Lindow v. Metropolitan Realty Group, LLC

UNITED STATES DISTRICT COURT CFLILEERDK

EASTERN DISTRICT OF NEW YORK

1:04 pm, Jun 28, 2024

----------------------------------------------------------------X

PRINCE LINDOW, U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Plaintiff, LONG ISLAND OFFICE

-against- MEMORANDUM OF

DECISION AND ORDER

METROPOLITAN REALTY GROUP, LLC, 19-CV-2021 (GRB)(RML)

et ano.,

Defendants.

----------------------------------------------------------------X

GARY R. BROWN, United States District Judge:

Having resolved the principal issue in this Fair Labor Standards Action (“FLSA”) action,

to wit: whether plaintiff, a building superintendent, was entitled to round-the-clock compensation

for being on-call for emergency situations that might arise outside of his normal workday, see

Lindow v. Metro. Realty Grp., LLC, No. CV 19-2021 (GRB)(RML), 2023 WL 4827252 (E.D.N.Y.

July 27, 2023) (“Lindow I”), defendants now move for summary judgment concerning the

remaining issues in the case. Familiarity with Lindow I, incorporated herein by reference, is

assumed. For the reasons that follow, defendants’ motion is granted in part and denied in part.

This motion for summary judgment is decided under the oft-repeated and well-understood

standard for review for these matters, as discussed in Bartels v. Inc. Vill. of Lloyd Harbor, 97 F.

Supp. 3d 198, 211–12 (E.D.N.Y. 2015), aff’d, 643 F. App’x 54 (2d Cir. 2016), which discussion

is incorporated by reference herein. In sum, the question before the Court is whether, based upon

the undisputed or improperly disputed facts, the defendant is entitled to summary judgment. On

this motion, few facts are in dispute: of the 233 paragraphs in defendants’ Rule 56.1 statement,

plaintiff admits all but 22 of them.

As to the remainder, questions arise as to whether plaintiff properly disputed these

contentions. Plainly, counsel was aware of the requisites here, as the Court set forth the standards

in Lindow I:

[T]o oppose a motion for summary judgment, a party is required by the Court’s

Local Rules to submit a Statement of Material Facts upon which it contends there

“exists a genuine issue to be tried” and “each statement controverting any statement

of material fact ... must be followed by citation to evidence which would be

admissible, set forth as required by Fed. R. Civ. P. 56(c).” L. Civ. R. 56(d); Tuccio

v. FJC Sec. Servs., Inc., No. CV 12-5506(JFB)(GRB), 2014 WL 4438084, at *5

(E.D.N.Y. Aug. 18, 2014), adopted by, 2014 WL 4438469 (E.D.N.Y. Sept. 8,

2014), appeal dismissed, (2d Cir. Mar. 18, 2015). A party may not rest on a mere

denial without citing supporting admissible evidence. “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.” Covelli v. Nat’l Fuel Gas Distrib.

Corp., 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001) (citing Holtz v.

Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)), aff’d, Covelli v. Nat’l Gas

Distrib. Corp., 49 F. App’x 356 (2d Cir. 2002).

Upon the failure to properly controvert a movant’s statement of material fact, such

statement “will be deemed admitted for the purposes of the motion.” L. Civ. R.

56.1(c); D.N. ex rel. D.N. v. Bd. of Educ. of Ctr. Moriches Union Free Sch. Dist.,

No. CV 14-99(GRB), 2015 WL 5822226, at *3 n.3 (E.D.N.Y. Sept. 28, 2015); see

also Edmonds v. Seavey, No. 08 CIV. 5646 (HB), 2009 WL 2949757, at *1 n.2

(S.D.N.Y. Sept. 15, 2009), aff’d, 379 F. App’x 62 (2d Cir. 2010); AFL Fresh &

Frozen Fruits & Vegetables, Inc. v. De-Mar Food Servs. Inc., No. 06 Civ.

2142(GEL), 2007 WL 4302514, at *5 (S.D.N.Y. Dec. 7, 2007). Again, district

courts have “broad discretion to determine whether to overlook a party’s failure to

comply with local court rules,” Holtz, 258 F.3d at 73, and the Court may not rely

solely upon the failure to controvert assertions made in a Rule 56.1 statement if

those assertions are not supported in the record. See Giannullo, 322 F.3d at 140

(“[E]ven though plaintiff’s Rule 56.1 counter-statement failed to specifically

controvert these assertions, the unsupported assertions must nonetheless be

disregarded and the record independently reviewed.”); but see Jackson v. Fed.

Express, 766 F.3d 189, 196 (2d Cir. 2014) (distinguishing Giannullo and upholding

default where “each statement of proposed undisputed facts was supported by a

citation to the record sufficient to prove each such fact”).

