three weeks prior, that Garcia was not paid for his final six weeks of work, and that Nieto was not paid for his final five weeks of work.³ See Dkt. Nos. 48-7 at 67, 68, 123, 183 184.

Garcia worked primarily as a scaffolder, but claims that he also performed “demolition work, brick work, roof work, and cement mixing as well as other tasks.” Id. at 66. Garcia claims that he often worked for Defendants regardless of the weather conditions “because [he was] able to work under the scaffold.” Id. at 67. Garcia testified in his deposition that he typically worked “five or six” days per week from “8:00 to 4:30, sometimes[ ] until 5:00” if there was additional work to complete, id. at 33-34, which he stated occurred “three, four, five times,” although he “[didn't] remember” any more specifics. Id. at 36. Garcia also testified that he would have a thirty-minute lunch break as well as a ten or fifteen-minute break in the morning sometimes. Id. at 32-33. Garcia testified that during the winter they would work “sometimes, three or four days out of the week.” Id. at 37. In his affidavit filed in opposition to Defendants’ motion for summary judgment, Garcia states that he would generally work six days out of the week two times a month, and that he was also required to stay until 5:00 p.m. twice a week. Id. at 67. Garcia claims that he was therefore “required to work approximately 42.5 to 43.5 hours or more per week for approximately two weeks out of the month and approximately 51 hours or more per week for approximately two weeks out of the month.” Dkt. No. 48-8 at 11. Garcia states that he was paid his typical hourly wage, even when he worked more than 40 hours per week. Dkt. No. 48-7 at 50. Garcia testified that he remembered one day that he was never paid for, and that in 2023 he went six or seven weeks without receiving a check from New Force. Id. at 40, 43, 54.

Ramirez worked primarily as a scaffolder, but he claims that he also did “demolition work and cement mixing, as well as other tasks.” Id. at 122. Ramirez testified that he typically worked between 8:00 a.m. and 4:30 p.m. five days per week, with a ten-minute break in the morning and thirty-minute lunch break. Id. at 100-01, 123. His affidavit notes that he was “told to work through lunch about two or three times a week when deliveries came in,” and that he was required to work six days of the week approximately “one time per year” during his employment. Id. at 123. When asked about the seasonal nature of the job, Ramirez also testified that they might not work five days a week when there was rain, snow, freezing temperatures, or wind. Id. at 102. Ramirez also testified that when he was ultimately fired, he was given a check with “the four weeks of pay that [Defendants] owed [him].” Id. at 106. Plaintiffs claim that Ramirez was “required to work approximately 42.5 or more hours per week during his employment with Defendants and was compensated at [his] flat hourly rate for all hours worked[,] including hours worked in excess of forty hours.” Dkt. No. 48-8 at 12.

Nieto worked for Defendants primarily as a scaffolder, but he also did “demolition work, brick work, roof work, and cement mixing as well as other tasks.” Dkt. No. 48-7 at 182. Nieto testified that he typically worked from 8:00 a.m. to 4:30 p.m. and sometimes later, five days per week. Id. at 159-160. He also testified that he had a fifteen-minute break in addition to a twenty to thirty-minute lunch break, depending on whether a delivery arrived. Id. at 160. In his affidavit filed in opposition to Defendants’ motion for summary judgment, Nieto stated that he worked from 8:00 a.m. to 5:00 p.m. approximately twice a week and worked one Saturday per month. Id. at 183. Plaintiffs also allege that Nieto was required to work “42.5 to 51 or more hours per week during his employment with Defendants.” Dkt. No. 48-8 at 12. Nieto's affidavit stated that he was paid a flat hourly rate, even when he worked more than forty hours per week. Dkt. No. 48-7 at 182. Nieto also testified that he did not receive all anticipated paychecks and would “randomly” receive checks that did not include all hours worked. Id. at 164.

Each Plaintiff claims that his daily thirty-minute lunch breaks were sometimes interrupted. Dkt. No. 48-7 at 49, 13-14. Garcia stated that he received a ten- to fifteen-minute coffee break as well as a thirty-minute lunch break each day. Id. Garcia testified that he would occasionally have to work through lunch if a delivery came in, sometimes two or three times per week. Dkt. No. 48-7 at 49, 50. Ramirez stated in his affidavit that he was given a thirty-minute lunch break and ten-minute coffee break each day, but that his lunch break was interrupted multiple times per week by Defendants to help with deliveries. Id. at 123. Nieto also stated in his affidavit that his coffee and lunch breaks were interrupted multiple times each week. Id. at 183. Consequently, Plaintiffs argue that they worked more than forty hours per week and were not properly compensated. Dkt. No. 48-8 at 12-14.

All three Plaintiffs allege in their affidavits that they received the paychecks covering solely their first week of hours four weeks after beginning their employment, and that subsequent checks were received three weeks after the hours in question were worked. Dkt. No. 48-7 at 67, 123, 183.

When asked in their depositions, none of the Plaintiffs claimed they had diaries, journals, logs, or notes to support their allegations, nor did they identify individuals with information to support their claims. Id. at 47-48, 109, 169-70.

2. Defendants’ Allegations

Defendants aver that Plaintiffs’ affidavits submitted in opposition to summary judgment “contain new facts not previously pled upon or disclosed in Plaintiffs’ Complaint [ ] and/or were either not stated or are contradicted by statements made by Plaintiffs previously made during their depositions.” Dkt. No. 48-9 at 6.

Defendants assert that Plaintiffs worked five days per week from 8:00 a.m. to 4:30 p.m. at most, including a thirty-minute lunch break and a ten-minute morning coffee break. Dkt. No. 48-4 at 10-11. Defendants claim that Plaintiffs may have worked from 9:00 a.m. to 5:00 p.m. depending on the rules of the building on which they were working but would receive the same daily breaks. Dkt. No. 48-3 at 156-157. According to Defendants, the 2.5 hours that Plaintiffs allege as weekly overtime work were “in reality, daily 30-minute lunch breaks.” Dkt. No. 48-1 at 3; 48-4 at 11. Due to the seasonal nature of scaffolding work, Defendants also claim that Plaintiffs were frequently unable to work a full five-day week due to weather conditions, thus, they did not work over 40 hours per week. Dkt. No. 48-9 at 4, 10-12.

Defendants also assert that Plaintiffs’ affidavits all state that after receiving their first check, they “began receiving checks each week.” Id. at 13-15. Indeed, Wlodkowski testified that it was standard practice for Plaintiffs’ employees to be paid weekly. Dkt. No. 48-3 at 130, 139. Defendants also argue that Plaintiffs have failed to demonstrate injury in fact resulting from any violation the weekly pay requirements of N.Y. Lab. Law § 191, and thus lack standing. See Dkt. No. 48-4 at 17-18. Wlodkowski further contends that Plaintiffs were “paid in full for all hours worked during their employment and all checks [ ] cleared Defendants’ bank.” Dkt. No. 48-1 at 4.

Defendants argue that they complied with all wage statement requirements under NYLL. Id. In his affidavit, Wlodkowski stated that minimum and overtime wage requirements were posted at the offices of both New Force and Constructors, and that they “provided Plaintiffs with a written notice, in English and Spanish of his applicable regular rate of pay, regular day pay, and all such information as required by NYLL § 195(1)).” Id.

Ultimately, Defendants claim that Plaintiffs worked a traditional schedule from 8:00 a.m. to 4:30 p.m. five days a week, with a thirty-minute lunch break and a ten-minute coffee break. They maintain that the time set aside for lunch breaks is not compensable and does not count as “hours worked.” Id. at 3.

B. Procedural History

Plaintiffs filed this action on March 27, 2023. See Dkt. No. 1. In the Complaint, Plaintiffs raise seven causes of action. Id. In their first and second causes of action, Plaintiffs claim that Defendants failed to pay Plaintiffs overtime wages for hours worked in excess of 40 hours per week, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New York Labor Law (“NYLL”) §§ 650 et seq. Dkt. No. 1 ¶¶ 66-76. Plaintiffs claim in their third and fourth causes of action that Defendants failed to pay them all wages for all hours worked in violation of the FLSA and NYLL. Id. ¶¶ 77-84. Plaintiffs’ fifth cause of action against Defendants is for violation of frequency of pay laws under NYLL § 191. Id. ¶¶ 85-88. Plaintiffs’ sixth and seventh causes of action allege violations of the Wage Statement Requirement under NYLL § 195(3) and the Notice and Recordkeeping requirement of NYLL § 195(1), respectively. Id. ¶¶ 89-94.

The parties completed discovery on September 30, 2024. See Dkt. No. 39; September 30, 2024 Text Order. Defendants’ present motion for summary judgment was fully briefed on February 7, 2025. See Dkt. No. 48.

II. Legal Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Frost v. N.Y.C. Police Dep't, 980 F.3d 231, 242 (2d Cir. 2020) (citation omitted). “There is ‘no genuine dispute as to any material fact’ where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material).” Lange v. Dep't of Educ. of City of New York, No. 17-CV-3443, 2018 WL 4636986, at *2 (S.D.N.Y. Sept. 26, 2018) (Sullivan, J.) (citations omitted). The movant bears the burden of “demonstrat[ing] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In determining whether a fact is genuinely disputed, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996); Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995) (explaining that a court's responsibility in assessing the merits of a summary judgment motion is not to try issues of fact, but merely to “determine whether there are issues of fact to be tried.” (quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)).

Nevertheless, to show a genuine dispute, the nonmoving party must provide “hard evidence,” D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998), “from which a reasonable inference in [its] favor may be drawn,” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). “Conclusory allegations, conjecture, and speculation,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), or the existence of a mere “scintilla of evidence in support of the [nonmoving party's] position,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986), are insufficient to create a genuinely disputed fact.

“A nonmoving party can survive summary judgment only if there is sufficient evidence to permit a rational trier of fact to find in that party's favor.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Liberty Lobby, Inc., 477 U.S. at 251. “In other words, ‘[t]he litigant opposing summary judgment ․ may not rest upon mere conclusory allegations or denials as a vehicle for obtaining a trial.’ ” Jimenez v. City of New York, No. 21-CV-6133 (RPK) (JRC), 2024 WL 198319, at *4 (E.D.N.Y. Jan. 18, 2024) (quoting Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980)).

III. Discussion

A. The Burden of Proof under the FLSA and NYLL

As an initial matter, Defendants have raised the question of whether Plaintiffs’ claims are sufficiently supported by “documentary evidence” such as “diaries, journals, or notes” to establish damages and survive summary judgment in this case. See Dkt. No. 48-2 ¶¶ 22, 25-27.

