Kasseris

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

PANAGIOTIS KASSERIS, individually

and on behalf of all other similarly

situated employees,

MEMORANDUM & ORDER

Plaintiff, 23-cv-06281 (NCM) (SDE)

— against —

ZA & D SERVICE STATION, INC.;

ANTHONY KOULIZAKIS; NIKOLAS

KOULIZAKIS

Defendants.

NATASHA C. MERLE, United States District Judge:

Panagiotis Kasseris brings this action pursuant to the Fair Labor Standards Act, 29

U.S.C. § 201 et seq. (“FLSA”), and the New York Labor Law, N.Y. Lab. L. § 190 et seq.

(“NYLL”). See Second Am. Compl. (“SAC”) { 1, ECF No. 29. Before the Court is

defendants’ motion for summary judgment and sanctions. See generally Mot.' For the

reasons stated below, defendants’ motion for summary judgment is GRANTED in part,

DENIED in part. The Court defers ruling on defendants’ motion for sanctions.

1 The Court hereinafter refers to defendants’ Memorandum of Law in Support of

their Motion for Summary Judgment, Sanctions & Preclusion of Expert Witnesses, ECF

No. 49, as the “Motion”; plaintiffs Memorandum of Law in Opposition to Defendant’s

Motion, ECF No. 50, as the “Opposition”; and defendants’ Brief Memorandum of Law in

Further Support of Defendants’ Motion, ECF No. 51, as the “Reply.”

BACKGROUND

I. Factual Background2

Defendant ZA & D Service Station (“ZAD”) is an automotive body shop, repair, and

service station in Long Island City, New York. See Defs.’ 56.1 Statement (“56.1”) ¶ 13, ECF

No. 49-2; Pl.’s Counter 56.1 Statement (“Counter 56.1”)3 ¶ 13, ECF No. 50-3. Defendant

Anthony Koulizakis has been ZAD’s sole owner-operator and president since at least 2017.

See Decl. of Derrick Storms Ex. 2 (“Anthony Tr.”) at 6:20–8:2, ECF No. 50-5. Anthony’s

father, defendant Nikolas Koulizakis, was ZAD’s prior owner-operator. Anthony Tr. 7:8–

8:12. ZAD currently has about seven employees, Anthony Tr. 11:10–13, and is open

Monday through Friday from 8:00 a.m. to 6:00 p.m., and on Saturdays from 8:00 a.m.

to 3:00 p.m. Counter 56.1 ¶ 16.

Plaintiff Panagiotis Kasseris is an autobody repairman originally from Greece. See

Counter 56.1 ¶ 3; see also Decl. of Derrick Storms Ex. 1 (“Pl.’s Tr.”) at 11:13–12:6, ECF No.

49-7. Kasseris moved to the United States in 2017, Pl.’s Tr. 11:25–12:6, and met Anthony

the following year, Anthony Tr. 13:12–18. At some point in 2018, Kasseris visited Anthony

2 The following facts, drawn from the parties’ Local Civil Rule 56.1 Statements and

evidentiary submissions, are undisputed unless otherwise noted.

3 Several of plaintiff’s responses in his Counter 56.1 are without citations to

admissble evidence in violation of the Local Rules of the Eastern District of New York. See

Counter 56.1 ¶¶ 26–29; see also Loc. Civ. R. 56.1(d) (“Each statement by the . . . opponent

under Rule 56.1(a) and (b), including each statement denying and controverting any

statement of material fact, must be followed by citation to evidence that would be

admissible and set forth as required by Fed. R. Civ. P. 56(c)”). Thus, to the extent that

plaintiff “has offered no admissible evidence to refute” a particular fact in defendants’

56.1, “that fact is deemed admitted.” Brown v. City of New York, No. 11-cv-01068, 2013

WL 491926, at *1 n.1 (S.D.N.Y. Feb. 8, 2013) (citing Giannullo v. City of New York, 322

F.3d 139, 140 (2d Cir. 2003)); see also Henry v. McDonald, 531 F. Supp. 3d 573, 583

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

at ZAD and Anthony “gave him some jobs to do.” Anthony Tr. 20:17–23. Kasseris worked

at ZAD from that point onward until 2022, although the parties dispute the extent of

plaintiff’s work. See Pl.’s Tr. 7:6–7; Anthony Tr. 15:12–16. Specifically, Kasseris testified

that he and Anthony agreed that plaintiff would work at ZAD five days a week for forty

hours at a rate of $37.50 per hour. Pl.’s Tr. 53:22–25. Anthony claims that he had a

different arrangement with plaintiff; Anthony testified that plaintiff was more “[l]ike a

filler,” that is, defendants would call plaintiff “to come and help . . . finish some jobs”

whenever ZAD had “extra work.” Anthony Tr. 23:20–25.

