Rosario v. Prasad Cosmetic Surgery

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KYLENE ROSARIO,

Plaintiff,

MEMORANDUM & ORDER

– against – 21-cv-02944 (NCM) (AYS)

PRASAD COSMETIC SURGERY, and

AMIYA PRASAD, M.D.,

Defendants.

NATASHA C. MERLE, United States District Judge:

Plaintiff Kylene Rosario brings this action against Prasad Cosmetic Surgery

(“Prasad Cosmetic”) and Amiya Prasad for wage related claims under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 206(a), 207(a)(1), and New York Labor Law

(“NYLL”), NYLL Article 19 § 650 et seq. Defendants also raise a counterclaim against

plaintiff for breach of fiduciary duty. The parties bring cross-motions for summary

judgment, on which the Court heard oral argument.1 For the reasons stated below,

plaintiff’s motion is DENIED and defendants’ motion is GRANTED in part, DENIED

in part.

1 Hereinafter, the Court refers to Plaintiff’s Memorandum in Support of Summary

Judgment, ECF No. 67, as “Pl. Mot.”; Defendants’ Opposition, ECF No. 68, as “Defs.

Opp’n”; Plaintiff’s Reply in Support, ECF No. 69, as “Pl. Reply”; Defendants’

Memorandum in Support of Summary Judgment, ECF No. 71, as “Defs. Mot.”; Plaintiff’s

Opposition, ECF No. 72, as “Pl. Opp’n”; Defendants’ Reply in Support, ECF No. 73, as

“Defs. Reply”; Plaintiff’s 56.1 Statement, ECF No. 67-1, as “Pl. 56.1”; Defendants’ 56.1

Counter-statement, ECF No. 68-1, as “Defs. Counter 56.1”; Defendants’ 56.1 Statement,

ECF No. 71-1, as “Defs. 56.1”; and Plaintiff’s 56.1 Counter-statement, ECF No. 72-1, as “Pl.

Counter 56.1.”

BACKGROUND2

Plaintiff began working for defendants in 2009, engaging in a range of

administrative duties for Prasad Cosmetic until her termination in April 2021. See Pl.

Counter 56.1 ¶¶ 7, 23, 27. Prasad Cosmetic offers cosmetic surgery and treatments from

its offices in Garden City, Manhattan, and Vienna, Virginia. Defs. 56.1. ¶ 1. Amiya Prasad

is a board certified cosmetic surgeon and the President and Medical Director of Prasad

Cosmetic. Defs. 56.1 ¶¶ 4, 5.

While the parties dispute plaintiff’s title and whether she was the employee

principally responsible for her duties, they agree that her duties included office

management, accounts payable, and employee issues including staffing schedules and

vacation requests. Pl. Counter 56.1 ¶¶ 7, 23. During her employment, plaintiff’s duties

also included purchasing certain office supplies with company credit cards from various

retailers, such as Staples, Best Buy, and Walmart. Pl. Counter 56.1 ¶¶ 23, 33. From 2009

to October 2016, plaintiff was employed at another company, Presidio Networked

Solutions, Inc. (“Presidio”), in addition to Prasad Cosmetic. See Pl. Counter 56.1 ¶¶ 11, 12,

15, 16.

2 All facts are undisputed unless otherwise indicated. The Court rejects plaintiff’s

contention that the Court must preclude any facts supported by the Declaration of Sudha

Prasad. See Pl. Opp’n 7. Although plaintiff asserts that there “was a deliberate attempt to

circumvent the discovery process” by not allowing plaintiff to depose Sudha Prasad, this

argument is unavailing. See Pl. Opp’n 7. To support this argument, plaintiff submitted a

January 2023 email from counsel requesting dates for Sudha Prasad’s deposition. Pl.

Opp’n, Ex. I. However, plaintiff did not provide defense counsel’s response, if any, to this

email, nor allege that counsel made any subsequent requests to schedule the deposition.

See Pl. Opp’n, Ex. I. Further, in reviewing the docket, the Court observes no attempts to

compel Prasad’s deposition after the January 2023 email. Rather, discovery in this action

closed uneventfully on November 20, 2023. See ECF Order dated Oct. 19, 2023. Thus, the

record indicates a lack of pursuit by plaintiff rather than deliberate interference by

defendants.

During the period for which plaintiff claims unpaid overtime, 2015 to 2021,

plaintiff received payment at her hourly rate for all hours worked at Prasad Cosmetic. Pl.

Counter 56.1 ¶¶ 29, 30. During this period, plaintiff was paid in cash. Pl. 56.1 ¶¶ 37, 67.

Plaintiff was terminated from Prasad Cosmetic in April 2021. Pl. Counter 56.1 ¶ 27.

Defendants claim plaintiff was terminated for “stealing from the company,” while plaintiff

disputes the allegations of theft and asserts that defendants did not provide a justification

for her termination. Pl. Counter 56.1 ¶ 27.

STANDARD OF REVIEW

Summary judgment is appropriate when “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). “A fact is material if it might affect the outcome of the suit

under the governing law.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 13

F.4th 247, 259 (2d Cir. 2021).3 Facts are in genuine dispute when “the jury could

reasonably find for” the non-moving party based on the evidence in the record. Borley v.

United States, 22 F.4th 75, 78 (2d Cir. 2021).

The movant “bears the initial burden of showing that there is no genuine dispute

as to a material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). Where the moving

party meets their burden, the non-moving party must provide sufficient evidence

establishing a genuine issue of material fact beyond “[t]he mere existence of a scintilla of

evidence.” Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012). The court need only

consider admissible evidence, and is not obligated to conduct an independent review of

3 Throughout this opinion, the Court omits all internal quotation marks, footnotes,

and citations, and adopts all alterations, unless otherwise indicated.

the record to identify a factual dispute. Looney v. Macy’s Inc., 588 F. Supp. 3d 328, 340

(E.D.N.Y. 2021).

When both parties submit a motion for summary judgment, “the court evaluates

each party’s motion on its own merits, and all reasonable inferences are drawn against

the party whose motion is under consideration.” Roberts v. Genting New York LLC,

68 F.4th 81, 88 (2d Cir. 2023). A district court’s role is “not to resolve disputed issues of

fact but to assess whether there are any factual issues to be tried.” McKinney v. City of

Middletown, 49 F.4th 730, 738 (2d Cir. 2022). Furthermore, “a district court may not

make credibility determinations, or weigh evidence” on summary judgment. Reynolds v.

Quiros, 990 F.3d 286, 294 (2d Cir. 2021). Thus, a district court denies summary judgment

where there are disputed facts “that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either party.” Davis-Garett v. Urb.

Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986)).

DISCUSSION

I. Wage Notice and Statement Claims

Defendants argue that plaintiff’s fourth and fifth causes of action for wage notice

and statement violations pursuant to NYLL Sections 195(1) and 195(3) (together, “NYLL

195”) should be dismissed for lack of standing. Defs. Mot. 21–22. As plaintiff has failed to

show that defendants’ alleged wage notice and statement violations have caused her

concrete harm, these claims are dismissed.