Under the FLSA, employers are required to “make, keep, and preserve” comprehensive and accurate records of employee wages, hours worked, and “other conditions and practices of employment.” 29 U.S.C. § 211(c). So that employers will not be rewarded for their violation of this statutory duty, and in consideration of the policy goals and “remedial nature of the statute,” the Supreme Court has established a burden-shifting framework which is used in evaluating FLSA claims. Perry v. City of New York, 78 F.4th 502, 528 (2d Cir. 2023) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-88 (1946)). Under this framework, employees bringing unpaid overtime or minimum wage claims have the initial burden of submitting “sufficient evidence from which violations of the [FLSA] and the amount of an award may be reasonably inferred.” Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997) (citations omitted). This burden is “not high,” and “[i]t is well settled among the district courts of [the Second] Circuit ․ that it is possible for a plaintiff to meet this burden through estimates based on his own recollection.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011) (collecting cases).

“If an employee makes this showing, ‘[t]he burden then shifts to the employer to come forward [i] with evidence of the precise amount of work performed or [ii] with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.’ ” Chichinadze v. BG Bar Inc., 517 F. Supp. 3d 240, 252 (S.D.N.Y. 2021) (quoting Anderson, 328 U.S. at 687-88) (reviewing FLSA and NYLL standards of proof in the Second Circuit). “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be only approximate.” Id. (quoting Anderson, 328 U.S. at 688).

Cases based on NYLL claims follow the same general burden-shifting framework. See id. at 253 (citing Gonzalez v. Masters Health Food Serv. Inc., No. 14-CV-7603 (VEC), 2017 WL 3835960, at *16 (S.D.N.Y. July 27, 2017)); Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 497-98 (S.D.N.Y. 2017) (reviewing FLSA and NYLL approaches to incomplete or missing employer records), aff'd, 752 F. App'x 33 (2d Cir. 2018) (summary order). The NYLL differs from the FLSA, however, in requiring of employers an even stricter standard of proof during the second step: “by its terms, the NYLL—unlike the FLSA—does not permit an employer to discharge [its evidentiary] burden by undermining the reasonableness of an employee's evidence that he was underpaid.” See Gamero at 498. Employers who fail to “keep adequate records or provide statements of wages to employees as required [by the statute] ․ shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements.’ ” Chichinadze, 517 F. Supp. 3d at 253 (quoting N.Y. Lab. Law § 196-a(a)).

Here, the extent of Defendants’ employee and payroll records are unclear, as neither party has utilized any such records to support or oppose Defendants’ Motion for Summary Judgment. See, e.g., Dkt. Nos. 48, 48-1 – 48-10. It appears that during Ramirez's deposition, he stated that partial records had once been in his possession, and such records were requested by Defendants’ counsel, but were not recovered. See Dkt. No. 48-7 at 276-77 (index of exhibits and requests). Moreover, records regarding rates of pay for the Plaintiffs were discussed during Wlodkowski's deposition, but do not appear in the record.⁴ See, e.g., Dkt. Nos. 48-3 at 43. The record is therefore ambiguous as to why neither party has used documentary evidence to support their respective contentions.

Given Plaintiffs’ continued assertion that Defendants failed to maintain all statutorily required records (see, e.g., Dkt. No. 48-8 at 14-16), Defendants’ failure to present their records to support their motion for summary judgment—which could “easily discharge [Defendants’] burden” if they existed (Anderson, 328 U.S. at 687; see Dkt. Nos. 48, 48-1 – 48-10)—and the Court's obligation to “draw all reasonable inferences in favor” of the party opposing summary judgment” (Weyant, 101 F.3d at 854), the Court must infer that Defendants have failed to use any records to support their case because they are not sufficient to comply with their statutory requirements.

As a result, the burden-shifting provisions of Anderson apply, and a lack of evidence beyond Plaintiffs’ own testimony is alone insufficient to rule in favor of Defendants on summary judgment. See Kuebel, 643 F.3d at 362. To hold otherwise would run the risk of rewarding Defendants for a failure to maintain statutorily sufficient records. See Anderson, 328 U.S. at 686-88. Nonetheless, Plaintiffs’ allegations must still be sufficiently grounded and specific to provide some method for a factfinder to reasonably estimate the damages they are due, and a bare assertion that violations occurred is not enough to survive summary judgment. See Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2d Cir. 2013) (requiring plaintiffs assert specific, “sufficiently developed factual allegations” to permit a reasonable inference of damages); Anderson, 328 U.S. at 687 (requiring allegations be sufficiently detailed to draw a “just and reasonable inference” about damages).

B. Potential Factual Contradictions in Plaintiffs’ Claims

1. “Sham Affidavit” Doctrine

Defendants contend that some of Plaintiffs’ assertions in the Complaint, in their depositions, and in their affidavits contradict each other and should thus be disregarded when evaluating this motion. See, e.g., Dkt. No. 48-10 at 8-14.

“[I]t is well established [in the Second Circuit] that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.” See Kennedy v. City of N.Y., 570 F. App'x 83, 84 (2d Cir. 2014) (internal quotation marks omitted) (quoting Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996)); Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 378 (E.D.N.Y. 2012) (“The rule in the Second Circuit is well-settled that ‘a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.’ ”) (quoting Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991)); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997); Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995); Hayes, 84 F.3d at 619 (“It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition should be disregarded on a motion for summary judgment.”). “This rule has traditionally been applied in the context of the non-movant's opposition to a motion for summary judgment.” Better Env't, Inc. v. ITT Hartford Ins. Grp., 96 F. Supp. 2d 162, 168 (N.D.N.Y. 2000) (extending the rule, however, to “a material issue of fact in the movant's own prior testimony [which] contradicts the complaint and supporting affidavit”).

Determining whether an “addition or omission” rises to the level of a true “contradiction,” however, is complicated in light of the Court's duty to make all reasonable inferences in favor of the non-movant. See Rule v. Brine, 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). Indeed,

[a]lthough a party does not show a triable issue of fact merely by submitting an affidavit that disputes his own prior sworn testimony, a material issue of fact may be revealed by his subsequent sworn testimony that amplifies or explains, but does not merely contradict, his prior testimony, especially where the party was not asked sufficiently precise questions to elicit the amplification or explanation.

Id.; see Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) (“[T]he principle does not apply if the deposition and the later sworn statement are not actually contradictory.”) (citing White v. ABCO Engineering, Corp., 221 F.3d 293, 304 (2d Cir. 2000)). “If there is a plausible explanation for discrepancies in a party's testimony, the court considering a summary judgment motion should not disregard the later testimony because of an earlier account that was ambiguous, confusing, or simply incomplete.” Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998), amended, 169 F.3d 782; Palazzo ex rel. Delmage, 232 F.3d at 43 (holding sham affidavit doctrine “does not apply where the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition”); cf. Khalifa v. City of New York, No. 15-CV-6611 (FB) (ST), 2019 WL 1492905, at *1 (E.D.N.Y. Apr. 4, 2019) (“To the extent that there is any ambiguity in this testimony, the Court must resolve it in the plaintiffs’ favor because they are the non-moving parties.”).

That said, a prior affirmative claim need not be directly contradicted to merit exclusion under the sham affidavit doctrine, which calls for a holistic analysis of all the circumstances surrounding the purported contradiction. For instance, a party's failure to mention “critical, obviously material facts” at a deposition—especially after extended questioning on the topic and without his attorney attempting to prompt such testimony by deposing her further—is generally considered suggestive of a sham issue of fact. See Golden v. Merrill Lynch & Co., No. 06-CV-2970 (RWS), 2007 WL 4299443, at *9 (S.D.N.Y. Dec. 6, 2007) (“[C]ourts in the Second Circuit are particularly reluctant to credit affidavit testimony that alleges critical, obviously material facts that were not mentioned at deposition, noting that such circumstances strongly suggest a sham affidavit.”); Butler v. Raytel Corp., 150 F. App'x 44, 46 (2d Cir. 2005) (suggesting sham affidavit rule would exclude claim when plaintiff had been asked “several questions” about the topic and his attorney declined to depose him further on it); Perma Rsch. & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (“During four days of deposition-taking [the plaintiff] was repeatedly asked to specify the basis of the fraud he alleged, and we think it is significant that he made no reference to the alleged conversation․ We think it is also significant that [his] lawyers failed to question [him] about the alleged conversation.”); Bunting v. Nagy, 452 F. Supp. 2d 447, 460 (S.D.N.Y. 2006) (“[I]t is notable that plaintiff's complaint and subsequent deposition contain no mention of this purportedly highly material and egregious statement. Indeed[,] the absence of any allegation to this effect prior to plaintiff's opposition to summary judgment makes it difficult to credit.”) (citing Phipps v. Comprehensive Cmty. Dev. Corp., No. 00-CV-6063 (RJH), 2005 WL 287413, at *14 (S.D.N.Y. Feb. 4, 2005)). Also highly suspect is affidavit testimony to a material fact which the same party purported not to remember during deposition. See Fed. Deposit Ins. Corp. v. Murex LLC, 500 F. Supp. 3d 76, 94 (S.D.N.Y. 2020) (“Relatedly, a party cannot create a triable issue of fact, and thus avoid summary judgment, by renouncing deposition testimony to the effect that he could not remember a particular fact which he now purports to remember.”); Kennedy, 570 F. App'x at 84-85 (considering affidavit a “sham” based on plaintiff's testimony that he was “unable to remember” material facts when specifically questioned about them at deposition); Raskin, 125 F.3d at 63 (invoking the sham affidavit rule in reference to declarations about the content of a meeting which the plaintiff “could not remember” at deposition); cf. Butler, 150 F. App'x at 46 (considering a response of “not to my knowledge” to be an affirmative statement directly contradicted by later testimony).

2. Contradictions Within Prior Testimony

The general sham affidavit principle may also be extended to testimony beyond affidavits opposing summary judgment, “in the rare circumstance where the plaintiff relies almost exclusively on his own testimony” and that testimony is so “contradictory and incomplete” that it is impossible to evaluate the summary judgment motion without considering the plaintiff's credibility in asserting a particular factual issue. See Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (citing Liberty Lobby, Inc., 477 U.S. at 252); Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (affirming summary judgment against plaintiff when case was based entirely on inconsistent and contradictory testimony, while defendants presented contemporaneous records); Aziz Zarif Shabazz v. Pico, 995 F. Supp. 460, 468-71 (S.D.N.Y. 1998) (ruling plaintiff's “belated assertions of [ ] injuries” were “insufficient to justify his claim as a matter of law”). But circumstances which allow courts to dismiss prior testimony as producing a “sham issue of fact” are rare, and such a ruling is appropriate only if “a party's inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.” Rojas, 660 F.3d at 106 (emphasis in original). The Second Circuit has further warned courts they should not “routinely engage in searching, skeptical analyses of parties’ testimony in opposition to summary judgment.” Id.