Lindow I, 2023 WL 4827252, at *1 (quoting Davis v. Town of Hempstead, No. 14-CV-903

(JMA)(GRB), 2019 WL 235644, at *3 (E.D.N.Y. Jan. 16, 2019)). In several instances, plaintiff

flatly fails to comply with these requisites. See, e.g., Docket Entry (“DE”) 58 ¶¶ 146–47

(attempting to categorize assertions as “legal argument”); ¶ 206 (counsel “leave[s] it to the Court

to reach their [sic] determination as how to best interpret Defendant’s time records”); ¶¶ 219, 233

(denial based on spreadsheet prepared by counsel without clear evidentiary support). All of

plaintiff’s remaining denials are predicated entirely upon a post-discovery declaration created by

plaintiff. Id. ¶¶ 55-56, 60, 62, 67-69, 128, 171, 182–83, 222, 229.

On this motion, plaintiff submits a post-discovery declaration designed to raise or

supplement the following purported issues of material fact to defeat summary judgment: (1)

plaintiff was required to perform unpaid work during his lunch breaks; (2) defendants’ failure to

honor an agreement to provide him with an apartment; and (3) wage claims arising from allegations

that defendants’ time clock did not work properly. See generally DE 57. With respect to the meal

break claims, though, this declaration runs contrary to the sworn testimony provided by plaintiff

during his deposition. For example, in the declaration he avers that “it would not be unusual for

me to have to leave in the middle of my lunch break to perform job duties on behalf of Defendants.”

Id. ¶ 7 (emphasis added). However, at his deposition, he testified that performing such work was

discretionary. DE 56 at 135 (“I was not forced but asked.”). In his declaration, plaintiff also avers

that his “meal breaks were frequently interrupted with emails,” and got frequent emails from

defendants after hours, DE 57 ¶¶ 5, 11, but had testified at deposition that he “never” used email

to communicate with supervisors or other company employees. DE 56 at 115. In other instances,

plaintiff raises disputes that are simply immaterial. See, e.g., DE 57 ¶ 19 (attempting to controvert

defendants’ assertion that plaintiff’s family occupied a company-owned apartment by stating

“[o]nly my niece stayed in my downstairs basement apartment”).

This raises the specter of the sham affidavit doctrine. As the Second Circuit has held:

[I]t is well established in this 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. If a

party who has been examined at length on deposition could raise an issue of fact

simply by submitting an affidavit contradicting his own prior testimony, this would

greatly diminish the utility of summary judgment as a procedure for screening out

sham issues of fact. Thus, factual issues created solely by an affidavit crafted to

oppose a summary judgment motion are not “genuine” issues for trial.

Kennedy v. City of New York, 570 F. App’x 83, 84 (2d Cir. 2014) (quoting Hayes v. N.Y.C.

Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996)). Here, as to the primary issue plaintiff

seeks to create—that is, a purported requirement that he work during lunch breaks—the

averments of the declaration are fundamentally controverted by plaintiff’s deposition

testimony. Thus, as concerns the meal break work allegations, plaintiff has submitted a

sham declaration. Given that these allegations are supported by no other evidence in this

extensive record, defendants are entitled to summary judgment on this issue.

Plaintiff persists in a claim of an oral agreement by defendants to provide him with an

apartment incident to his position as a building superintendent. However, given that the parties

entered a written employment contract that did not so provide, this claim fails as “evidence of a

prior oral agreement that modifies the terms of the agreement is excluded by the parol evidence

rule.” Stamelman v. Fleishman-Hillard, Inc., No. 02 CIV. 8318 (SAS), 2003 WL 21782645, at *3

(S.D.N.Y. July 31, 2003). Plaintiff makes a half-hearted attempt to raise a “travel time” claim, yet

is unable to even provide an estimate about what period of time this would apply to. See DE 56 at

91-112. Further, counsel’s effort to raise an issue regarding the accuracy of plaintiff’s wage

statements proves misguided as plaintiff has failed to adequately controvert defendants’ contention

that he “was provided with accurate wage statements following each pay period.” DE 51-1 ¶ 233.

Thus, defendant is entitled to summary judgment as to these additional issues.

The sole remaining question, then, is whether plaintiff has a claim based on the alleged

malfunctioning of defendants’ timeclock. Particularly considering plaintiff’s vague and

inconsistent testimony, this claim remains dubious and potentially of negligible economic value.1

However, drawing inferences in the non-movant’s favor, the Court finds that there is a sufficient

question that summary judgment must be denied. See DE 51-1 ¶ 56 (defendants acknowledge

periods of “gaps” in clock-in and clock-out times). Thus, defendants’ motion is granted in all

respects except as to the issue of a wage deficiencies arising from alleged malfunctions with the

subject timeclock.

Counsel should be prepared to proceed to trial on short notice.

SO ORDERED.

Dated: June 28, 2024

Central Islip, New York

/s/ Gary R. Brown

GARY R. BROWN

UNITED STATES DISTRICT JUDGE

1 Notably, on this motion, plaintiff concedes that the timeclock functioned accurately for other

employees, just not for him. DE 51-1 ¶¶ 156, 159, 163-65, 168–69. At his deposition, plaintiff

posited that defendant prepared “artificial” records in connection with his pay. DE 56 at 148.