Kasseris testified that his regular work schedule at ZAD ended up being 57 hours

per week. Pl.’s Tr. 49:22. According to Kasseris, he regularly worked Monday through

Friday from 8:00 a.m. to 6:00 p.m., and on Saturday from 8:00 a.m. to 3:00 p.m., in other

words, all of ZAD’s hours of operation. See Pl.’s Tr. 61:13–17; see also Counter 56.1 ¶ 16.

Moreover, despite his agreement with Anthony, plaintiff was only paid approximately

$600 per week for at least the first two years he worked at ZAD, rather than $37.50 per

hour. See Decl. of Panagiotis Kasseris (“Pl.’s Decl.”) ¶¶ 8, 13, ECF No. 50-2. Plaintiff

admits that he “stopped working at ZAD for periods from 2018 to 2022,” Counter 56.1 ¶ 7,

but attests that he worked at ZAD for most of 2018, 2019, 2021, and 2022, along with a

two month period in 2020, see Pl.’s Decl. ¶ 9. Plaintiff attributes these gaps in work

history at ZAD, at least in part, to the company’s business. That is, whenever “the business

was slow, they would . . . get rid” of plaintiff. Pl.’s Tr. 49:13–18.

Defendants dispute plaintiff’s characterization of his working relationship with

ZAD. First, Anthony testified that defendants considered plaintiff to be “a piecemeal kind

of filler kind of guy[,]” Anthony Tr. 26:3–6, and did not work there consistently until

2022, Anthony Tr. 21:14–22:3. Thus, in defendants’ view, plaintiff “was never considered

a full-time employee[.]” Anthony Tr. 16:3–5. Accordingly, defendants never issued

plaintiff any wage statements, wage notices, pay stubs, or otherwise kept track of

plaintiff’s hours. See Anthony Tr. 15:22–16:9, 31:6–7. Defendants also dispute the nature

of plaintiff’s compensation. According to Anthony, plaintiff’s hourly wage was $21 per

hour the entirety of his tenure at ZAD. Anthony Tr. 37:9–15. Anthony testified that there

may have been some periods in which plaintiff “worked a full week with overtime,” but

again, no one at ZAD “kept track of the hours that [plaintiff] worked[.]” Anthony Tr. 31:3–

22.

II. Procedural Background

Plaintiff originally sued defendants in the Southern District of New York in

February 2023 before the case was transferred to the Eastern District of New York on

August 2, 2023. Counter 56.1 ¶¶ 17–19. Plaintiff amended his complaint twice, and in the

SAC brings claims for unpaid minimum wage and overtime pursuant to the FLSA and the

NYLL, along with other claims based on alleged violations of the NYLL. Counter 56.1 ¶ 2;

see also SAC ¶¶ 60–121. Although the SAC originally brought class claims, no class was

ever certified. Counter 56.1 ¶ 22. During the pendency of this action, plaintiff filed a

personal injury action in New York State court against different defendants unrelated to

plaintiff’s wage claims. Counter 56.1 ¶ 22; see also Decl. of Kevin Sean O’Donoghue Ex. F,

ECF No. 49-8.

On August 7, 2025, defendants moved for summary judgment. See Mot. Plaintiff

opposes defendants’ motion. See Opp’n.

LEGAL STANDARD

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).4 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).

If the non-moving party has the burden of proof at trial, “the moving party need

only demonstrate that there is a lack of evidence to support the non-movant’s claim.”

Dolan v. Cassella, 543 F. App’x 90, 90 (2d Cir. 2013) (summary order); see also Miller v.