Generally, when factual contradictions do not involve the level of “inexplicable” inconsistency required to be found “sham issues of fact,” courts must favor the version of events presented in a sworn deposition over that presented in a complaint or affidavit. See AB ex rel. EF v. Rhinebeck Cent. Sch. Dist., 361 F. Supp. 2d 312, 316 (S.D.N.Y. 2005) (“[F]aced with deposition testimony that contradicts an affidavit and a complaint, th[e] court must accept [plaintiff's] sworn testimony.”); Thomas v. Westchester Cty. Health Care Corp., 232 F. Supp. 2d 273, 279 (S.D.N.Y. 2002) (“Faced with [a] confounding contradiction [between plaintiff's allegations in her complaint and her sworn testimony], the Court has no basis for accepting as true the vague statements in [the] complaint as opposed to [plaintiff's] sworn testimony.”).

Here, there are some inconsistencies between Plaintiffs’ deposition testimony, their affidavits, and the allegations in the Complaint, though these contradictions do not rise to the level of utter incoherence required to dispose of the claims entirely. As noted above, where this is the case, the Court must ignore any contradictory or unsupported allegations in the Complaint and rely instead on Plaintiffs’ testimony. As Defendants correctly note, Plaintiffs’ affidavits raise certain factual assertions for the first time. Determining whether such inconsistent assertions are merely probative of Plaintiffs’ credibility or should be excluded as sham issues of fact requires individualized application of the doctrine to each possible contradiction. This analysis is undertaken in the discussion of each claim below; when a contradiction is found, the Court will consider each affidavit only “to the extent it augments, without contradicting, [each Plaintiffs’] deposition testimony, [or] addresses issues not explored thoroughly in that deposition.” See Torrico v. Int'l Bus. Machines Corp., 319 F. Supp. 2d 390, 394 (S.D.N.Y. 2004).

C. Plaintiff's First and Second Causes of Action for Unpaid Overtime Wages under the FLSA and the NYLL

The FLSA requires that “ ‘for a workweek longer than forty hours,’ an employee working ‘in excess of’ forty hours shall be compensated for those excess hours ‘at a rate not less than one and one-half times the regular rate at which [she or] he is employed.’ ” Dejesus, 726 F.3d at 88 (quoting 29 U.S.C. § 207(a)). The NYLL includes the same requirement, providing that “[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate” for “working time over 40 hours” during “each workweek.” 12 N.Y.C.R.R. § 142-2.2. “[I]n order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). “Plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 44-45 (E.D.N.Y. 2015) (finding allegations that plaintiff worked over 40 hours per week for a specific time period sufficient to establish an overtime claim).

Each Plaintiff alleges in the Complaint that he worked a regular schedule of five days per week, from approximately 8:00 a.m. to 4:30 p.m. each day, Dkt. No. 1 ¶¶ 27, 35, 43, and each Plaintiff confirmed that this was his typical schedule in deposition testimony. See Dkt. No. 48-7 at 33, 100, 159-60. Plaintiffs further testified that they generally had daily thirty-minute lunch breaks, as well as a smaller break of either ten or fifteen minutes every morning. See id. at 32-33, 100-01, 162. Defendants concur that this was generally the regular schedule for all three Plaintiffs. See Dkt. No. 48-2 at 3.

Because time spent on “bona fide meal breaks” is not compensable under the FLSA or NYLL, and therefore does not contribute to a count of weekly hours worked for overtime purposes (see Gamero, 272 F. Supp. 3d at 499 (quoting Hernandez v. Jrpac, No. 14-CV-4176 (PAE), 2016 WL 3248493, at *27 (S.D.N.Y. June 9, 2016)); see also N.Y. Lab. Law § 162; 29 U.S.C. § 207(a)(2)(C)), any lunch breaks must be considered in analyzing whether this schedule can support Plaintiffs’ overtime claims. Defendants argue that once these daily thirty-minute meal breaks are accounted for, Plaintiffs have alleged a workweek which includes only the statutory-standard 40 hours, and summary judgment for Defendants on the overtime claims is therefore appropriate. See Dkt. Nos. 48-1 at 3, 48-4 at 9.

Meal breaks are generally considered compensable time under the FLSA if it they are spent performing activities “predominantly for the benefit of the employer.” Reich, 128 F.3d at 65. The Second Circuit has extended this standard in considering meal breaks during which “the employee is required to be on-call to handle whatever work arises during the lunch break” to be compensable work time rather than a bona-fide meal break. Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 116 (2d Cir. 2023); see also 29 C.F.R. § 785.19 (“The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.”). Whether a particular employee's responsibilities during his ostensible break time constitute “work” under the FLSA is a question of fact for the jury. See Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944) (citing Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943)).

Plaintiffs’ affidavits state that they were required to “work through lunch” when deliveries arrived approximately twice a week. Dkt. No. 48-7 at 67, 123, 183. In his deposition, Garcia testified, “[o]ccasionally, we had to work through lunch because a delivery was coming in or something like that,” estimating interruptions as happening “maybe two or three times․ In a week.”⁵ Id. at 49-50. Nieto likewise testified that the length of his meal breaks depended on whether a delivery arrived. See id. at 162. Although Ramirez, in his deposition, did not independently bring up interruptions when asked about the breaks he was provided, see id. at 100-01, he was never asked specifically about whether he ever worked during his meal breaks. As discussed in Section III.B above, application of the sham affidavit doctrine to exclude affidavit testimony requires there be no “plausible explanation” for a possible contradiction, and elaboration on a topic left ambiguous or not sufficiently explored in deposition may still be considered by the court in evaluating a motion for summary judgment. See Langman Fabrics, 160 F.3d at 112. Because of the parties’ failures to question Ramirez on the topic of interrupted meal breaks during his deposition, his affidavit is better described as elaborating on his deposition than contradicting it, on a topic which “was not, or was not thoroughly or clearly, explored in the deposition.” See Palazzo ex rel. Delmage, 232 F.3d at 43; Rule, 85 F.3d at 1011 (holding the sham affidavit doctrine does not apply to new elaboration on a topic, “especially where the party was not asked sufficiently precise questions” at deposition). The “sham affidavit” doctrine therefore does not apply to his affidavit. See id.

The same is true of testimony concerning the frequency of these interruptions; whether twice a week is “occasional” may be “ambiguous” or “confusing[,]” does not rise to the level of genuine contradiction. See Williams v. Bethel Springvale Nursing Home, No. 14-CV-9383 (NSR), 2017 WL 4046338, at *4 (S.D.N.Y. Sept. 12, 2017) (declining to consider a new estimate of overtime hours worked to be a sham issue of fact in an FLSA case); see generally Langman Fabrics, 160 F.3d at 112 (“[T]he court considering a summary judgment motion should not disregard the later testimony because of an earlier account that was ambiguous, confusing, or simply incomplete.”). Along the same lines, although Garcia and Ramirez each testified in their depositions that they worked eight hours per day and described their lunch breaks as lasting 30 minutes every day (see Dkt. No. 48-7 at 33-34, 100-01), these do not truly contradict their other testimony to the extent they would be considered “sham” issues of fact: among other “plausible explanations,” Plaintiffs may have been referring to their typical scheduled hours. See Langman Fabrics, 160 F.3d at 112. The ambiguity in these statements rises only to the level of credibility and is a matter for the factfinder at trial.

Possible inconsistency in Plaintiffs’ estimates of the frequency of meal breaks is not sufficient reason to dispose of their claims, either. It is not necessary to establish an unambiguous, uncontested amount of damages for an FLSA claim to survive summary judgment. For example, in Kuebel, the Second Circuit rejected an argument that “an apparent inconsistency between [the plaintiff's] deposition testimony and subsequent declaration” affecting calculation of damages justified summary judgment in favor of defendants. See Kuebel, 643 F.3d at 364. The Anderson standard is “not onerous,” and does not require plaintiffs to unambiguously demonstrate their exact damages to survive summary judgment, only to show that there is a “reasonable basis” to decide on damages at trial. See id. at 364-65 (“[T]he dispute as to the precise amount of [a plaintiff's] uncompensated work [is] one of fact for trial,” where the plaintiff can testify and the defendant can cross-examine him, to cut through any ambiguity and allow the jury to assess the plaintiff's credibility).

Here, like in Kuebel, possible ambiguity in the record regarding the amount of overtime hours Plaintiffs worked does not compel a grant of summary judgment for Defendants. See Sherald v. Embrace Techs., Inc., No. 11-CV-939 (TPG), 2013 WL 126355, at *6 (S.D.N.Y. Jan. 10, 2013) (“[A] defendant is not entitled to summary judgment under the FLSA simply because the plaintiff has not precisely quantified the amount of uncompensated work he has performed, so long as a genuine issue of fact exists as to whether some uncompensated work was performed, defendants knew of this work, and a reasonable basis exists for calculating the amount of that work.”). No matter whether a jury considered Garcia's estimate of “two or three times” to be over the course of a week (as does his affidavit), a month, or his entire employment, the jury would have a sufficient basis for assigning damages.

Although the question of interrupted meals establishes a material factual dispute sufficient to preclude summary judgment, additional allegations are also probative in this regard. In their depositions, Garcia and Nieto testified that they “sometimes” (and per Garcia, “three, four, [or] five times,” although he “[could not] remember” clearly) had to work late, until 5:00 PM. See Dkt. No. 48-7 at 32-35, 159-60. Their affidavits further allege that this was a twice-weekly occurrence. Id. at 67, 183. To the extent Garcia's testimony is contradictory, even an allegation that he worked uncompensated overtime approximately five times over the course of his employment would still provide a basis for recovery under the FLSA and NYLL. See Estrella v. P.R. Painting Corp., 356 F. App'x 495, 497 (2d Cir. 2009) (“If [the employer] failed to compensate [employees] properly for even one hour of overtime, liability is established. Anything else relates only to damages.”). Further, each Plaintiffs’ affidavit describes him working six days a week, whether twice a month for Garcia, Dkt. No. 48-7 at 67, once a year for Ramirez, id. at 123, and once a month for Nieto, id. at 183. Only Garcia testified to occasional six days workweeks in his deposition, see id. at 33, while the other Plaintiffs testified they worked five days a week. Id. at 100, 160. Like the questioning of Plaintiffs’ alleged interrupted meal breaks, specific inquiry was not made into the issue of working more than five days a week, and the explanation that they were merely referring to their typical schedules is “reasonable” enough to preclude application of the sham affidavit rule. See Palazzo ex rel. Delmage, 232 F.3d at 43; Rule, 85 F.3d at 1011.