NYLL 195 requires that employers provide (i) a wage notice upon the hiring of an

employee and (ii) regular wage statements throughout an individual’s employment. See

N.Y. Labor. Law § 195(1), (3). When raised in federal court, claims for violation of these

statutory provisions are subject to Article III standing requirements. TransUnion LLC v.

Ramirez, 594 U.S. 413, 426 (2021). To establish standing, a plaintiff must demonstrate

that (1) she has “suffered an injury in fact that is concrete, particularized, and actual or

imminent;” (2) “the injury was likely caused by the defendant[s];” and (3) judicial relief

would likely redress plaintiff’s injury. Id. at 423.

In Guthrie v. Rainbow Fencing Inc., the Second Circuit clarified the necessary

showing for NYLL 195 claims to satisfy the Article III standing requirement of a concrete

injury in fact. 113 F.4th 300 (2d Cir. 2024). The Guthrie court held that “a plaintiff must

show some causal connection between the lack of accurate notices and the downstream

harm” to demonstrate concrete injury. Id. at 308. Further, plaintiffs cannot “assume”

standing “or rely on speculation and conjecture” in order to make this showing. Id. at 309.

Allegations of “potential harms that could result” are insufficient. Id. at 310 (emphasis in

original).

There are a range of “possible injuries” that can result from violations of NYLL 195.

Guthrie, 113 F.4th at 311. These injuries include the inability to apply for public benefits,

bank loans, and credit cards due to lack of documentation, to seek redress based on a

determination that “they are being robbed by the employer,” or to ensure that the correct

tax, insurance, and other deductions are made on an employee’s behalf. Id. at 310. A

plaintiff can demonstrate injury by showing they “would have avoided some actual harm

or obtained some actual benefit if accurate notices had been provided.” Id. at 308.

Further, courts have found sufficient injury to demonstrate standing for NYLL 195 claims

where plaintiffs “aver[red] that Defendants’ alleged failure to provide wage notices and

wage statements caused [them] to endure uncertainty regarding [their] wages and

prevented [them] from taking action to correct Defendants’ wage and hour violations.”

Rosas v. M and M LA Solucion Flat Fixed Inc., No. 23-cv-01212, 2024 WL 4131905, at

*12 (E.D.N.Y. Sept. 10, 2024), report and recommendation adopted, ECF Order (Sept.

30, 2024). Injury has also been found where a plaintiff alleged that defendants “were able

to hide their violations of wage and hour laws and take advantage of Plaintiff’s relative

lack of sophistication by failing to provide her with wage information.” Castillo v. Hollis

Delicatessen Corp., No. 22-cv-05476, 2024 WL 4107258, at *1 n.1 (E.D.N.Y. Sept. 6,

2024) (adopting report and recommendation). See also Lock v. Costco Wholesale Corp.,

No. 2:23-cv-07904, 2024 WL 4728594, at *6 (E.D.N.Y. Nov. 8, 2024) (finding plaintiffs

lacked standing where plaintiffs’ declarations demonstrated that they knew their weekly

hours exceeded forty per week); Blanco v. M&R Plaza Deli Inc., No. 23-cv-09408, 2024

WL 4859467, at *6 (E.D.N.Y. Oct. 29, 2024), report and recommendation adopted, 2024

WL 4855214 (E.D.N.Y. Nov. 21, 2024) (finding lack of standing where plaintiff did not

show that they would have “undertaken self-advocacy and plausibly would have avoided

some actual harm” had accurate notices or statements been provided). Moreover, courts

have recognized Guthrie’s effect at summary judgment, noting that “potential plaintiffs

would likely need to submit sufficient affidavits or provide credible testimony that the

failure to provide wage statements and wage notices caused downstream harm because

the lack of such statements led to lost wages.” Charles v. Pinnacle Too, LLC, No. 22-cv-

04232, 2024 WL 4491560, at *15 (S.D.N.Y. Oct. 15, 2024).

Here, the parties disagree as to the application of Guthrie. Defendants assert that

Guthrie requires “plaintiff [] to show that the failure to provide the notice and statement

actually caused the overtime harm,” which they allege plaintiff has failed to do. Oral Arg.

Tr. 7:12–16 (draft on file with court). In contrast, plaintiff argues that Guthrie applies to

cases where plaintiffs raise statutory notice violations as the “sole damages” without also

raising wage claims or otherwise identifying injuries flowing from any statutory violation,

which is not the case here. See Oral Arg. Tr. 6:9–21. Plaintiff argues that, in Guthrie, the

claim for unpaid wages was decided prior to dismissal of the wage notice claims, and then

“because the wage claims were resolved and the only thing was the notice” claims, the

court “declined jurisdiction” over the notice claims. Oral Arg. Tr. 9:2–9. Plaintiff argues

that, in contrast to Guthrie, plaintiff’s claims for wage and notice violations and unpaid

overtime are “not two separate claims” because “[i]t all results from the same bad act;

therefore, there is harm and all these claims are as one.” Oral Arg. Tr. 5:11–13. Thus, the

parties differ on whether alleging overtime harm in addition to statutory wage and notice

violations is sufficient to support injury in fact, because they arise out of the same alleged

conduct. Defendants are correct—alleging overtime harm alone, without connecting it to

the wage statement and notice violations, is inadequate to establish the actual harm

necessary for Article III standing.

Contrary to plaintiff’s argument, the plaintiff in Guthrie moved the court for a

default judgment on all claims, and sought unpaid wages as well as statutory damages

arising from the employer’s failure to provide wage notices and statements. See Guthrie

v. Rainbow Fencing Inc., No. 21-cv-05929, 2023 WL 2206568, at *1 (E.D.N.Y. Feb. 24,

2023), aff’d, 113 F.4th 300 (2d Cir. 2024). In adopting the magistrate judge’s report and

recommendation on plaintiff’s motion for default judgment, the district court affirmed as

to plaintiff’s claims for unpaid minimum and overtime wages, and in the same order,

dismissed plaintiff’s NYLL wage notice and wage statement claims because plaintiff failed

to allege standing for those claims. Id. In so finding, the district court explained that “a

plaintiff must demonstrate standing for each claim he seeks to press and for each form of

relief that is sought.” Id. (quoting Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 439

(2017)); see also Guthrie v. Rainbow Fencing Inc., 113 F.4th 300, 304 (2d Cir. 2024). The

same is true here: as in Guthrie, plaintiff brings separate claims for wage statement

violations, wage notice violations, and unpaid overtime, and it is plaintiff’s burden to

establish standing for each of these claims.

While a “plaintiff need not . . . establish an injury that is greater than or different

from the loss of wages or overtime pay alleged in their lawsuit,” the plaintiff must show

“some causal connection between the” wage notice and statement violations “and the

alleged downstream harm.” Ramos v. Allied Concrete Indus. Inc., No. 2:23-cv-03366,

2024 WL 5168766, at *1 (E.D.N.Y. Dec. 19, 2024); see e.g., Roma v. David Carmili,

Physician, P.C., --- F. Supp. 3d ----, No. 23-cv-04072, 2024 WL 5152211, at *5 (E.D.N.Y.

