Flores v. 201 West 103 Corp.

256 F. Supp. 3d 433, 2017 WL 2589382, 2017 U.S. Dist. LEXIS 91654
CourtDistrict Court, S.D. New York
DecidedJune 14, 2017
Docket16 Civ. 2233 (KPF)
StatusPublished
Cited by26 cases

This text of 256 F. Supp. 3d 433 (Flores v. 201 West 103 Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flores v. 201 West 103 Corp., 256 F. Supp. 3d 433, 2017 WL 2589382, 2017 U.S. Dist. LEXIS 91654 (S.D.N.Y. 2017).

Opinion

OPINION AND ORDER

KATHERINE POLK FAILLA, United States District Judge

Plaintiffs Nicomedes Flores and Crisofo-ro Campos, on behalf of themselves and [435]*435others- similarly situated, brought this class and collective action against corporate Defendants 201 West 103 Corp., doing business as Buchetta; laño Corp., doing business as Acqua; 886 Amsterdam Avenue Corp., doing business as Arco Café; 994 Columbus Avenue Corp., doing business as Isola; 3143 Broadway Corp,, doing business as Bettolona; 1600 Amsterdam Avenue Corp., doing business as Coccola; 412 Amsterdam Corp., doing business as Bettola (together, the “Corporate Defendants”); and individual Defendants Se-bastiano Cappitta, Daniele Fiori, and Francesca Fiori (together, the “Individual Defendants”) pursuant to the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201-219’ (the “FLSA”), and the New York Labor Law, Consol. Laws 1909, ch. 31 (the “NYLL”). Under the FLSA, Plaintiffs seek to recover from Defendants unpaid wages, unpaid overtime compensation, liquidated damages, and attorney’s fees and costs. Under the NYLL, Plaintiffs seek to recover unpaid wages, unpaid overtime compensation, unpaid “spread of hours” premiums, statutory penalties, .liquidated damages, and attorney’s fees and costs.

Corporate Defendants Iano Corp., doing business as Acqua; 886 Amsterdam Avenue Corp., doing business as Arco Café; 994 Columbus Avenue Corp., doing business as Isola; 3143 Broadway Corp., doing business as Bettolona; 1600 Amsterdam Avenue Corp., doing business as Coccola; and 412 Amsterdam Corp,, doing business as Bettola (together, the “Moving Corporate Defendants”); and Individual Defendants Daniele Fiori and Francesca Fiori (together, the “Moving Individual Defendants,” and together with the Moving Corporate Defendants, “the Moving Defendants”) have moved to dismiss Plaintiffs’ Amended Complaint (the “Complaint”) under Federal Rule of Civil Procedure 12(b)(6) and to strike Telesforo Reyes Gal-vez’s declaration in support of Plaintiffs’ opposition to Defendants’ motion (the “Galvez Declaration”). For the reasons that follow, the Moving Defendants’ motion to dismiss is granted in part and denied in part. Defendants’ motion to strike is denied as moot.

BACKGROUND1

A. Factual Background

1. The Alleged Restaurant Enterprise

Plaintiffs allege that “Defendants operate a restaurant enterprise” comprised of seven restaurants by and through the Corporate Defendants, which restaurants are identified in the caption of this case: Bu-chetta, which formerly did business as Buca; Bettola; Acqua; Arco Café; Isola; Bettolona; and Coccola (together, the “Restaurants”). (Compl. ¶7). Specifically, Plaintiffs allege that

[Tjhe Restaurants are engaged in related activities, share common ownership and have a common business purpose. The Restaurants are commonly owned [436]*436by the Individual Defendant [Cappitta], The Restaurants serve similar menu items and are all categorized as Italian and Brick Oven Pizza restaurants. The Restaurants are advertised and marketed jointly on the Internet!.] The “Betto-la” and “Acqua” restaurants are also advertised jointly on the webite www. sebastianoitaliano.com. In addition, supplies and employees are interchangeable between the Restaurants.

(Id. (citation omitted)).

Individual Defendant Cappitta is identified as “an equity interest holder and chief executive officer of all Corporate Defendants.” (Compl. ¶ 9). Individual Defendants Daniele and Francesca Fiori are identified as “senior executive officers” of Corporate Defendant 886 Amsterdam Avenue, doing business as Arco Café. (Id. at ¶ 10). The Individual Defendants exercised control over Plaintiffs and the putative Class members, insofar as they had and “exercised the power and authority to (i) fire and hire, (ii) determine rate and method of pay, (iii) determine work schedules and (iv) otherwise affect the quality of [their] employment.” (Id. at ¶¶ 9, 10). With regard to Cappitta, Plaintiffs allege that

[i] employees could complain to [Cappit-ta] regarding any of the terms of their employment, and [he] would have the authority to effect any changes to the quality and terms of employees’ employment. [ii] [Cappitta] regularly visited “Buchetta” and directly reprimanded any employee who did not perform his duties correctly, [iii] [Cappitta] ensured that employees effectively serve customers and that the business is operating efficiently and profitably, [iv] [Cappitta] exercised functional control over the business and financial operations of all Corporate Defendants.

(Id. at ¶ 9). With regard to Daniele and Francesca Fiori, Plaintiffs allege they “exercised functional control over the business and financial operations of’ Corporate Defendant 886 Amsterdam Avenue, doing business as Arco Café. (Id. at ¶ 10). Dan-iele Fiori was also a manager at Buchetta restaurant, where he directly supervised Plaintiffs. (Id.).

2. Plaintiffs’ Employment and the Claims Arising Therefrom

Plaintiff Flores was employed by Defendants as a delivery person for Buchetta restaurant at 201 West 103rd Street in New York City from on or about March 5, 2013, through March 15, 2016. (Compl. ¶ 24). Throughout this time, he “was regularly required to transfer produce, ingredients and supplies among Defendants’ other Upper West Side restaurants.” (Id. at ¶ 25).

Flores worked for 42 hours per week and was required to work without a lunch break. (Compl. ¶ 26). He was paid $20 per workday, regardless of the number of hours that he worked each day, which amounted to an hourly wage below New York’s “tip credit” minimum wage. (Id. at ¶ 27). His “tips averaged $160 per workweek, and including his daily fixed salary, at all times, he received a straight time hourly rate of approximately $6.67 per hour, which is below the Federal and State minimum wage.” (Id.). What is more, Flores

was required to spend half of all his working hours engaged in non-tipped activities, including transferring ingredients and supplies between Defendants’ restaurant locations, cleaning the bathroom, taking orders and answering the telephone, preparing bags and boxes for take-out and delivery orders, receiving and stocking incoming deliveries for the restaurant, disposing the garbage[,] and folding menus.

(Id. at ¶ 36).

Plaintiff -Campos was hired by Defendants as a dishwasher for Buchetta restau[437]*437rant at 201 West 103rd Street in New York City in or around December 2012. (Compl. ¶ 28). In or around May 2013, he was promoted to work as a food preparer, which role he maintained through approximately March 5, 2016. (Id.). Throughout this time, he “was regularly required to transfer produce, ingredients and supplies among Defendants’ other Upper West Side restaurants.” (Id. at ¶ 29).

Before his promotion in May 2013, Campos worked 58 hours per week. (Compl. ¶ 30). For this work, he was paid $390 per week regardless of the number of hours that he worked each day, which amounted to a wage below the Federal and State minimum wage. (Id. at ¶ 31).

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Bluebook (online)
256 F. Supp. 3d 433, 2017 WL 2589382, 2017 U.S. Dist. LEXIS 91654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-v-201-west-103-corp-nysd-2017.