Terrillion, 436 F. Supp. 3d 598, 600 (E.D.N.Y. 2020) (“Summary judgment is appropriate

if the nonmoving party who bears the burden of proof at trial fails to offer proof

concerning an essential element of the nonmoving party’s case.”). Where the movant

satisfies this burden, the non-movant “must set forth specific facts showing that there is

a genuine issue for trial and may not rest upon the mere allegations or denials of his

pleading.” Dolan, 543 F. App’x at 91. 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). That is,

“there must be sufficient evidence from which a reasonable finder of fact could find in the

non-movant’s favor.” Dolan, 543 F. App’x at 91. The court need only consider admissible

evidence, and is not obligated to conduct an independent review of the record to identify

a factual dispute. Looney v. Macy’s Inc., 588 F. Supp. 3d 328, 340 (E.D.N.Y. 2021).

4 Throughout this Order, the Court omits all internal quotation marks, footnotes,

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

DISCUSSION

Defendants seek summary judgment in their favor on plaintiff’s claims under the

FLSA (Counts I and III), see Mot. 12, and argue that the Court should decline to exercise

supplemental jurisdiction over plaintiff’s NYLL claims (Counts II, IV, V, VI, VII, and

VIII), see Mot. 13. Defendants also raise merits arguments as to plaintiff’s minimum wage,

overtime, weekly payment, and timely payment claims pursuant to the NYLL (Counts II,

IV, V, and VI). See Mot. 8, 13.5

Defendants argue that summary judgment in their favor is warranted for at least

four reasons. First, defendants contend that plaintiff’s case “rests on multiple pleadings

that directly contradict [p]laintiff’s own testimony and documents, proving there is no

merit to the claims[.]” Mot. 7. Specifically, defendants argue that (1) plaintiff’s complaints

prior to the operative complaint—the SAC; (2) plaintiff’s proposed third amended

complaint;6 and (3) plaintiff’s state court complaint, all contain “sworn factual

statements” that are “in conflict” thus making the instant action “untenable.” Mot. 5–6.

5 In their Motion, defendants also seek to preclude plaintiff’s expert witnesses on the

grounds that plaintiff failed to timely disclose them. Mot. 22. However, as plaintiff

explains in his Opposition, “[p]laintiff has not retained any experts in this matter” and

defendants apparently moved “to exclude a non-existent expert.” Opp’n 22. Therefore,

the Court deems the branch of defendants’ Motion seeking to preclude expert witnesses

to be moot.

6 Plaintiff moved for leave to file a third amended complaint to include an additional

claim for breach of contract. See Mem. of Law in Supp. of Pl.’s Mot. to File a Third Am.

Compl. 1, ECF No. 39-1. By report and recommendation (“R&R”) dated January 13, 2025,

Magistrate Judge Robert M. Levy recommended denying plaintiff’s motion on the

grounds that permitting plaintiff to amend his complaint a third time, months after the

close of discovery, “would cause undue prejudice to defendants.” R&R 4. Judge Levy

further concluded that plaintiff’s proposed amendment would be futile in light of

plaintiff’s failure “to plead facts sufficient to support a facially plausible breach of contract

claim.” R&R 5. The undersigned adopted the R&R in its entirety and denied plaintiff’s

motion on January 31, 2025. Mem. & Order, ECF No. 42.

Second, defendants assert that ZAD “denies it was plaintiff’s employer” under the FLSA

and the NYLL because “[p]laintiff was at most an occasional worker who was paid on a

project basis.” Mot. 14. Third, defendants contend that plaintiff’s documentary evidence

“disprove[s]” that they violated the FLSA and the NYLL. Mot. 12. In particular, defendants

argue that paychecks issued to plaintiff “refute” his claim that he was not paid the

minimum wage or overtime wages. See Mot. 4. Finally, defendants argue that plaintiff’s

FLSA claims do not fall within the applicable statute of limitations. See Mot. 14–16.

Defendants also urge the Court to decline to exercise supplemental jurisdiction over

plaintiff’s NYLL claims because the Court “is expected to dismiss any claims relating to

the FLSA,” and thus “[t]his matter is more appropriately adjudicated in New York

Courts.” Mot. 13. As set forth below, because the Court declines to dismiss all of plaintiff’s

FLSA claims, it continues to exercise supplemental jurisdiction over plaintiff’s state law

claims. Accordingly, the Court addresses defendants’ arguments for summary judgment

as to each of plaintiff’s claims.