Accordingly, because genuine disputes of material fact exist as to whether Plaintiffs worked uncompensated overtime, the undersigned respectfully recommends that Defendants’ motion for summary judgment be denied with respect to Plaintiffs’ first and second causes of action.

D. Plaintiff's Third and Fourth Causes of Action for Unpaid Wages under the FLSA and the NYLL

Plaintiffs also seek reimbursement for unpaid wages from their employment with Defendants, based on claimed failures to pay Plaintiffs the wages they were due for the final weeks of their employment in violation of 28 U.S.C. § 206(a) and NYLL § 191(a). See Dkt. No. 1 ¶¶ 32, 40, 48, 77-84.

“The FLSA and the NYLL both ‘guarantee[ ] compensation for all work ․ engaged in by [covered] employees.’ ” Salinas v. Starjem Rest. Corp., 123 F. Supp. 3d 442, 472 (S.D.N.Y. 2015) (quoting Kuebel, 643 F.3d at 359). “To establish liability on a claim for underpayment of wages, ‘a plaintiff must prove that he performed work for which he was not properly compensated, and that the employer had actual or constructive knowledge of that work.’ ” Id. (quoting Kuebel, 643 F.3d at 359). As is true of the other labor law claims in this case, however, the Anderson standard for shifting the burden of proof in the absence of employment records applies, and plaintiffs need only provide sufficient evidence to support a “just and reasonable inference” about the extent of their uncompensated work. Id. (quoting Anderson, 328 U.S. at 687).

Defendants contend that Plaintiffs have been “paid in full for all hours worked during their employment.” Dkt. No. 48-1 at 4. Each Plaintiff has alleged different facts to support their claims of unpaid wages, starting with the Complaint, and their allegations will therefore be examined separately.

1. Garcia

The Complaint and Garcia's affidavit each state that Garcia was not paid for the final six weeks of his work for Defendants. Dkt. Nos. 1 ¶ 32, 48-7 at 68. In his deposition, however, Garcia gives somewhat muddled testimony about his unpaid work. See Dkt. No. 48-7 at 39-43. He does refer to being owed “weeks of pay” at the end of his employment, and later reiterates that “[i]t had been an accumulation of a number of weeks, like, four, five, or six weeks, that they owed us all money.” Id. at 41, 42. But Garcia also testified that he “remember[ed], in particular” one day which he was never paid for, and that he was told by the foreman that he was not paid for that day because had not written his name on a sign-in sheet used to track which days each employee worked. Id. at 40-41. At the end of this exchange, when asked about the number of hours for which he was not paid in full, he stated unequivocally “one day.” Id. at 43.

Garcia's testimony that he was not paid for weeks of work is not barred by the sham affidavit rule. Despite his affirmative statement that he was not paid for “one day” of work, the ambiguity in how to interpret that statement in light of Garcia's deposition testimony that he was owed “four, five, or six weeks” of pay at the end of his employment, see Dkt. No. 48-7 at 41-42, prevents the Court from excluding his affidavit testimony. See Hayes, 84 F.3d at 620 (holding that “only arguably contradictory” deposition testimony does not allow striking a subsequent affidavit); Langman Fabrics, 160 F.3d at 112 (holding that an affidavit clarifying “confusing [or] ambiguous” testimony at deposition is not excludable under sham affidavit doctrine, and that any “plausible explanation” for an inconsistency must be credited); Palazzo ex rel. Delmage, 232 F.3d at 43 (ruling sham affidavit doctrine does not exclude testimony about a topic which was “not thoroughly or clearly[ ] explored in [the] deposition”); Perez v. Manna 2nd Ave. LLC, No. 15 CIV. 4655 (JCF), 2016 WL 7489040, at *3 (S.D.N.Y. Dec. 28, 2016) (declining to apply sham affidavit doctrine when testimony was “ambiguous and open to interpretation”).

Nor was the ambiguity cured by Defendants’ counsel's subsequent attempt at clarification, in which Garcia was asked: “[i]n your prior testimony a few moments ago, you testified that you were not paid for one day of week. [sic] Why in your complaint did you say that you were not paid for six weeks of work?” Dkt. No. 48-3 at 64. Garcia replied by testifying, “They paid up until they wanted to[,]” after which no further clarification was sought. Id. Regardless of whether Garcia is owed one day or “four, five, or six weeks” of wages at the end of his employment, see Dkt. No. 48-7 at 41-42, a genuine issue of material fact exists as to whether he is owed unpaid wages.

Consequently, as Garcia's claims of unpaid wages involve a genuine dispute as to a material fact, the undersigned respectfully recommends that Defendants’ motion for summary judgment be denied with respect to Garcia's third and fourth causes of action.

2. Ramirez

The Complaint alleges that Ramirez was not paid for his final four weeks of work. Dkt. No. 1 ¶ 48. Ramirez, however, testified in his deposition that, although he was owed four weeks of wages at the time he filed the current case, he was paid all outstanding wages on the day he was fired: “yes, they did [pay me for all the hours I worked]․ [W]hen I was fired on the 17th of June, I was given the four weeks of—a check with four weeks that they owed me.” See Dkt. No. 48-7 at 105-06. Ramirez's affidavit in opposition to summary judgment thereafter did not reiterate any claim for unpaid wages. See id. at 122-24. Furthermore, in their response to Defendants’ Rule 56.1(a) statements, Plaintiffs dispute the claim that Ramirez was “paid in full for all hours worked” only to the extent that they allege Plaintiffs were not paid the required premium rate for overtime, an allegation which relates to Plaintiffs’ first and second causes of action for unpaid overtime, not the third and fourth claims for unpaid wages. Dkt. No. 48-6 at 5; see Myers v. Hertz Corp., 624 F.3d 537, 545 n.1 (2d Cir. 2010) (“New York courts have suggested that plaintiffs may not use Labor Law § 191 to seek unpaid wages to which they claim to be entitled under a statute [such as an unpaid overtime premium]; rather § 191 guarantees only that the wages the employer and employee have ‘agreed’ upon be paid in a ‘timely’ manner again according to the “terms of [the employee's] employment.” (citing Jara v. Strong Steel Door, Inc., No. 14643/05, 20 Misc. 3d 1135, 2008 WL 3823769, at *11-*12 (N.Y. Sup. Ct. Aug. 15, 2008))); Kone v. Joy Constr. Corp., No. 15-CV-1328 (LTS), 2016 WL 866349, at *4 (S.D.N.Y. Mar. 3, 2016) (holding that NYLL “Section 191 provides no independent recourse” for recovery of “wages and overtime to which Plaintiffs contend they were entitled by statute rather than the amounts that the employer had in fact agreed to pay”).

Here, the record unambiguously establishes via Ramirez's deposition testimony that he was paid for the four weeks’ wages owed to him on the day of his termination. See Dkt. No. 48-7 at 105-06. Accordingly, there being no genuine issue of material fact regarding unpaid wages due to Ramirez, the undersigned respectfully recommends that Defendants’ motion for summary judgment be granted with respect to Ramirez's third and fourth causes of action.

3. Nieto

Nieto alleges in the Complaint that he was not paid for his final five weeks of work. Dkt. No. 1 ¶ 40. He makes an equivalent claim in his affidavit, stating that he was not paid for “five weeks of [his] employment.” Dkt. No. 48-7 at 184. In his deposition, however, despite repeated and extensive questioning on the topic of uncompensated hours he worked, Nieto does not testify to never being paid for his final five weeks of work. See id. at 163-65. Instead, he alleged only that he would “randomly” receive “some” checks which he knew “did not include all the hours that [he] worked,” but that he was unsure of which weeks were impacted or how many hours he was not compensated for. See id.

There does not appear to be any “plausible explanation” for Nieto's failure to mention that he was never compensated for his final five weeks of work when pressed repeatedly to provide details about any uncompensated hours during his deposition. Like the deponent in Butler, 150 Fed. Appx. at 46, Nieto was repeatedly questioned about the topic and failed to make any reference to Defendants’ “critical, obviously material” failure to pay him for several weeks of work at the very end of his employment, instead describing an entirely different and far vaguer set of uncompensated hours. See Dkt. No. 48-7 at 163-65; see also Golden, 2007 WL 4299443, at *9 (“[C]ourts in the Second Circuit are particularly reluctant to credit affidavit testimony that alleges critical, obviously material facts that were not mentioned at deposition, noting that such circumstances strongly suggest a sham affidavit.”). Plaintiffs’ counsel also failed to depose Nieto to clarify the matter, although counsel otherwise demonstrated a willingness to do so in other circumstances, such as eliciting Garcia's testimony about interrupted meal breaks. See id. at 49, 54, 163-65.

Furthermore, Nieto's statement that he did not remember any specific weeks for which he was not paid his full wage (id. at 164) seems inexplicable if he was unpaid for the final weeks of his employment, and the kind of circumstance generally considered suggestive of a sham issue of fact. See Kennedy, 570 F. App'x at 84 (“[Sham affidavit doctrine applies] against a party who testified in his deposition that he was unable to remember a particular fact, and then, in response to a summary judgment motion, submitted an affidavit claiming a recollection of events that would have raised an issue for trial.”); Fed. Deposit Ins. Corp., 500 F. Supp. 3d at 94 (“[A] party cannot create a triable issue of fact ․ by renouncing deposition testimony to the effect that he could not remember a particular fact which he now purports to remember.”); Raskin, 125 F.3d at 63 (considering specific allegations about the content of a meeting which the plaintiff “could not remember” at deposition to be contradictory).

Nieto's affidavit will therefore be considered only to the extent it does not contradict the version of events in his sworn deposition: that he was “randomly” underpaid at various times during his employment with Defendants, but cannot provide any more specific recollections about the frequency, timing, or amounts of these underpayments. See Dkt. No. 48-7 at 163-65. This is not a sufficiently detailed factual allegation to survive summary judgment. Although the Anderson standard is not a high bar for plaintiffs, it requires they allege at least enough detail to allow the factfinder to make a “just and reasonable inference” about number of unpaid hours in question. Anderson, 328 U.S. at 687. While plaintiffs are permitted to rely on their “memory and experience” alone in FLSA cases, “[the] standard requires that plaintiffs draw on those resources in providing complaints with sufficiently developed factual allegations.” Dejesus, 726 F.3d at 90. A claim that Nieto was “randomly” underpaid an undetermined amount “some weeks” does provide any means by which a factfinder could infer the amount of unpaid wages, nor does it provide even an estimate of frequency or the typical amount of underpayment. Cf. Adams v. Bloomberg L.P., No. 20-CV-7724 (RA), 2023 WL 5769492, at *8 (S.D.N.Y. Sept. 7, 2023) (granting summary judgment against plaintiff's FLSA overtime claim because her recollections did not specify even “when this ․ work was performed, what tasks she was performing, or with what frequency it occurred.”); Nakahata, 723 F.3d at 201 (upholding dismissal of FLSA and NYLL overtime claims when plaintiffs “merely alleged that they were not paid for overtime hours worked,” without sufficient “specificity”).