Dec. 18, 2024) (finding plaintiff demonstrated standing by, among other things, alleging

that defendants’ failure to provide wage statements prevented her from “correcting issues

with deductions and discrepancies” in her pay).

Here, plaintiff provides no affidavits or testimony to support a causal connection

between the lack of wage notice or statements and her injury. Nor does the record support

a finding that plaintiff has demonstrated downstream harm connected to the notice and

statement violations. Plaintiff asserts that she kept records of her hours, which indicates

an awareness of her pay and the hours she worked per week. Pl. 56.1 ¶ 31. Additionally,

plaintiff was knowledgeable about wage payments—employee payroll was one of her

administrative duties at Prasad—and therefore was aware that she should have been paid

overtime when she worked over 40 hours in a given week. See Pl. Counter 56.1 ¶ 23

(disputing only that plaintiff was the employee “principally responsible” for employee

payroll, and disputing defendants’ reliance on Sudha Prasad’s affidavit); Pl. Dep. Tr.

138:16–23, ECF No. 71-8 (testifying that as of 2015 plaintiff was a Human Resources

professional who knew how overtime compensation worked). Plaintiff determined her

monthly pay and was authorized to pay some portion of that amount from the company

safe, additionally, plaintiff knew defendants were paying her “off the books.” See Defs.

Counter 56.1 ¶¶ 35, 36. Plaintiff also testified that she spoke about receiving overtime with

Sudha or Amiya Prasad on “maybe five” occasions during her employment at Prasad

Cosmetic. Pl. Dep. Tr. 142:8–17, ECF No. 71-8. In fact, plaintiff testified that defendants’

failure to pay her overtime “was a sticking point” that came up “a couple of times.” Pl.

Dep. Tr. 140:15–21, ECF No. 71-8.

Assuming arguendo that plaintiff did work over 40 hours per week in the relevant

period, plaintiff knew both that she worked over 40 hours per week and that she should

have been paid overtime. These undisputed facts indicate a level of knowledge

distinguishable from plaintiffs in other cases where an employer was able to “hide”

violations and therefore cause informational harm. See Castillo, 2024 WL 4107258, at *1

n.1. Accordingly, plaintiff has failed to show that it was the lack of wage statements or

notice that led to her underpayment—instead, plaintiff testified that defendants simply

refused to pay her overtime. Pl. Dep. Tr. 205:17–18, ECF No. 71-8 (“I was told that I was

not allowed to do overtime.”). Even viewing the record in the light most favorable to

plaintiff, plaintiff has failed to demonstrate that defendants’ failure to provide wage

statements or notice caused her to be unaware of whether she was working over 40 hours

a week without overtime compensation. Therefore, finding no evidence of a concrete

injury nor facts to support a causal connection between the statutory violations of NYLL

195 and the alleged injury of unpaid overtime, summary judgment is granted to

defendants as to these claims.

II. Overtime Compensation & Breach of Fiduciary Duty

The parties seek summary judgment on plaintiff’s overtime compensation claims

and defendants’ breach of fiduciary duty counterclaim. A motion for summary judgment

should be denied “[w]here there are genuine issues of material fact that may reasonably

be resolved in favor of either party.” Moll v. Telesector Res. Grp., Inc., 94 F.4th 218, 228

(2d Cir. 2024). “Mere conclusory allegations or denials” and “speculation or conjecture”

are insufficient to overcome a motion for summary judgment. Hicks v. Baines, 593 F.3d

159, 166 (2d Cir. 2010). Summary judgment is appropriate “only when . . . there can be

but one reasonable conclusion as to the verdict.” Moll, 94 F.4th at 228. That certainty is

absent here.

The Court highlights two areas of material factual issues that render summary

judgment inappropriate. The first is whether plaintiff worked in excess of 40 hours per

week. The second is whether and to what extent plaintiff engaged in misconduct regarding

a vendor promotion, misuse of defendants’ company credit cards, and a romantic affair

with a co-worker.

A. The Survelliance Videos

Before considering the parties’ arguments regarding summary judgment, the Court

first resolves plaintiff’s objection to the Court’s consideration of the surveillance footage

produced by defendants. That footage purports to show plaintiff’s comings and goings

from defendants’ office, as well as her alleged misconduct while at the office.

Plaintiff argues that the surveillance footage is not properly before the Court

because the videos “need to be established as business records kept as part of standard

business practice” pursuant to Rule 803(6) of the Federal Rules of Evidence. Pl. Opp’n 9–

10. In addition, plaintiff argues that defendants “deliberately viewed and saved [video]

footage that suited their nefarious purposes,” failing to save other footage that might have

supported plaintiff’s claims. Pl. Opp’n 11–12. Furthermore, plaintiff asserts that there are

significant reliability issues with the videos, including uncertainty as to how the footage

was acquired, saved, and produced. See Pl. Opp’n 10–12. At oral argument, plaintiff

further highlighted that defendants did not proffer evidence of time-keeping software,

which defendants did not use to track plaintiff’s hours. Oral Arg. Tr. 28:17–21.

In response, defendants correctly note that Federal Rule of Evidence 803 governs

exceptions to the rule against hearsay evidence. See Defs. Reply 10; Fed. R. Evid. 803. The

Rules define hearsay as “a statement that: (1) the declarant does not make while testifying

at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the

matter asserted in the statement.” Fed. R. Evid. 801(c). Where a video contains no verbal

conduct which could be construed as a statement, as is the case here, that video does not

constitute hearsay and may be considered by a district court in resolving a motion for

summary judgment. Thomas v. Town of Hempstead, No. 17-cv-02813, 2021 WL

2291838, at *5 (E.D.N.Y. June 4, 2021).

While a party need not ordinarily authenticate evidence for purposes of summary

judgment, evidence can nonetheless be authenticated “merely upon a showing that ‘a

reasonable juror could find in favor of authenticity or identification.’” Agoliati v. Block

856 Lot 300 LLC, No. 19-cv-05477, 2023 WL 8618234, at *3 (E.D.N.Y. Dec. 13, 2023)

(quoting United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001)). The Court finds that

the declaration submitted by defendants’ security system operator detailing the location

of the cameras, time of the footage, and method for preparing the video files establishes

a reasonable probability of the videos’ authenticity. See Yfraimov Decl., ECF No. 71-4.

Further, plaintiff’s remaining objections to the video, including skewed selection of video

footage, are areas proper for cross examination at trial. See Frost v. New York City Police

Dep’t, 980 F.3d 231, 247–48 (2d Cir. 2020), cert. denied, 142 S. Ct. 1666 (2022).

Accordingly, the Court considers the videos in resolving the instant motions.