I. Factual Inconsistencies

At the outset, the Court rejects defendants’ invitation to consider nonoperative

pleadings, such as plaintiff’s proposed third amended complaint and prior complaints in

this action, in determining whether plaintiff raises a triable issue of fact. Summary

judgment concerns admissible evidence in the record. See BMaddox Enters. LLC v. Milad

Oskouie, Osko M Ltd., No. 17-cv-01889, 2021 WL 3675072, at *5 (S.D.N.Y. Aug. 18, 2021).

And, as a general matter, “allegations in a pleading are not considered affirmative

evidence with respect to a motion for summary judgment.” Williams v. Noel, No. 16-cv-

02188, 2022 WL 4292229, at *3 n.5 (S.D.N.Y. Sept. 16, 2022). While it’s true that this

principle does not apply to verified pleadings, that is, a complaint whose contents are

sworn to be true under penalty of perjury, see id., none of the complaints filed in this

action were verified, see Compl. 20, ECF No. 1; First Am. Compl. 20, ECF No. 13; SAC 21;

Proposed Third Am. Compl. 31, ECF No. 39-6. See also Brandon v. Kinter, 938 F.3d 21,

26 n.5 (2d Cir. 2019) (“[A]llegations in the complaint can be considered as evidence for

summary judgment purposes” only where the complaint has been “sworn under penalty

of perjury”); Concepts NREC, LLC v. Qui, No. 20-cv-00133, 2025 WL 3012209, at *7 (D.

Vt. Oct. 28, 2025) (“Unless a pleading is verified, it would be error for a court to rely on

the allegations in the pleading as evidence on summary judgment.”). Thus, defendants’

attempt to frame plaintiff’s complaints in this action as “sworn pleadings” containing

“sworn statements” is both incorrect and unavailing. Mot. 11.

Defendants also highlight allegations in a verified complaint filed by plaintiff in a

state court personal injury action–concerning events unrelated to the instant action and

filed against a nonparty—as well as “sworn factual statements” in certain of plaintiff’s

discovery responses. See Mot. 4–5. Defendants assert that the various “sworn factual

statements are in conflict,” Mot. 6, thus demonstrating a “lack of credible claims,” Mot. 5.

But this argument fails on its own terms at the summary judgment stage because

“[c]redibility assessments, choices between conflicting versions of the events, and the

weighing of evidence are matters for the jury, not for the court on a motion for summary

judgment.” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). Put differently, whatever

“material differences” exist in the record pertaining to “when [p]laintiff worked, how

much he was paid, and in what capacity,” Mot. 4, such differences are proper fodder for

cross-examination at trial, not a basis for the court to award summary judgment. See

Karatzas v. Herricks Union Free Sch. Dist., No. 15-cv-02888, 2017 WL 3084409, at *20

(E.D.N.Y. July 18, 2017) (“[T]he mere existence of inconsistencies in the record does not

provide a proper basis to grant summary judgment[.]”); Thomas v. City of New York, No.

09-cv-03162, 2010 WL 5490900, at *9 (S.D.N.Y. Dec. 22, 2010) (“Discrepancies in a

party’s testimony are not properly resolved on a motion for summary judgment.”); see

also Butler v. Gonzalez, No. 09-cv-01916, 2010 WL 3398150, at *10 (S.D.N.Y. Aug. 26,

2010) (explaining that inconsistency between pleadings and testimony may be “useful for

impeachment purposes at trial, but it is not grounds for granting [the defendants]

summary judgment”).

II. FLSA Coverage

Defendants argue that they are entitled to summary judgment because plaintiff is

not covered by the FLSA’s provisions. See Mot. 14. Specifically, “ZAD denies [that] it was

[p]laintiff’s ‘employer’ under the definition in the FLSA.” Mot. 14. Defendants contend

that plaintiff was only “an occasional worker who was paid on a project basis,” Mot. 14,

i.e., an independent contractor, and thus he is not considered ZAD’s “employee” for

purposes of the FLSA. Mot. 14. Defendants also argue that “there has been no evidence

that any of the individual defendants had any liability to [] [p]laintiff[] for [his] FLSA

claim[].” Mot. 14.