Accordingly, the undersigned respectfully recommends that Defendants’ motion for summary judgment be granted with respect to Nieto's third and fourth causes of action.

E. Plaintiffs’ Fifth Cause of Action for Frequency of Pay under the NYLL

Plaintiffs seek to recover based on violations of the frequency of pay requirements under NYLL § 191 (see Dkt. No. 1 ¶¶ 85-88), which requires “manual worker[s] ․ be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned.” N.Y. Lab. Law § 191(a)(i).

A “manual worker” for the purposes of Section 191(a) is “a mechanic, workingman or laborer.” N.Y. Lab. Law § 190(4). “More helpfully, the New York Department of Labor has long interpreted the term to include ‘employees who spend more than 25 percent of their working time performing physical labor.’ ” Cooke v. Frank Brunckhorst Co., LLC, 734 F. Supp. 3d 206, 215 (E.D.N.Y. 2024) (quoting N.Y. Dep't of Labor Opinion Letter, No. RO-09-0066 (May 21, 2009)). This is a broad definition which includes many classes of workers beyond unskilled laborers. Id. Neither party disputes that Plaintiffs were employed as “scaffolder[s]” (see Dkt. No. 48-6 at 2), and Plaintiffs have variously testified that they also were required to do work including “demolition work, brick work, roof work, and cement mixing” (see Dkt. No. 48-7 at 66, 122, 182), facts which establish Plaintiffs were manual workers subject to the weekly pay period requirement of Section 191(a)(i). See Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047 (ENV) (MMH), 2024 WL 4309775, at *12 (E.D.N.Y. Sept. 26, 2024) (holding that a plaintiff “establish[ed his] status as [a] manual worker[ ] because [he was] employed as a scaffold worker”); Lucero v. Shaker Contractors, Corp., No. 21-CV-8675 (LGS) (JW), 2023 WL 4828640, at *2, *7 (S.D.N.Y. Apr. 21, 2023) (considering plaintiffs who principally “assembled scaffolding, installed roofs, laid bricks, undertook demolition, and completed other general construction work” to “ ‘fit squarely’ within the meaning of manual workers under the NYLL” (citation omitted)), report and recommendation adopted as modified, 2023 WL 4936225 (July 27, 2023).

Whether a violation of the frequency of pay requirements of NYLL § 191(a)(i) confers a private right of action has been a contentious topic in state courts, subject to a split between the First and Second Departments. See Zachary v. BG Retail, LLC, 716 F. Supp. 3d 339, 347-49 (S.D.N.Y. 2024) (collecting cases); compare Vega v. CM & Assocs. Constr. Mgmt., LLC, 107 N.Y.S.3d 286 (1st Dep't 2019) (holding that biweekly pay of a manual laborer constituted “underpayment” for purposes of the statute and conferred a private right of action) with Grant v. Global Aircraft Dispatch, Inc., 204 N.Y.S.3d 117 (2d Dep't 2024) (holding NYLL Sections 191 and 198 conferred no private right of action for biweekly payments to a manual worker). “The clear weight of authority among district courts in the Second Circuit is aligned with the conclusion in Vega that there is an implied private right of action to enforce Section 191.” Charles v. United States of Aritzia Inc., No. 23-CV-09389 (MMG), 2024 WL 4167502, at *6 (S.D.N.Y. Sept. 12, 2024). Indeed, almost “every New York court in the Second Circuit ha[d] adopted [Vega’s] holding” in concluding that the NYLL confers a private right of action to collect liquidated damages for payments which do not follow the statutory schedule of Section 191, even those which are ultimately made in full. See Gamboa v. Regeneron Pharm., Inc., 719 F. Supp. 3d 349, 354 (S.D.N.Y. 2024) (collecting cases).

In May 2025, the New York Legislature clarified the matter decisively with an amendment to Section 198(a-1), which was written to “take effect immediately and [to] apply to causes of action pending or commenced on or after such date.” Act approved May 9, 2025, NY LEGIS 56, 2025 Sess. Law News of N.Y. Ch. 56 (S. 3006-C), Part U (McKinney's). As amended, NYLL § 198(a-1) now explicitly states that it provides a private cause of action for violations of Section 191(a), although “liquidated damages shall not be applicable to violations ․ where the employer paid the employee wages on a regular payday, no less frequently than semi-monthly.”⁶ N.Y. Lab. Law § 198(a-1).

Plaintiffs’ specific allegations of Defendants’ frequency-of-pay violations are especially muddled, even in comparison to their other claims. In the Complaint, each Plaintiff alleges that they were paid regularly on a bi-weekly basis, in violation of the statutorily required weekly pay schedule. See Dkt. No. 1 ¶¶ 31, 39, 47. In Plaintiffs’ sworn depositions, however, each Plaintiff describes the frequency-of-pay violations differently—none of which are consistent with the Complaint. At Garcia's deposition, Garcia testified that he had to “wait four weeks to get one week of pay,” and that “[Defendants] would carry over the hours that they owed [him] from week to week,” but that he received a paycheck every week. Dkt. No. 48-7 at 39, 50-52. At Ramirez's deposition, he testified that “every four weeks [he] would get a check that only covered three weeks of work,” although he was paid for all his work. Id. at 105. He further testified that at the time he was fired, he was owed wages for “four weeks of work,” which he was paid when he was fired. Id. at 106. Nieto stated that he was paid “weekly.” Id. at 138. None of the Plaintiffs testified at their depositions that they were paid on a biweekly basis, in contrast to the allegations in the Complaint. See id.; Dkt. No. 1 ¶¶ 31, 39, 47.

In their affidavits, Plaintiffs do not maintain their allegations of bi-weekly pay from the Complaint, instead each alleging that their first paychecks from Defendants were late by three weeks and arrived on their fourth week of work. Dkt. No. 48-7 at 67, 123, 183. After this initial paycheck, they continued to receive weekly checks, each of which represented their payment for the pay period three weeks previous. Id. Plaintiffs additionally allege in their affidavits that “sometimes” they would not be paid “for weeks at a time,” and Ramirez reiterates that he was paid late for four weeks of work when he was fired—although it is not entirely clear whether this was the same several weeks of pay which Plaintiffs were consistently owed after their initial weeks of work, or whether it represents an additional period during which they had not been paid. Id. at 68, 123-24, 182. Plaintiffs state in their affidavits that their nonpayment in this initial four-week period and on the other occasions during which they went without pay caused financial difficulties, including challenges paying bills and normal expenses. Id.

Although the contradiction between Defendants’ testimony and the Complaint is blatant, using it as a basis for disposal of their claims in summary judgment would require their various allegations to be so incoherent that examination of the case inevitably requires the conclusion that “no reasonable jury could [credit Plaintiffs’] testimony.” See Jeffreys, 426 F.3d at 551, 554-55. That Plaintiffs contradicted the Complaint in their later testimony rises only to the level of impacting those “[a]ssessments of credibility and choices between conflicting versions of the events” which “are matters for the jury, not for the court on summary judgment.” Rule, 85 F.3d at 1011 (citing Fed R. Civ. P. 56(e) 1963 Advisory Committee Note).

Instead, “faced with deposition testimony that contradicts ․ a complaint, th[e] court must accept [Plaintiffs’] sworn testimony.” AB ex rel. EF, 361 F. Supp. 2d at 316. The Court must therefore compare each Plaintiff's deposition testimony to his affidavit in determining whether contradictions between the two eliminate any disputes as to material facts. They do not. It is true that Plaintiffs’ deposition testimony is “confusing, ambiguous, or simply incomplete,” Langman Fabrics, 160 F.3d at 112. Moreover, Defendants’ failure during Plaintiffs’ depositions to clarify their assertions regarding pay schedules, or to inquire more deeply of Garcia and Ramirez about their ambiguous late payment allegations, did nothing to resolve any ambiguities. But, as this Court has concluded in several of Plaintiffs’ other allegations raised for the first time via affidavit, this is insufficient basis to apply the sham affidavit doctrine to strike the testimony. See id.; Palazzo ex rel. Delmage, 232 F.3d at 43; Perez, 2016 WL 7489040, at *3. The further explication of Plaintiffs’ claims in their affidavit provides sufficiently detailed allegations of FLSA and NYLL violations to pass the first Anderson prong.

They also pass the second Anderson prong: Plaintiffs’ allegations that they were not paid during their initial three weeks of work establish sufficient basis to reasonably infer damages. See Dkt. No. 48-7 at 67, 106, 123, 182; see generally, Kuebel, 643 F.3d at 362-65 (discussing the precision of a damages estimate necessary to survive summary judgment). The amended NYLL Section 198(a-1) permits recovery of liquidated damages for Section 191(a)(i) violations involving late payments other than those made in full on a regular, at least semi-monthly schedule. See N.Y. Lab. Law § 198(a-1). Plaintiffs’ accounts of their first four weeks of work, at least, supports possible recovery of liquidated damages for that period, and Plaintiffs provide sufficient information (their wages at the time and an estimate of their regular schedules) to reasonably compute the amount. See Dkt. No. 48-7 at 66-67, 122-23, 182. Whether Plaintiffs have provided specific enough details to calculate damages for the rest of their employment depends on the approach used to calculate damages: a lack of specificity about the amount and frequency of underpayments may not provide sufficient information to determine damages during their employment other than the first weeks.

Defendants highlight Ramirez's testimony in his deposition that he was paid in full for all the hours he worked as a reason to rule against Plaintiffs in their frequency-of-pay claims. Dkt. No. 48-10 at 9-10. Even if Plaintiffs have in fact been paid in full for their work, this does not affect their NYLL § 191 cause of action, which relates to late payments in violation of the statutory schedule. See N.Y. Lab. Law § 191(a)(i) (“A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned.”); Vetri, 309 N.Y. at 405 (“Failure to pay the amounts prescribed under that section within six days after they are earned ․ is what would constitute a violation of the statute.”) (citing former N.Y. Lab. Law § 196).

Accordingly, the undersigned respectfully recommends that Defendants’ motion for summary judgment be denied with respect to Plaintiffs’ fifth cause of action.