B. Overtime Hours

The primary material factual dispute before the Court is whether plaintiff worked

more than 40 hours per week such that defendants are liable for non-payment of overtime

wages. There are two relevant time periods at issue. Both parties seek summary judgment

as to the first: May 2015 to October 2016 (“Period One”). See Pl. Counter 56.1 ¶ 16; Pl.

Mot. 11; Defs. Mot. 19. Plaintiff alone seeks summary judgment as to the second: October

2016 to February 2021 (“Period Two”). See Pl. Mot. 11.4

When pay records are either lacking or insufficient, courts apply a burden-shifting

framework to resolve factual hours disputes. See Daniels v. 1710 Realty LLC, 497 F. App’x

137, 139 (2d Cir. 2012) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)).

Under this framework, a plaintiff need only produce “sufficient evidence to show the

amount and extent of that work as a matter of just and reasonable inference.” Perry v.

City of New York, 78 F.4th 502, 526 (2d Cir. 2023). This burden “is not high,” and may

be met “through estimates based on [plaintiff’s] own recollection.” Kuebel v. Black &

Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). Even testimony that is imprecise or

“somewhat inconsistent” can suffice to shift the burden to the employer defendant. Id. at

4 Plaintiff argues that she is entitled to overtime compensation for every week from

“2015 through the date of her termination.” Pl. Mot. 11. The record indicates that plaintiff

was terminated in April 2021. Pl. Counter 56.1 ¶ 27 (not disputing the date of plaintiff’s

termination); Pl. Dep. Tr. 243:5–6, ECF No. 71-8 (“. . . before I was terminated in April

2021”). However, plaintiff’s complaint alleges that her employment ended in February

2021. Compl. 5, ECF No. 1. As both parties’ motions for summary judgment are denied as

to plaintiff’s overtime claims, the Court does not resolve the discrepancy at this time.

364–65. This is because “the dispute as to the precise amount of [plaintiff’s]

uncompensated work is one of fact for trial.” Id. at 365. Where an employee has met that

burden, “the employer may rebut with evidence of the precise amount of work performed

or with evidence to negative the reasonableness of the inference to be drawn from the

employee’s evidence.” Daniels v. 1710 Realty LLC, 497 F. App’x 137, 139 (2d Cir. 2012).

The parties agree that defendants’ records for plaintiff are lacking, and that the

Anderson framework applies. Pl. Mot. 14–15; Defs. Mot. 19. For the reasons stated below,

the Court finds that a genuine issue of a material fact remains as to whether plaintiff

incurred unpaid overtime hours during Periods One and Two.

i. Period One: May 2015 to October 2016

Both parties seek summary judgment on plaintiff’s overtime claims for Period One.

See Pl. Counter 56.1 ¶ 16; Pl. Mot. 11; Defs. Mot. 19. When evaluating cross-motions for

summary judgment, the “basic standard” is not altered, and the court is tasked with

determining “whether either of the parties deserves judgment as a matter of law on facts

that are not in dispute.” AFS/IBEX v. AEGIS Managing Agency Ltd., 517 F. Supp. 3d 120,

123 (E.D.N.Y. 2021). Each party’s motion “must be examined on its own merits, and in

each case all reasonable inferences must be drawn against the party whose motion is

under consideration.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001).

To support her claim for unpaid overtime for Period One, plaintiff estimates that

she “worked on [sic] average of five hours of overtime” each week. Oral Arg. Tr. 21:23–

22:2; see also Pl. Dep. Tr. 165:17–19, ECF No. 71-8. Defendants similarly point to

plaintiff’s testimony, arguing that plaintiff’s statements are “vague” for 2015 and that

plaintiff is “unable to identify specific work weeks” in 2016 during which she worked

overtime. Oral Arg. Tr. 32:3–6. Defendants further note that plaintiff had additional

employment during that period and therefore worked only part-time for Prasad Cosmetic,

and, indeed, denied working overtime during certain pay periods in mid and late 2015.

Oral Arg. Tr. 12:4–16; Defs. Mot. 20; Pl. Counter 56.1 ¶ 17.

In order to prevail on her overtime wage claims for Period One, plaintiff must

provide at least a reasonable estimate of her hours worked. While plaintiff’s burden is not

high, there remains a dispute as to whether her estimate of hours worked during this

period is reasonable. Plaintiff correctly notes that she may rely on her recollection and

estimates of hours to satsify her burden of providing a reasonable estimate. See Pl. Mot.

12–13. For example, in Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372

(E.D.N.Y. 2012), one class of plaintiffs testified specifically that they worked from

4:00AM to 11:00AM seven days a week plus afternoons every other day, resulting in

workweeks of over forty hours. Id. at 382–83. The court found that these plaintiffs were

entitled to summary judgment on their overtime claims where testimony of supervisors

corroborated their testimony and timesheets maintained by defendants showed that some

employees kept that same schedule. Id. In the same case, another group of plaintiffs also

testified to a specific schedule of over 40 hours a week, which the court found met the

initial burden under Anderson. Id. at 383. However, the court found that the supervisors’

testimony, which outlined a schedule with a maximum of 38 hours, was sufficient to

disentitle each party to summary judgment at the second step of the Anderson framework.

Id. at 384.

Here, plaintiff testified that she believes there were a few weeks in 2015 where she

worked more than 40 hours. Pl. Dep. Tr. 137:6–19, ECF No. 71-8. For 2016, plaintiff also

testified that she stopped working at Presidio, her other place of employment, and was

only working at Prasad. She recalled that she “was working 60, 70 hours a week” at that

time but she could not recall “the exact timeline when [she] started working more hours.”

Pl. Dep. at 178:17–25, ECF No. 71-8. The evidence presented by plaintiff for Period One

is thin. Unlike in Berrios, she fails to identify a general work schedule for the weeks she

worked more than 40 hours. However, the Supreme Court, in laying out the Anderson

framework, specifically stated that the requirement for plaintiffs to provide an estimate

of their overtime hours should not be “an impossible hurdle for the employee,”

considering that the FLSA requires employers to retain records of employees’ hours

worked. Anderson, 328 U.S. at 687.

Because plaintiff need only show that there “is a reasonable basis for calculating

damages” assuming that a violation is shown, she has satisifed her burden under

Anderson. Kuebel, 643 F.3d at 364–65 (finding plaintiff’s testimony that “to the best of

his memory” he averaged one to five hours of uncompensated overtime each week

sufficient). Plaintiff’s deposition testimony has established the “approximate hours

worked” and thus has shifted the burden to defendants to come forward with evidence

that negates the reasonableness of the inference created by her testimony as to whether,

and to what extent, she worked overtime hours. See Ladino v. Cordova, No. 21-cv-02449,

2023 WL 2915402, at *4 (E.D.N.Y. Apr. 12, 2023).

Defendants have presented evidence to negate the reasonableness of the inference

to be drawn from plaintiff’s testimony. In particular, defendant Amiya Prasad, who

supervised plaintiff during the relevant period, submitted a declaration stating that

plaintiff worked a schedule of Monday and Wednesday evenings and Saturdays, with

some limited hours worked from home, which resulted in plaintiff working a maximum

of 35 hours per week. A. Prasad Decl. ¶ 78, ECF No. 68-3.5 Defendants do not, however,

present any documentary evidence in rebuttal. In the absence of documentary evidence

regarding plaintiff’s hours worked, the resolution of this dispute would require the Court

to engage in a credibility analysis to resolve conflicting testimony, an exercise that is

inappropriate at the summary judgment stage. See Canela-Rodriguez v. Milbank Real

Est., No. 09-cv-06588, 2010 WL 3701309, at *2 (S.D.N.Y. Sept. 20, 2010) (finding

plaintiff’s testimony that he worked over 40 hours a week “create[d] a fact issue

precluding summary judgment, notwithstanding defendants’ challenge to the credibility

of this testimony” which must be resolved at trial). Whether viewed in the light most

favorable to plaintiff or defendants, this record could support a jury finding for either

party depending on how the competing testimony is weighed.