A. Plaintiff’s Employee Status

The FLSA’s minimum and overtime wage protections apply “only to employees,

not to independent contractors.” Vicente v. Ljubica Contractors LLC, No. 18-cv-00419,

2025 WL 100897, at *5 (S.D.N.Y. Jan. 14, 2025) (quoting Glatt v. Fox Searchlight

Pictures, Inc., 811 F.3d 528, 534 (2d Cir. 2016)). Pursuant to the FLSA, “employee” is

“broadly defined as . . . any individual employed by an employer.” Jimenez v. Green Olive

Inc., 744 F. Supp. 3d 221, 246 (E.D.N.Y. 2024) (citing 29 U.S.C. § 203(e)(1)). The question

of whether an employee-employer relationship exists “is one of economic reality.” Velu v.

Velocity Express, Inc., 666 F. Supp. 2d 300, 305 (E.D.N.Y. 2009).

In assessing whether a worker is an employee or independent contractor for

purposes of the FLSA, courts look to various factors including: “(1) the degree of control

exercised by the employer over the worker[], (2) the worker[’s] opportunity for profit or

loss and their investment in the business, (3) the degree of skill and independent initiative

required to perform the work, (4) the permanence or duration of the working relationship,

and (5) the extent to which the work is an integral part of the employer’s business.” Brock

v. Superior Care, Inc., 840 F.2d 1054, 1058–59 (2d Cir. 1988); see also Kalloo v.

Unlimited Mech. Co., 977 F. Supp. 2d 187, 200 (E.D.N.Y. 2013). The forgoing factors are

not exhaustive, nor is any single factor dispositive, as the economic reality test

encompasses the “totality of the circumstances.” Brock, 840 F.2d at 1059.

Ultimately, the question is “whether the putative employee is economically

dependent on the putative employer.” Velu, 666 F. Supp. at 306. Put differently, the

central inquiry is whether, as a matter of economic reality, “the worker[] depend[s] upon

someone else’s business for the opportunity to render service or [is] in business for

themselves.” Brock, 840 F.2d at 1059; see also Vicente, 2025 WL 100897, at *5 (“The

basic question is whether, under the totality of the circumstances and as a matter of

economic reality, the workers depend upon someone else’s business for the opportunity

to render service, in which case they are employees, or whether the workers are in

business for themselves, and thus independent contractors.”) (quoting Saleem v. Corp.

Transp. Grp., 854 F.3d 131, 139 (2d Cir. 2017)). Because this inquiry is fact-intensive, the

determination of employment status is “rarely suitable for summary judgment.” Jianjun

Chen v. 2425 Broadway Chao Rest., LLC, No. 16-cv-05735, 2019 WL 1244291, at *9

(S.D.N.Y. Mar. 18, 2019); Brock, 840 F.2d at 1059 (explaining that “[t]he existence and

degree of each factor” of the economic reality test “is a question of fact while the legal

conclusion to be drawn from those facts—whether workers are employees or independent

contractors—is a question of law”).

To support their contention that plaintiff was an independent contractor,

defendants point to paychecks plaintiff received from other auto service stations during

the period of plaintiff’s alleged employment at ZAD, and argue that this demonstrates

plaintiff only worked at ZAD “when he was not working at other jobs.” Mot. 14.

Defendants also assert, without citing to any record evidence, that plaintiff set his own

work schedule, used his own tools, was never “terminated” from ZAD, and only worked

for defendants “when there were projects for him and he was available.” Mot. 14.

Defendants fail to demonstrate that, as a matter of law, plaintiff was an

independent contractor for purposes of the FLSA.7 First, evidence in the record indicates

that there are triable issues of fact with respect to the “existence and degree” of certain of

the economic reality test factors. Brock, 840 F.2d at 1059. For instance, as to the degree

of control factor, although defendants assert that plaintiff “worked on his own schedule,”

7 Defendants’ argument on this score also fails because their briefing does not

“contain any meaningful legal argument, with supporting cases and other authorities, as

to whether [defendants] come within the definition of employer under the FLSA and

NYLL.” Chui v. Am. Yuexianggui of Li LLC, No. 18-cv-05091, 2021 WL 4482656, at *2