F. Plaintiffs’ Sixth and Seventh Causes of Action

Plaintiffs allege violations of the wage statement and notice requirements of NYLL § 195(3) and § 195(1) in their sixth and seventh causes of action. See Dkt. No. 1 ¶¶ 89-91, 92-94. Plaintiffs, however, lack Article III standing and the Court does not have subject matter jurisdiction over these claims. As a result, the undersigned respectfully recommends that Defendants’ motion for summary judgment be denied as to Plaintiffs’ sixth and seventh causes of action, and that the same be dismissed without prejudice for lack of subject matter jurisdiction.

Article III of the United States Constitution restricts federal court power to hearing “cases” and “controversies.” U.S. Const. Art. III, § 2, cl. 1. “For there to be a case or controversy under Article III, the plaintiff must have a ‘personal stake’ in the case—in other words, standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Raines v. Byrd, 521 U.S. 811, 819-820 (1997)). “To establish [Article III] standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). “[S]tanding is a threshold matter of justiciability, and if a plaintiff lacks standing to sue, the Court has no choice but to dismiss the plaintiff's claim for lack of subject-matter jurisdiction.” Dunston v. Piotr & Lucyna LLC, No. 21-CV-6402 (AMD) (SJB), 2023 WL 5806291, at *4 (E.D.N.Y. July 26, 2023) (citing Tavarez v. Moo Organic Chocolates, LLC, No. 21-CV-9816 (VEC), 2022 WL 3701508, at *4 (S.D.N.Y. Aug. 26, 2022)), report and recommendation adopted, 2023 WL 5806253 (E.D.N.Y. Sept. 7, 2023). “Like all subject matter issues, standing can be raised sua sponte.” Dunston, 2023 WL 5806291, at *4 (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005)).

“[A] plaintiff must establish Article III standing for all of his claims, whether or not the Court also has supplemental jurisdiction.” Guthrie v. Rainbow Fencing Inc., No. 21-CV-5929 (KAM) (RML), 2023 WL 2206568, at *3 (E.D.N.Y. Feb. 24, 2023) (emphasis in original). Although a court may hear state claims if they “derive from a common nucleus of operative facts, id. (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)), a Court cannot “discern or speculate which of the ‘operative facts’ establish an injury to [a plaintiff] on his NYLL wage notice and wage statement claims.” Id.

Here, Plaintiffs do not allege facts linking any legally cognizable injury suffered to Defendants’ purported failure to provide wage statements or notice of Plaintiffs’ rates of pay, regular pay day, and such other information as required by the NYLL. The Complaint merely alleges that Defendants failed to comply with these statutory mandates. See Dkt. No. 1 ¶¶ 89-91, 92-94. The Supreme Court “has rejected the proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.’ ” TransUnion LLC, 594 U.S. at 426 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). Consequently, following TransUnion, “courts throughout the Second Circuit have [ ] found no standing in cases, such as the instant case, where [p]laintiffs have not established any injury traceable to violation of the wage notice and statement requirements.” Ramirez v. Urion Constr. LLC, 674 F. Supp. 3d 42, 55 (S.D.N.Y. 2023) (collecting cases); see also Lucero v. Shaker Contractors, Corp., No. 21-CV-8675 (LGS), 2023 WL 4936225, at *3 (S.D.N.Y. July 27, 2023) (“Courts in this District have applied TransUnion to find plaintiffs lack standing to bring claims under the NYLL's wage notice and wage statement provisions when those plaintiffs do not make specific allegations of concrete injuries they suffered as a result of their employers’ failure to provide required wage records.”); Alfaro v. Saba Live Poultry Corp I, No. 23-CV-1102 (RA) (KHP), 2024 WL 2112878, at *5 (S.D.N.Y. May 6, 2024) (“Because Plaintiffs only allege that Defendants violated the law and did not allege separate harm for purposes of Article III standing, Plaintiffs are not entitled to statutory damages.”), report and recommendation adopted, 2024 WL 3595962 (July 30, 2024).

The case styled Ramos v. Allied Concrete Indus. Inc., No. 23-CV-3366 (NJC) (ST), 2024 WL 5168766 (E.D.N.Y. Dec. 19, 2024) is illustrative here. In Ramos, the plaintiff's cause of action was dismissed for lack of standing under Rule 12(b)(1) because the complaint did not allege “any non-conclusory downstream harm that Plaintiff suffered from Defendants’ failure to provide wage statements or wage notices” and “only allege[d] that Defendants ‘failed to provide Plaintiff with a proper wage notice and statements in accordance with § 195 of the NYLL.’ ” Id. at *2. The Ramos court found that conclusory allegations were “not sufficient to plead a downstream harm that is causally connected to Defendants’ failure to provide wage notices or wage statements,” and that plaintiff had “not pointed to any evidence in the record demonstrating by a preponderance of the evidence that he suffered a downstream harm due to Defendants’ alleged failure to provide wage statements or wage notices.” Id.

Here, Plaintiffs likewise do not point to any actual harm resulting from Defendants’ failure to provide wage notices and statements. See Guthrie, 113 F.4th 300, 311 (2d Cir. 2024) (finding that plaintiff lacked standing to sue for a violation of NYLL Section 195 “[w]ithout plausible allegations that he suffered a concrete injury because of [the defendant's] failure to provide the required notices and statement”). The closest Plaintiffs come to alleging a particular harm is that, because they “did not receive a pay stub indicating [their] rate[s] of pay and hours worked for the payment period when Defendants gave [them] the check,” they were “unable to identify whether [they were] getting paid properly for all hours worked for the week the check covered.” Dkt. No. 48-7 at 68, 123, 183. Plaintiffs, however, provide no further description of any consequent injury. Id.

Courts in this district have held that “ambiguity, confusion ․ and difficulty in reconciling timesheets with wage statements, [and] difficulty in making expostulations to Defendants of underpayment of wages” because of a defendant's failure to provide wage statements or notices do not constitute an adequate injury for standing purposes. See Weller v. Icahn Sch. of Med. At Mount Sinai, No. 23-CV-4775 (PKC) (LB), 2025 WL 745992, at *6-*7 (E.D.N.Y. Mar. 7, 2025) (noting also that any alleged violations of recordkeeping “did not prevent Plaintiff from deciding that he was underpaid and promptly raising issues regarding his pay.”). Even when a plaintiff alleges concrete harm from wage notice and statement violations—for instance, by asserting a consequent inability to verify proper payment each week, and that this prevented her from speaking up and led to further underpayments—courts generally consider such injuries to be too speculative and indirect to confer standing. See Quieju v. La Jugueria Inc., No. 23-CV-264 (BMC), 2023 WL 3073518, *2 (E.D.N.Y. Apr. 25, 2023) (holding that although plaintiff argued lack of notice and wage statements rendered him unable to demand proper his wages, the court found that “[t]his hypothetical chain of events is not what the Supreme Court means by an ‘injury fairly traceable to the allegedly unlawful conduct.’ ”) (quoting California v. Texas, 593 U.S. 659 (2021)).

Here, as in Ramos and Weller, Plaintiffs have not shown that they suffered a concrete injury resulting from Defendants’ purported violations of the NYLL's wage statement and wage notice requirements. Thus, Plaintiffs lack Article III standing to pursue their sixth and seventh causes of action. See, e.g., Vazquez v. Cousins Grocery & Grill Inc., No. 21-CV-4528 (RML), 2025 WL 1384069, at *9 (E.D.N.Y. May 13, 2025) (finding that the plaintiff's wage notice and statement claims are dismissed for lack of standing); Yunganaula v. D.P. Grp. Gen. Contractors/Devs. Inc., No. 21-CV-2015 (CBA) (MMH), 2024 WL 1342739, at *1 (E.D.N.Y. Mar. 29, 2024) (noting that the plaintiff “lacks standing to pursue his claims that [the defendant] violated the NYLL's wage notice and wage statement provisions because the plaintiff had not adequately pleaded a tangible injury resulting from [the defendant's] failure to provide the required notices”); Bayne v. NAPW, Inc., No. 18-CV-3591 (MKB) (MMH), 2024 WL 1254197, at *6 (E.D.N.Y. Mar. 25, 2024) (denying plaintiffs’ motion for summary judgment and dismissing wage statement claims for lack of Article III standing because plaintiffs failed to alleged a sufficiently concrete injury); Saavedra v. Dom Music Box Inc., No. 21-CV-6051 (ENV) (JAM), 2024 WL 208303, at *5 (E.D.N.Y. Jan. 19, 2024), report and recommendation adopted (Text Order dated Mar. 13, 2024); Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *11 (E.D.N.Y. Sept. 29, 2023) (dismissing plaintiff's NYLL wage notice and wage statement claims without prejudice); Wang v. XBB, Inc., No. 18-CV-7341 (PKC) (ST), 2022 WL 912592, at *13 (E.D.N.Y. Mar. 29, 2022) (“Plaintiff has not linked any injury-in-fact to [the d]efendants’ failure to provide statutory notices under the NYLL, so she lacks standing to recover on that claim.” (citation omitted)); Francisco v. NY Tex Care, Inc., No. 19-CV-1649 (PKC) (ST), 2022 WL 900603, at *7 (E.D.N.Y. Mar. 28, 2022) (“While those may be technical violations of the NYLL, neither [p]laintiff nor the record demonstrate how those technical violations led to either a tangible injury or something akin to a traditional cause of action[.]”).

Because Plaintiffs lack standing, the Court lacks subject matter jurisdiction over their wage notice and wage statement claims under the NYLL. See Han v. Shang Noodle House, Inc., No. 20-CV-2266 (PKC) (VMS), 2024 WL 4333825, at *6 (E.D.N.Y. Sept. 27, 2024) (granting summary judgment for defendants on NYLL wage statement and notice claims where plaintiff failed to allege an injury caused by his “lack of knowledge” regarding his pay); Chen v. Lilis 200 W. 57th Corp., No. 19-CV-7654 (VEC), 2023 WL 2388728, at *8 (S.D.N.Y. Mar. 7, 2023) (dismissing plaintiff's NYLL recordkeeping claims at summary judgment for lack of standing because plaintiff failed to “establish[ ] a triable issue of fact as to any downstream consequences for failing to receive certain information regarding his wages”).

Accordingly, the undersigned respectfully recommends that Defendants’ motion for summary judgment be denied with respect to Plaintiffs’ sixth and seventh causes of action, and that these claims be dismissed without prejudice for lack of subject matter jurisdiction.