Without any evidence other than contradictory testimony as to the unspecified

hours worked by plaintiff, the Court is left with a credibility determination best left for

the jury. Accordingly, summary judgment is denied for both parties as to Period One.

5 Plaintiff argues that the Court should disregard Amiya Prasad’s declaration as a

“sham affidavit.” Pl. Reply 8. In the Second Circuit, it 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.” Berrios v. Nicholas Zito

Racing Stable, Inc., 849 F. Supp. 2d 372, 378 (E.D.N.Y. 2012). Plaintiff’s only basis for

invoking this doctrine against Amiya Prasad’s affidavit is that when shown the credit card

bills at his deposition, Dr. Prasad could not identify what was purchased or by whom, but

that he could “fully identify” those purchases in his declaration, and that his declaration

had “new explanations” for paying plaintiff “off the books.” Pl. Reply 8–9. These are not

the types of direct conflicts between deposition testimony and affidavits that result in

district courts disregarding affidavits wholesale. See CDS Bus. Servs. Inc. v. Sebbag, No.

21-cv-01992, 2023 WL 7181646, at *3 (E.D.N.Y. Aug. 16, 2023). Even if the Court found

there were direct conflicts, the Court may simply consider Amiya Prasad’s declaration to

the extent it does not contradict his prior deposition testimony as to Period One. See

Pollard v. New York Methodist Hosp., 134 F. Supp. 3d 681, 684 n.2 (E.D.N.Y. 2015).

ii. Period Two: October 2016 to February 2021

Only plaintiff moves for summary judgment on Period Two. Accordingly, the Court

draws all reasonable inferences in defendants’ favor when reviewing the record. See

Roberts, 68 F.4th at 88.

Plaintiff supports her overtime wage claim for Period Two by asserting that she

worked an average of 60–70 hours a week during that period. Pl. 56.1 ¶ 29. Plaintiff

contends that such testimony is sufficient to shift the evidentiary burden to defendants

despite no specificity as to any time not worked, for example, for purposes of vacation or

illness. Oral Arg. Tr. 20:8–14, 21:9–16. Defendants present evidence to negate the

reasonableness of the inference that plaintiff worked 60–70 hours per week through,

inter alia, Amiya Prasad’s declaration. See Defs. Opp’n 14. Specifically, Amiya Prasad

avers that plaintiff’s schedule from late 2016 to 2019 consisted of in-office work on

Mondays, Wednesdays, and Fridays. A. Prasad Dec. ¶¶ 86–88. Additionally, defendants

summarize years of surveillance footage, see Defs. Opp’n Ex. F (spreadsheet summarizing

plaintiff’s time in the office from February 2018 to February 2021), and assert that

plaintiff was “only in the office for 25 hours” for “many weeks” during Period Two, Oral

Arg. Tr. 17:24–25; A. Prasad Decl. ¶ 115. Defendants assert that beginning in January

2020, plaintiff began coming into the office Monday through Friday, and that for the

majority of the weeks in 2020 plaintiff was in the office less than 40 hours a week. A.

Prasad Decl. ¶¶ 129, 130. Defendants posit that on those occasions in 2020 when plaintiff

was in the office more than 40 hours, she was not working, but spending time engaging

in “sexual or other recreational activity” with her subordinate. A. Prasad Decl. ¶¶ 131–33.

The parties also dispute the hours plaintiff worked remotely during Period Two.

Defendants argue that, because the video footage shows plaintiff physically in the office

an average of 25 hours a week from 2016 to the end of 2019, she would have had to work

the vast majority of her hours remotely during this period to meet her estimate of 60–70

hours of work per week. Defs. Opp’n 14. Defendants’ argument implies that this estimate

is implausible, that plaintiff “at best” worked one or two hours per week remotely, and

that “the only evidence” to support that plaintiff worked a significant amount of time

remotely is her own testimony because “her husband who she resided with had no

knowledge whatsoever of the quantum of hours” plaintiff worked remotely. Defs. Opp’n

14–15. See also Oral Arg. Tr. 17:19, 18:3–8. Plaintiff does not offer evidence, such as

emails, work assignments, or VPN logins, that might support an inference that she worked

the bulk of her hours remotely from 2016 to late 2019. For the entirety of Period Two,

plaintiff does not assert how frequently she worked remotely, and instead noted that she

“was always available” and “was working from home multiple days a week before work.”

Pl. Dep. Tr. 228:10, 21–22, ECF No. 71-8.

Resolving all reasonable inferences in defendants’ favor, the Court first accepts

defendants’ characterization of the video footage showing that plaintiff was physically in

the office on average 25 hours per week from 2016 to 2019, and that for 2020 and 2021,

plaintiff’s time spent actually working in the office was less than 40 hours per week. Next,

the Court finds that plaintiff has failed to offer evidence in support of an inference that

she worked sufficient hours remotely in Period Two that would entitle her to overtime

wages as a matter of law. Even assuming that plaintiff has met her burden to offer a

reasonable estimate of her time worked, defendants have come forward with evidence to

negate the reasonableness of that estimate.

Accordingly, plaintiff is not entitled to summary judgment on her overtime claim

for Period Two.

C. Faithless Servant and Alleged Misconduct

Both parties seek summary judgment on defendants’ counterclaim for breach of

fiduciary duty. Pursuant to New York’s faithless servant doctrine, employees are

prohibited “from acting in any manner inconsistent with their agency or trust and are at

all times bound to exercise the utmost good faith and loyalty in the performance of their

duties.” Roytlender v. D. Malek Realty, LLC, No. 21-cv-00052, 2024 WL 3566998, at *11

(E.D.N.Y. July 29, 2024). Where an employee acts contrary to this duty, they may forfeit

the right to compensation “for services that are tainted by the dishonesty.” Id.

New York courts have used two different standards to determine when an

employee’s misconduct warrants forfeiture. The “distinction between the two” standards

lies in whether the breach is “substantial.” Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d 216,

237 (2d Cir. 2020). The first standard, referred to as the Turner standard, is met when

the employee’s “misconduct and unfaithfulness” is so significant that the employee’s

conduct “substantially violates the contract of service.” Turner v. Konwenhoven, 100 N.Y.