G. Wlodkowski's Status as a Potential Joint Employer

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). The term “person” in this definition may be an “individual” or “any organized group of persons,” including corporations. 29 U.S.C. § 203(a). The FLSA applies to employees who were either (1) engaged in commerce or the production of goods for commerce or (2) employed in an enterprise engaged in commerce or in the production of goods for commerce. 29 U.S.C. §§ 206(a), 207(a).⁷ “To be an ‘enterprise engaged in commerce,’ the defendant-employer must have (a) an annual gross sales volume of at least $500,000, and (b) ‘employees handling, selling or otherwise working on goods or materials that have been moving in or produced for commerce by any person.’ ” Brito v. Marina's Bakery Corp., No. 19-CV-828 (KAM) (MMH), 2022 WL 875099, at *7 (E.D.N.Y. Mar. 24, 2022) (citing 29 U.S.C. § 203(s)(1)(A)(i)-(ii)); see also Vazquez, 2025 WL 1384069, at *2 (“the question of whether a defendant qualifies as an enterprise under the FLSA is not a jurisdictional issue, but an element that a plaintiff must establish in order to prove liability.”). “[A]n employee may be jointly employed by two or more employers,” and “[i]n such cases, joint employers are subject to joint and several liability for FLSA violations.” Michalow v. E. Coast Restoration & Consulting Corp., No. 09-CV-5475 (SLT) (RML), 2017 WL 9400690, at *4 (E.D.N.Y. July 11, 2017) (citation omitted), report and recommendation adopted, 2018 WL 1559762 (E.D.N.Y. Mar. 31, 2018).

There does not appear to be a dispute that New Force and Constructors are employers as the term applies under the FLSA, although this fact does not appear in Defendants’ Rule 56.1(a) statements. See Dkt. Nos. 48-2, 48-6, 48-9. Defendants, however, have argued that “Plaintiffs have not met their burden of showing that there is a genuine issue of material fact” as to whether Wlodkowski is a joint employer. Dkt. No. 48-4 at 24.

Defendants rely on the “economic reality” test set forth in Irizarry v. Catsimatidis, 722 F.3d 99, 109 (2d Cir. 2013)) to argue that Wlodkowski did not own Constructors. See Dkt. No. 48-4 at 24. “The underlying inquiry in determining ‘employer’ status is whether the individual possessed operational control over employees: ‘control over a company's actual ‘operations’ in a manner that relates to a plaintiff's employment.’ ” Tapia v. BLCH 3rd Ave. LLC, 906 F.3d 58, 61 (2d Cir. 2018) (quoting Irizarry, 722 F.3d at 109). “A person exercises operational control over employees if his or her role within the company, and the decisions it entails, directly affect the nature or conditions of the employees’ employment.” Irizarry, 722 F.3d at 110. The NYLL's definition of “employer” is coextensive with the FLSA's definition. See, e.g., Bocon v. 419 Manhattan Ave. LLC, No. 23-CV-3502 (PKC) (MMH), 2025 WL 832730, at *7 (E.D.N.Y. Mar. 18, 2025).

Using the “economic reality” test of Irizarry and Carter v. Dutchess Cmty. College, 735 F.2d 8, 12 (2d Cir. 1984), the factors that the Court may consider in determining whether a party is an “employer” for FLSA purposes 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 (quoting Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983)); see also Vasquez v. Bolla Operating L.I. Corp., No. 22-CV-7014 (NCM) (ST), 2025 WL 1029391, at *4 (E.D.N.Y. Feb. 25, 2025), report and recommendation adopted, 2025 WL 957555 (Mar. 31, 2025) (“Courts routinely hold that allegations that [ ]closely track[ ] the test's factors [ ] are adequate to establish that an individual defendant is an ‘employer.’ ”); Tapia, 906 F.3d at 61 (applying the Carter factors to determine individual liability under the FLSA). “The ‘economic reality’ test encompasses the totality of circumstances, no one of which is exclusive.” Irizarry, 722 F.3d at 106 (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)); Brito, 2022 WL 875099, at *6 (“The test looks at the totality of the circumstances, and no individual factor is dispositive.”).

Defendants contend that Plaintiffs “failed to identify any admissible evidence in their Complaint or deposition testimony to support summary judgment in their favor that [ ] Wlodkowski had control over each of the Plaintiffs and that he was [ ]directly involved in the hiring, firing, [and] setting rates of pay and hours worked of each Plaintiff.” Dkt. No. 48-4 at 24. Defendants point to Wlodkowski's deposition testimony and affidavit to argue that he “is not an owner, officer or director or agent of” Constructors. Id. at 23-24. According to Defendants, the true owner of Constructors is Tomasz Skiba; Wlodkowski is a project manager who “did not and does not have the power or authority to make final decisions” of Constructors. Id. Defendants’ Memorandum of Law claims that “New Force has never directly, indirectly, or vicariously acted as a single employer with Constructors Trade.” Id. at 24. Wlodkowski also allegedly never made hiring or firing decisions of Constructors’ employees. Id. at 23.

Plaintiffs, in contrast, point to their affidavits and deposition testimony stating the opposite: that Wlodkowski hired Plaintiffs, fired Plaintiffs, set all of Plaintiffs’ schedules as well as their rates of pay, “gave [Plaintiffs] their checks,” and often asked “workers to stay late or come in early to complete the project on the jobsite.” Dkt. No. 48-8 at 22.

An issue of material fact clearly exists, and Defendants cannot therefore establish that Wlodkowski was not an employer of Plaintiffs within the meaning and intent of the FLSA and the NYLL. See Cicio v. Lamora, No. 09-CV-431 (GLS) (DEP), 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (“Plaintiff's testimony ․ stands in contrast to the seemingly overwhelming evidence that it did not occur as he alleges. Nonetheless, the weighing of such competing evidence, no matter how weak plaintiff's claim may appear, presents a question of credibility that must be left to the trier of fact.”) (citing Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999)); see also Dye v. Kopiec, No. 16-CV-2952 (LGS), 2016 WL 7351810, at *3 (S.D.N.Y. Dec. 16, 2016) (“Even a self-serving affidavit can establish a genuine dispute of fact so long as the affidavit does not contradict the witness's prior testimony.”). Indeed, due to the fact-specific nature of the inquiry into joint employer status, the Second Circuit has acknowledged that this question is rarely decided at summary judgment. See Hart v. Rick's Cabaret Int'l, Inc., 967 F. Supp. 2d 901, 941 (S.D.N.Y. 2013); see also Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 143-44 (2d Cir. 2008). Courts in this Circuit have routinely denied summary judgment on this issue when there is any dispute of material fact regarding joint employer status of individual defendants. See Ilyina v. Fantasy Lake Resort, Inc., No. 19-CV-4845 (WFK) (JRC), 2022 WL 16855879, at *4 (E.D.N.Y. Nov. 10, 2022) (denying summary judgment because there was an issue of material fact about the specific responsibilities and authorities of an individual defendant with respect to defendant's employer status); Berrezueta v. Royal Crown Pastry Shop, Inc., No. 12-CV-4380 (RML), 2014 WL 3734489, at *11 (E.D.N.Y. July 28, 2014) (denying defendants’ motion for summary judgment regarding an individual defendants’ status as an employer because plaintiffs provided deposition testimony raising questions of fact regarding defendants’ specific responsibilities and employer status). Summary judgment is therefore not warranted on this point as a result.

H. The Exercise of Supplemental Jurisdiction

Defendants argue that should the court decide to grant summary judgment with respect to Plaintiffs’ FLSA claims, they should not exercise supplemental jurisdiction over any remaining NYLL claims. Dkt. No. 48-4 at 19. Plaintiffs do not address this argument, and instead argue only that the court should exercise its supplemental jurisdiction over the NYLL causes of action on the basis of Plaintiffs’ FLSA claims. Dkt. No. 48-8 at 22-23. Given that each Plaintiff has remaining FLSA claims, Defendants’ specific argument is moot, but the Court's supplemental jurisdiction over Plaintiffs’ NYLL claims should still be examined.

Because the Court dismisses Plaintiffs’ sixth and seventh causes of action for violations of NYLL's recordkeeping and wage notice requirements for lack of standing, the Court need not make any determination about the suitability of supplemental jurisdiction over these claims.

The Court does have supplemental jurisdiction over the remaining NYLL claims—Plaintiffs’ second, fourth, and fifth causes of action—for unpaid overtime wages, unpaid wages, and frequency of pay violations. See Dkt. No. 1 ¶¶ 73-76, 81-88. Supplemental jurisdiction extends to state law claims that are “so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Claims “form part of the same case or controversy” when they “derive from a common nucleus of operative fact.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 165 (1997) (quoting Gibbs, 383 U.S. at 725). Claims derive from a common nucleus of operative fact when the facts underlying the claims “substantially overlap[ ].” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006) (quoting Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000)).

Here, supplemental jurisdiction clearly extends to the second and fourth causes of action: Plaintiffs’ first and second causes of action seek to recover for the same violations under the FLSA and NYLL, respectively, and the same is true for Plaintiffs’ third and fourth claims. See Dkt. No. 1 ¶¶ 66-84. This is a prototypical example of the sort of “virtual[ ] overlap” between federal and state causes of action that provides clear supplemental jurisdiction. See, e.g., Roma v. David Carmili, Physician, P.C., 761 F. Supp. 3d 481, 491-92 (E.D.N.Y. 2024) (holding that supplemental jurisdiction extends to an NYLL claim when the plaintiff also brought an FLSA claim “seek[ing] to recover for the same violation”); Niemiec v. Ann Bendick Realty, No. 04-CV-897 (ENV) (KAM), 2007 WL 5157027, at *13 (E.D.N.Y. Apr. 23, 2007) (“courts within the Second Circuit routinely exercise supplemental jurisdiction over state law wage claims in conjunction with claims under the FLSA”).

Similarly, Plaintiffs’ fifth cause of action related to frequency of pay is sufficiently related to the facts underlying the FLSA claims—Plaintiffs’ compensation during their employment with Defendants—to warrant the exercise of the Court's supplemental jurisdiction. See, e.g., Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011) (“Here, the NYLL and FLSA actions clearly derive from such a common nucleus of operative facts since they arise out of the same compensation policies and practices of Park Avenue.”) (citing Treglia v. Town of Manlius, 313 F.3d 713, 723 (2d Cir. 2002)); Reyes v. Crystal Window & Door Sys., Ltd., No. 23-CV-2578 (RPK) (JRC), 2024 WL 4028308, at *2 (E.D.N.Y. Sept. 3, 2024) (finding that the court may exercise supplemental jurisdiction over plaintiffs’ pay frequency claims because the claim arises from “same nucleus of operative fact as their FLSA overtime claim[.]”); Levy v. Endeavor Air Inc., 638 F. Supp. 3d 324, 328-31 (E.D.N.Y. 2022) (holding that the court had supplemental jurisdiction over plaintiff's NYLL § 191 claim); Lundy, 711 F.3d at 118 (holding the dismissal with prejudice of an NYLL claim without a direct FLSA equivalent, based on the district court's declining to exercise supplemental jurisdiction over the state law claim, was an abuse of discretion).