115, 120 (1885). The second, referred to as the Murray standard, is met when “misconduct

by an employee . . . rises to the level of a breach of a duty of loyalty or good faith.” Yukos

Cap. S.A.R.L., 977 F.3d at 237. In applying the faithless servant doctrine, New York courts

ask whether “(1) . . . the employee’s disloyal activity was related to the performance of her

duties, and (2) . . . the disloyalty permeated the employee’s service in its most material

and substantial part.” Roytlender, 2024 WL 3566998, at *12.

Regardless of which standard applies here, facts pertaining to plaintiff’s alleged

misconduct remain in dispute, the resolution of which are not appropriate for summary

judgment. While the Court finds that defendants have offered evidence tending to show

that plaintiff engaged in some misconduct associated with the performance of her duties

at Prasad, the extent of that misconduct and whether it implicated a substantial part of

plaintiff’s duties is disputed. Specifically, there are material disputes as to whether

plaintiff improperly utilized Prasad Cosmetic credit cards for personal purchases,

misused a vendor promotion, and the extent of plaintiff’s engagement in a romantic

relationship with a subordinate. Therefore, the cross motions for summary judgment on

defendants’ counterclaim for breach of fiduciary duty pursuant to the faithless servant

doctrine are denied.

i. Prasad Cosmetic Credit Cards

Defendants assert that plaintiff improperly utilized company credit cards for

Staples, Walmart, and Best Buy, resulting in “over $115,000 in improper charges.” Defs.

Opp’n 22–23. To support this assertion, defendants point to credit card statements

indicating charges for a range of goods, including gift cards, clothing, electronics, and

food. S. Prasad Decl. ¶¶ 35–65, ECF No. 71-3.

Plaintiff testified that she was allowed to make gift card purchases “as an incentive”

for “[d]oing a good job,” that she was allowed to make personal purchases with company

cards, and that she deducted her personal purchases from her wages. Pl. Dep. Tr. 86:17–

20, 87:3, 163:18–20, ECF No. 71-8. Plaintiff argues that defendants reviewed the credit

card statements and paid them contemporaneously, thereby ratifying any purchases that

were not pre-approved. Pl. Mot. 23–24. Plaintiff also argues that, when initially

questioned, Amiya Prasad was unable to determine which purchases were improper

before he ultimately tried to “rewrite testimony.” Oral Arg. Tr. 23:25–24:2, 17–19.

Defendants counter that plaintiff’s claim of gift card purchases being permitted as an

incentive is made “in a vacuum” and lacks evidence other than plaintiff’s own testimony.

Oral Arg. Tr. 14:1. Defendants assert that plaintiff was not authorized to use the company

card for personal purposes, and argue that weighing contemporaneous payment in favor

of plaintiff undermines the concept of fiduciary duties. See Defs. 56.1 ¶ 34, Oral Arg. Tr.

33:8–13. Defendants further assert that they appropriately used the errata sheet for

corrections to Amiya Prasad’s deposition testimony. Oral Arg. Tr. 34:15–16.

Clearly, the parties dispute the relevant facts surrounding plaintiff’s alleged

misconduct: whether the purchases were for business purposes, whether non-business

purchases were approved, and whether plaintiff paid for the non-business purchases she

made. Both parties give testimony consistent with their claims. The evidence must thus

be weighed by a factfinder and is unsuitable for summary judgment.

ii. Relationship with Subordinate

The next category of misconduct defendants allege in support of their breach of

fiduciary duty claim arises from plaintiff’s romantic relationship with her co-worker and

subordinate, Gerson Vargas. Defs. Opp’n 25. In particular, defendants allege that

plaintiff: allowed Vargas to enter the Prasad Cosmetic Garden City office before he was

hired and engaged in sexual activity with him; facilitated the hiring of Vargas without

advising defendants of a pre-existing romantic relationship; frequently engaged in sexual

and recreational activity with Vargas after-hours at the Prasad Cosmetic office after he

was hired; forged Amiya Prasad’s signature to allow Vargas to participate in the

company’s healthcare plan; purchased sneakers for Vargas with a Prasad Cosmetic credit

card; gave Vargas a travel reimbursement to which he was not entitled; and gave him gift

cards from the Evolus vendor promotion. Defs. Opp’n 25–27.

Plaintiff admits some, but not all, of defendants’ allegations. For example, plaintiff

does not deny a romantic relationship with Vargas, but claims that it began after Vargas

was hired by defendants. Pl. Opp’n 72; see also Vargas Dep. Tr. 21:14–15, ECF No. 67-7

(Vargas testifying that he “didn’t know [plaintiff] before the job”). Plaintiff also testified

that she added Vargas to the company insurance policy at defendants’ request, and Vargas

testified that the travel reimbursement was both part of his agreed upon compensation

with defendants and not facilitated by plaintiff. Pl. Dep. Tr. 331:21–332:21, ECF No. 71-

8; Vargas Dep. Tr. 37:20–38:9, ECF No. 67-7. Vargas also denied that plaintiff gifted him

the sneakers or Evolus gift cards at issue. Vargas Dep. Tr. 37:3–9, 45:8–19, ECF No. 67-

7. Further, the sneakers purchased on the company credit card appear to have been sent

to the Prasad Cosmetic office but it is not clear who made the purchase, even though the

email confirmation was sent to plaintiff. Defs. Mot. Ex. O, ECF No. 71-19 (email

confirmation for sneakers sent to plaintiff’s email).

The evidence offered by plaintiff raises several factual disputes concerning her

relationship with Vargas. Additionally, the disputes regarding whether travel

reimbursements and company insurance coverage were approved by defendants cannot

be resolved by a review of the documentary evidence. Plaintiff testified that she was

empowered to add Vargas to the insurance by Amiya Prasad, which Prasad denied. Vargas

also testified that plaintiff was not involved in the travel reimbursement issue, which he

claims was between himself and defendants. Defendants deny this as well. Resolution of

these disputes between witnesses with competing testimony requires a credibility

determination, an exercise which is inappropriate at summary judgement.

iii. Evolus Vendor Promotion

To support their breach of fiduciary duty claim, defendants also assert that plaintiff

engaged in a vendor promotion that was intended for Prasad Cosmetic for her personal

gain, obtaining “$39,600 in digital Visa cards.” Defs. Opp’n 24, Defs. Mot. 8–12.6

Defendants present documentary evidence to support their argument that plaintiff

improperly redeemed the Visa gift cards. First, records obtained from the vendor, Evolus,

indicate that there were 468 codes issued to Prasad Cosmetic and subsequently redeemed

for the same number of Visa cards. Defs. 56.1 ¶¶ 146–48. The Evolus records include

details about the redeemed codes, including associated emails, phone numbers, and

phone service carriers. Defs. 56.1 ¶ 148. The acquired spreadsheet listed plaintiff’s cell

phone number, an unknown number, and the number for Heather Masotto, the Evolus

Representative assigned to Prasad Cosmetic. See Defs. 56.1 ¶¶ 155–58. Second, the “vast

majority” of the codes had a carrier associated with the Burner application, an application

individuals use to obtain and use temporary phone numbers. See Defs. 56.1 ¶¶ 153, 160,

166. Defendants argue that plaintiff downloaded the Burner application and generated

numbers “basically to the same extent” the vendor promotion gift card codes were

redeemed. Oral Arg. Tr. 15:21–23. Next, defendants argue that screenshots of gift cards

were found at plaintiff’s email address, and that in those screenshots the word “Burner”

can be found at the upper-left hand corner, which indicates that the Burner application

6 Plaintiff argues that because defendants’ counterclaim does not include allegations

regarding the Evolus promotion, the allegations should be disregarded. Pl. Mot. 24.

However, “the Court has discretion to adjudicate a claim that was not pled.” Vetromile v.

JPI Partners, LLC, 706 F. Supp. 2d 442, 456 (S.D.N.Y. 2010). Courts generally decline to

consider unpled claims at summary judgment when the failure to plead resulted in a lack

of notice to the other party and therefore foreclosed the opportunity to conduct discovery

and prepare a defense. Richards v. Connecticut Dep’t of Corr., 349 F. Supp. 2d 278, 291

(D. Conn. 2004) (“The failure to properly plead . . . has deprived defendants of the notice

necessary to permit them to conduct discovery and prepare a defense.”). Here, the parties

engaged in discovery concerning the Evolus promotion. See A. Prasad Dep. Tr. 115:8–

119:22 (plaintiff’s counsel questioning defendant Amiya Prasad about the Evolus

promotion). See also Jund v. Town of Hempstead, 941 F.2d 1271, 1287 (2d Cir. 1991).

Accordingly, the Court will consider defendants’ allegations concerning the Evolus

promotion.

was being used on plaintiff’s phone. Oral Arg. Tr. 16:1–4; Defs. 56.1 ¶ 213; Defs. Mot. Ex.

W, ECF No. 71-27 (screenshots found in plaintiff’s email). Lastly, defendants offer

subpoena records from the issuing bank, which show the gift cards were used by Vargas.

Oral Arg. Tr. 30:20–31:1; Defs. Opp’n 25. Defendants’ submissions also suggest that

plaintiff was engaged in selling the Visa gift cards at issue. Defendants allege that certain

individuals used some Visa gift cards who are unknown to either party, in particular Luis

Dono, who defendants believe is “likely affiliated with Plaintiff or Vargas.” S. Decl. ¶¶ 174–

97.

Defendants have offered evidence tending to show that plaintiff improperly

redeemed Visa gift cards intended for Prasad Cosmetic’s patients. However, when

considering defendants’ motion for summary judgment, the Court is obligated to view the

evidence in the light most favorable to plaintiff and resolve all factual inferences in her

favor. When considering the evidence according to this standard, the record before the

Court is insufficient to determine at summary judgment whether and to what extent

plaintiff improperly redeemed the gift cards. At her deposition, plaintiff denied using or

selling any gift cards or Visa cards associated with the Evolus promotion, and she testified

that Amiya Prasad was aware of the gift card promotion and did not want Prasad Cosmetic

to participate. Pl. Dep. Tr. 250:22–251:6, 254:16–17, 285:18–21. Additionally, an Evolus

Representative testified that she downloaded the Burner application on plaintiff’s phone

“at the behest of Evolus” only to instruct plaintiff on how to redeem the gift cards. Oral

Arg. Tr. 25: 3–9; Pl. 56.1 ¶ 95. Furthermore, plaintiff denies that she sold any Visa gift

cards to third parties and defendants do not offer direct evidence showing either that

plaintiff sold gift cards or that she is connected to an individual named Luis Dono. Pl.

Dep. Tr. 272:24–273:5, ECF No. 71-8; A. Prasad Dep. Tr. 119:14–22 (Amiya Prasad

testifying that he has no direct evidence that Visa gift cards were sold “to anyone else”).

Accordingly, whether plaintiff engaged in misconduct regarding the Evolus promotion

remains in dispute.

* * *

Next, the Court will consider whether the evidence of misconduct presented by

defendants has established that plaintiff’s disloyalty permated her service such that

defendants are entitled to forfeiture of her compensation during the period of alleged

disloyalty. In particular, the Court will consider whether “(1) . . . the employee’s disloyal

activity was related to the performance of her duties,” and whether “(2) . . . the disloyalty

permeated the employee’s service in its most material and substantial part.” Roytlender,

2024 WL 3566998, at *12.

iv. The undisputed facts of plaintiff’s misconduct do not warrant

summary judgment for either party.

The misconduct for which there is no genuine dispute, including plaintiff’s use of

the office for sexual and recreational activity after Vargas was hired, is not sufficient to

entitle defendants to summary judgment on their breach of fiduciary duty counterclaim.

Specifically, defendants have failed to demonstrate as a matter of law that the alleged

disloyal conduct materially and substantially permeated plaintiff’s service to defendants.

For example, in Roytlender, defendants established that the plaintiff’s disloyal

conduct permeated her service to defendants such that defendants were entitled to

forfeiture where plaintiff engaged in multiple schemes for approximately four years to

steal over $1 million. 2024 WL 3566998, at *12. Isolated instances of misconduct,

however, are insufficient to warrant application of the faithless servant doctrine. See, e.g.,

Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447, 466, 470 (S.D.N.Y. 2008)

(finding that isolated and relatively routine misconduct did not warrant application of the

faithless servant doctrine).

Indeed, courts have found that forfeiture is warranted where misconduct “tainted

all of the work during the period of disloyalty.” Spencer-Smith v. Ehrlich, No. 23-cv-

02652, 2024 WL 709291, at *17 (S.D.N.Y. Feb. 21, 2024) (finding plaintiff sufficiently

alleged breach of fiduciary duty where defendant attorney allegedly engaged in

inappropriate conduct and jeopardized his client’s music tour). See also Doe v. Solera

Capital LLC, No. 18-cv-01769, 2019 WL 1437520, at *9 (S.D.N.Y. Mar. 31, 2019), vacated

on other grounds, 2020 WL 11027792 (S.D.N.Y. Dec. 16, 2020) (finding courts apply the

faithless servant doctrine more frequently when disloyalty is part of a persistent pattern).

As another example, in Phansalkar v. Andersen Weinroth & Co., L.P., the Second Circuit

found that the employee plaintiff’s misconduct warranted forfeiture because his disloyalty

occurred in “nearly every transaction on which he worked,” and concluded that where

“disloyalty occurs in four out [of] five of an employee’s primary areas of responsbility,”

the disloyalty constitutes a substantial violation of the terms of that employee’s service.