I. Class Action Allegations

In their Complaint, Plaintiffs allege that there are “numerous similarly situated current and former employees of Defendants who have been denied overtime pay and proper minimum wage pay in violation of FLSA and NYLL, who would benefit from the issuance of a Court-supervised notice of the present lawsuit and the opportunity to join the present case.” Dkt. No. 1 ¶ 61.⁸ At this stage, Plaintiffs have not sought conditional certification from the Court to try and identify any other similarly situated individuals that could potentially join the action.

Defendants do not explicitly seek dismissal of the collective action allegations and instead seek dismissal of Plaintiffs’ entire case. See Dkt. No. 48-4 at 8. While Defendants do not argue that the claims have been abandoned by Plaintiffs, because Defendants have moved for summary judgment on the entire cause of action brought by Plaintiffs, the collective action claims are appropriately decided by the court at summary judgment. Id.

In their opposition to Defendants’ motion, Plaintiffs make general statements about the validity of class claims in the FLSA case. Dkt. No. 48-8 at 19-20. The Second Circuit has stated that “a partial response arguing that summary judgment should be denied as to some claims while not mentioning others may be deemed an abandonment of the unmentioned claims.” Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d Cir. 2014). While Plaintiffs do bring up the collective action claims in their memorandum of law, “[w]here abandonment by a counseled party is not explicit but such an inference may be fairly drawn from the papers and circumstances viewed as a whole, district courts may conclude that abandonment was intended.” Id. at 196; Dkt. No. 48-8 at 19-20. Plaintiffs’ failure to properly brief the issue of the class claims coupled with their lack of efforts to seek either certification or discovery on the collective action claims under the FLSA allows the Court to infer that the collective action claims have been effectively abandoned. See Alvarado v. GC Dealer Servs. Inc., 511 F. Supp. 3d 321, 353–54 (E.D.N.Y. 2021) (“Accordingly, generally [ ] a partial [summary judgment] response reflects a decision by a party's attorney to pursue some claims or defenses and to abandon others, and a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned.”) (quoting Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016)).

As an initial matter, the failure to move for class certification during the pendency of a case can be evidence that the class claims have been abandoned. See Sanchez v. Turner, No. 00-CIV-1674 (AGS), 2002 WL 1343754, at *3 (S.D.N.Y. June 19, 2002) (“because plaintiffs provide no justification for their failure to move for class certification during the more than two years that this action has been pending, the Court finds that plaintiffs have abandoned their class claims”); Lomotey v. Connecticut, Dep't of Transp., No. 09-CV-2143 (VLB), 2012 WL 642744, at *1 (D. Conn. Feb. 28, 2012) (finding that plaintiff's failure to move for class certification during the two years the case was pending was evidence that the class claims had been abandoned); see also Amador v. 109-19 Food Corp., No. 21-CV-4633 (EK) (VMS), 2025 WL 1032031, at *9 (E.D.N.Y. Mar. 14, 2025), report and recommendation adopted, 2025 WL 1031133 (E.D.N.Y. Apr. 7, 2025) (finding that plaintiffs have abandoned their class and collective action claims when moving for default judgment because “their only mention of a putative FLSA collective action or NYLL class comes in [p]laintiffs’ description of the procedural history of this action, not in their argument.”).

Because Plaintiffs have failed to seek certification in the more than two years since this case was filed, the Court finds that the class claims have been abandoned. See D.J. by Comfort v. Corning-Painted Post Area Sch. Dist., 722 F. Supp. 3d 148, 166 (W.D.N.Y. 2024) (finding that plaintiff simply clarifying the nature of their cause of action in their brief in opposition to summary judgment rather than providing a substantive legal argument was grounds for a finding the claim abandoned). Plaintiffs have failed to show any efforts to move forward with the collective action claims in this suit, nor did they indicate in their memorandum of law that they will make any future efforts toward pursuing the collective action or that they have a reasonable legal basis for maintaining their collective action claims. Therefore, the undersigned respectfully recommends a finding that Plaintiffs have abandoned their collective action claims and that such claims be dismissed.

IV. Conclusion

Accordingly, for the foregoing reasons, the undersigned respectfully recommends that Defendants’ motion for summary judgment be granted in part and denied in part.

A copy of this Report and Recommendation is being electronically served on counsel. Any objections to this Report and Recommendation must be filed within 14 days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge Vitaliano. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky v. United States Dep't of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. 2023); see also Thomas v. Arn, 474 U.S. 140 (1985).

SO ORDERED.

FOOTNOTES

1.   As noted in Su v. Top Notch Home Designs Corp., No. 20-CV-5087 (GRB) (JMW), 2023 WL 8878553, at *3 (E.D.N.Y. Dec. 22, 2023),Under Local Rule 56.1, a party moving for summary judgment must submit a “separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Rule 56.1(a). The opposing party must submit a statement responding to each numbered paragraph, and can include additional paragraphs “to which it is contended that there exists a genuine issue to be tried.” Local Rule 56.1(b). Statements by each party “must be followed by citation to evidence which would be admissible” under Fed. R. Civ. P. 56(c). Local Rules 56.1(d). “Where ․ the record does not support the assertions in a 56.1 statement, those assertions should be disregarded, and the record viewed independently” because “a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).“A party may not rest on a mere denial without citing supporting admissible evidence.” Ward v. Nassau Cnty., No. 15-CV-4309 (GRB) (LGD), 2023 WL 5417329, at *1 (E.D.N.Y. Aug. 22, 2023) (“Merely denying certain statements in the moving party's statement of undisputed material facts without stating the factual basis for such denial and without disclosing where in the record is the evidence relied upon in making such denial does not constitute a ‘separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried’—as is required to controvert the moving party's statement of undisputed material facts.”) (citing Covelli v. Nat'l Fuel Gas Distrib. Corp., No. 99-CV-0500, 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001), aff'd, 49 F. App'x 356 (2d Cir. 2002). “Where [ ] a party opposing summary judgment fails to properly controvert a movant's statement of material fact, such statement will be deemed admitted for the purposes of the motion.” Cemetery Workers Supplemental Pension Fund by Alladeen v. Lutheran All Faiths Cemetery, No. 19-CV-6897 (RPK) (RML), 2021 WL 7908022, at *1 (E.D.N.Y. Sept. 9, 2021) (citation and quotation marks omitted).

2.   Page citations are to the ECF-stamped pages.

3.   Plaintiffs originally alleged in the Complaint that they were paid regularly on a bi-weekly basis (Dkt. No. 1 ¶¶ 31, 39, 47), but in their later testimony modified this claim to the schedule described here. Ramirez also originally claimed to have not been paid for his final four weeks of work in the Complaint (id. ¶ 48), but contradicted this in his deposition (see Dkt. No. 48-7 at 105-106) and did not reiterate it in his affidavit. See id. at 122-24.

4.   For example, during Defendant Wlodkowski's deposition, documents evidencing rates of pay for all three Plaintiffs is discussed as having been identified by Plaintiffs’ counsel and marked as an exhibit. See Dkt. No. 48-3 at 148 (“So the document I showed you today Exhibit ‘1’ and Exhibit ‘2’, Exhibit ‘1’ is the payroll register seems like to me and Exhibit ‘2’ is the rate of pay for all three of those Plaintiffs that I just showed you.”).

5.   During Garcia's deposition, Defendants objected to the form of a further question about the frequency of these interruptions as “leading,” and have argued for disposing of the entire issue on that basis. See Dkt. Nos. 48-7 at 49, 48-9 at 8 n.1, 48-10 at 7. Since Defendants did not object at the time to Plaintiffs’ other testimony concerning interrupted meal breaks, even sustaining the objection and striking the particular statement that Defendants objected to, Defendants’ subsequent objections to the line of questioning as a whole are not timely. See, e.g., In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804, 827 (2d Cir. 1994) (“By failing to object when the statement was made, the objection was waived.”) (citing Fed. R. Evid. 103(a)(1)), abrogated on other grounds by Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996)).

6.   Although statutes or amendments are generally presumed not to apply retroactively, there is a concurrent principle that courts must apply the law as it exists at the time of the decision. See U.S. v. Alcan Aluminum Corp., 990 F.2d 711, 724 (2d Cir. 1993) (“There is a strong presumption against the retrospective application of a statute․ Yet, ․ a court should apply law existing at the time of its decision unless to do so is contrary to the plain meaning of a statute or would cause manifest injustice.”). “When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.” Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994). Courts additionally defer to “clear expression[s] of legislative intent as to whether [the act in question] applies to cases arising before the [a]ct's passage.” Id. at 244; see also Chan v. Gantner, 464 F.3d 289, 293 (2d Cir. 2006) (“[S]tatutes may and should be retroactively applied when the statute at issue clearly indicates that it is intended to be retroactive”). Given the clear legislative language that the Amendment “shall apply to causes of action pending” at the time of its passage, and the fact that it only clarifies the extent of available relief, the Court finds that the amended NYLL § 198(a-1) applies in this case.

7.   The NYLL lacks this requirement. Gangadharan v. GNS Goods & Servs., No. 18-CV-7342 (KAM) (MMH), 2022 WL 824135, at *11 (E.D.N.Y. Mar. 18, 2022).

8.   Under the FLSA, Plaintiffs may bring a “collective action,” which allows employees to sue on their own behalf as well as on the behalf of other employees that are “similarly situated.” Myers, 624 F.3d at 542 (quoting 29 U.S.C. § 216(b) (2006)). To join a collective action, employees must affirmatively “opt in” to be part of the lawsuit and bound by the judgment. Id. To pursue a collective action, the first step is to seek “conditional certification” from the court. Wilk v. Quality Installations of NY, Inc., 724 F. Supp. 3d 76, 84 (E.D.N.Y. 2024). This first stage involves “an initial determination to send notice to potential opt-in plaintiffs who may be similarly situated to the named plaintiffs with respect to whether a FLSA violation has occurred.” Id. (quoting Myers, 624 F.3d. at 555). This initial certification stage “generally takes place before any significant discovery”. Id. at 84 (quoting Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95, 99 (E.D.N.Y. 2014)). For conditional certification to granted, plaintiffs must meet a “minimal burden” of showing that the potential opt-in plaintiffs suffered injuries from a common policy. Id.

JOSEPH A. MARUTOLLO United States Magistrate Judge