344 F.3d 184, 202 (2d Cir. 2003).

Here, the undisputed facts of plaintiff’s relationship with Vargas show a consensual

romantic relationship. Defendants’ allegations that plaintiff gave Vargas travel

reimbursement and improperly put him on the company health insurance have not been

established when viewing the evidence in plaintiff’s favor, and considering only the

undisputed and improper use of company property, this misconduct did not permeate

plaintiff’s service for Prasad Cosmetic. While defendants provide evidence that plaintiff

and Vargas improperly utilized the Prasad Cosmetic office during work hours, see S.

Prasad Decl. ¶¶ 97–98, defendants allege that the bulk of plaintiff’s misuse of the office

space occurred after work hours, see Defs. Mot. Ex. M, ECF No. 71-17 (spreadsheet of time

and dates of plaintiff and Vargas’s misuse of the office space).

Accordingly, defendants do not present any evidence that plaintiff’s relationship

with Vargas affected her day-to-day job performance at Prasad or that this misconduct

permeated her employment. Because the facts about which there is no genuine dispute do

not show that plaintiff’s misconduct permeated her service at Prasad, defendants have

not established that they are entitled to forfeitfure of plaintiff’s compensation at this stage

in the proceedings.

Additionally, plaintiff’s motion for summary judgment on defendants’

counterclaim for breach of fiduciary duty is denied. Plaintiff argues that defendants have

put forward insufficient evidence to establish that plaintiff misused credit cards or

redeemed the Evolus gift cards, and that defendants’ allegations regarding plaintiff’s

relationship with Vargas are insufficient to entitle them to forfeiture of plaintiff’s

compensation. Pl. Mot. 21–25. As discussed supra, defendants have submitted sufficient

documentary evidence to enable a jury to find that plaintiff engaged in misconduct during

her employment at Prasad. Resolution of the disputed facts regarding the particulars of

plaintiff’s relationship with Vargas, whether plaintiff misused company credit cards,

plaintiff’s alleged misconduct regarding the Evolus gift card promotion, and whether that

alleged misconduct permeated plaintiff’s service, are left for resolution at trial.

III. Plaintiff is not entitled to summary judgment on defendants’

affirmative defenses.

Lastly, plaintiff argues that the Court should strike defendants’ affirmative

defenses of good faith, waiver, ratification, and lack of willfulness. Pl. Mot. 16–21.

However, a ruling on these affirmative defenses is premature at this juncture.

“At the summary judgment stage, courts are generally reluctant to rule on a party’s

good-faith defense where an FLSA violation has yet to be established.” Ametepe v. Peak

Time Parking, Corp., No. 18-cv-05384, 2021 WL 1172669, at *9 (S.D.N.Y. Mar. 29, 2021)

(finding it premature to resolve good faith affirmative defense pending a finding of

liability). The same is true regarding defendants’ affirmative defense of a lack of

willfulness. “[C]ourts in [the Second] Circuit have generally left the question of willfulness

to the trier of fact.” Inclan v. N.Y. Hosp. Grp., Inc., 95 F. Supp. 3d 490, 503 (S.D.N.Y.

2015). Although plaintiff correctly notes that defendants bear the burden of proof on these

defenses at trial, see Pl. Mot. 17, plaintiff requests that the Court resolve the question on

summary judgment, where plaintiff bears the burden of proof. Accordingly,

“notwithstanding [d]efendants’ difficult trial burden, they have no burden to meet right

now.” Franco v. Ideal Mortg. Bankers, Ltd., No. 07-cv-03956, 2011 WL 317971, at *10

(E.D.N.Y. Jan. 28, 2011) (declining to award FLSA plaintiff summary judgment on good

faith defense). Considering that plaintiff is not entitled to summary judgment on her

underlying unpaid overtime claim, the Court declines to rule on defendants’ affirmative

defenses of lack of willfulness and good faith.

Even if plaintiff had established a violation of the FLSA on summary judgment, she

has not met her burden to show an absence of evidence supporting the affirmative

defenses of lack of willfulness and good faith. To support her argument that defendants

failed to provide evidence of their efforts to comply with the FLSA, plaintiff cites

paragraphs 70 through 74 of her statement of undisputed facts. Pl. Mot. 19. However,

those paragraphs merely state that defendants produced no timesheets, tax statements,

wage statements, or records of plaintiff’s hours worked, and that payday reminder emails

sent by plaintiff to defendant Amiya Prasad “did not list what hours she worked or her

rate of pay.” Pl. 56.1 ¶¶ 70–74. Defendants’ lack of records—which in part contributed to

the factual dispute necessitating a trial as to plaintiff’s overtime claim—is not adequate to

invalidate defendants’ affirmative defenses at this stage.

Additionally, plaintiff’s reliance on Rosso v. PI Management Associates, LLC is

inapposite. Pl. Mot. 19 (citing Rosso, No. 02-cv-01702, 2005 WL 3535060 (S.D.N.Y. Dec.

23, 2005)). The court in Rosso made its finding on the affirmative defense of good faith

after finding at a bench trial that plaintiff had established a violation of the FLSA. See

Rosso, 2005 WL 3535060 at *8. As discussed supra, plaintiff has not established a FLSA

violation at summary judgment. Accordingly, plaintiff is not entitled to summary

judgment on defendants’ second, third, fourth, and eleventh affirmative defenses.

Plaintiff also requests that the Court strike defendants’ sixth affirmative defense of

waiver and ratification. In support of this argument, but with no citation to her testimony,

plaintiff states that she “testified that she asked [Amiya Prasad] to pay her on the books

and he refused.” Pl. Mot. 20. However, whether plaintiff requested on-the-books pay is

disputed by the parties. See Defs. Counter 56.1 ¶ 30; Pl. Dep. Tr. 51:13–25, ECF No. 71-8

(plaintiff testifying that she did not know why defendants were paying her in cash off the

books); A. Prasad Dep. Tr. 47:22–48:20, ECF No. 72-4 (Amiya Prasad testifying that

plaintiff was not put back into the payroll system at her own request due to her financial

situation). Plaintiff’s motion does not present argument as to why defendants’ affirmative

defense of ratification should be stricken, and defendants’ brief in opposition does not

address plaintiff’s argument regarding waiver. See Pl. Mot. 16–21 (containing no

argument regarding the affirmative defense of ratification); Defs. Opp’n 16–17.

Considering the relative lack of argument on this issue, and the dispute concerning the

circumstances which led to plaintiff being paid off the books, the Court will not strike

defendants’ affirmative defense of waiver and ratification at this juncture. Accordingly,

plaintiff’s motion for summary judgement as to defendants’ sixth affirmative defense is

denied.

CONCLUSION

For the reasons stated above, plaintiff’s motion for summary judgment is

DENIED and defendants’ motion for summary judgment is GRANTED in part,

DENIED in part. In accordance with the Court’s Individual Practice Rule IV.A, the

parties shall file a proposed joint pretrial order by March 17, 2025.

SO ORDERED.

/s/ Natasha C. Merle

NATASHA C. MERLE

United States District Judge

Dated: February 13, 2025

Brooklyn, New York