(E.D.N.Y. July 26, 2021), report and recommendation adopted, 2021 WL 4480736

(E.D.N.Y. Sept. 30, 2021). Indeed, defendants do not cite a single legal authority in either

their Motion or Reply in support of their argument that they were not “employers” under

the FLSA or the NYLL, nor do they address any of the factors relevant to whether plaintiff

was an employee or independent contractor under the FLSA. See Mot. 14; Reply 10; see

also Borowski v. Mordino, No. 16-cv-00999, 2020 WL 6083425, at *1 (W.D.N.Y. Oct. 15,

2020) (“It is not enough merely to mention a possible argument in the most skeletal way,

leaving the court to do counsel’s work . . . and put flesh on its bones.”) (quoting United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

Mot. 14, plaintiff’s deposition testimony suggests otherwise, see, e.g., Pl.’s Tr. 122:14–25

(testifying that the days he was “absent from the business” was due to defendants sending

plaintiff home because there was “not a lot of business in the store”). See also Vicente,

2025 WL 100897, at *5 (reasoning that “factual disputes as to the degree of control [the]

[d]efendants exercised over [the] [p]laintiffs’ schedules and the manner in which [the]

[p]laintiffs performed their work . . . suggest[ed] [that] summary judgment [wa]s

improper”).

There is also a genuine dispute as to the permanence and duration of the parties’

working relationship. According to defendants, plaintiff was “[l]ike a filler” who would

come to ZAD to help “finish some jobs” when the store had extra work. Anthony Tr.

23:23–25. Thus, according to defendants, plaintiff was not working consistently at ZAD

until sometime in 2022. Anthony Tr. 31:6-7. But according to plaintiff, throughout his

tenure at ZAD—from 2018 through 2022, see Counter 56.1 ¶ 4—his work schedule was

Monday through Saturday at full-time employment, see Pl.’s Tr. 90:20–92:6.

Additionally, while there is evidence that plaintiff did not exclusively and continuously

work at ZAD during the entire alleged period of employment, see Counter 56.1 ¶¶ 7–10—

which weighs in favor of finding that plaintiff was an independent contractor—there also

is no evidence that plaintiff had “a fixed employment period,” i.e., a start and end date, at

ZAD, which weighs in favor of finding that Kasseris was an employee, Cox v. German

Kitchen Ctr. LLC, No. 17-cv-06081, 2023 WL 8648839, at *7 (S.D.N.Y. Dec. 14, 2023).

See also Saleem v. Corp. Transp. Grp., Ltd., 52 F. Supp. 3d 526, 543 (S.D.N.Y. 2014)

(“Generally speaking, independent contractors often have fixed employment periods and

transfer from place to place as particular work is offered to them, whereas employees

usually work for only one employer and such relationship is continuous and of indefinite

duration.”) (quoting Baker v. Flint Eng’g & Const. Co., 137 F.3d 1436, 1442 (10th Cir.

1998)); Vicente, 2025 WL 100897, at *6 (concluding that “pieces of the record point[ed]

in different directions as to [the permanence and duration] factor” where there was

testimony suggesting that the putative employee worked “on a per-job basis with no

obligation to continue” but there was also testimony suggesting that the worker’s

relationship with the company “was ongoing and exclusive”).

These disputes as to plaintiff’s schedule and the permanence and duration of his

working relationship with defendants preclude summary judgment. See Browning v.

Ceva Freight, LLC, 885 F. Supp. 2d 590, 598 (E.D.N.Y. 2012) (explaining that a court may

determine whether a worker should be categorized as an independent contractor or

employee only “when there are no disputed issues of material fact”).

Moreover, there is sufficient evidence in the record such that a reasonable juror

could conclude that plaintiff was an employee under the FLSA. For example, there is

evidence that plaintiff was given tasks and orders, including instructions as to “what work

. . . needed to be done” at ZAD each morning that he worked. Anthony Tr. 38:20–25.

Additional evidence demonstrates that plaintiff was supervised while working at ZAD,

and was provided supplies or materials needed to complete certain projects. See Anthony

Tr. 38:22–25 (“I would check on [plaintiff] sporadically, and if he needed any supplies or

materials, he would come and tell me.”). A letter dated March 27, 2018, on ZAD letterhead

expressly states that plaintiff was “currently employed . . . full time” at ZAD. See Decl. of

Derrick Storms Ex. 7, ECF No. 50-7. Plaintiff was paid an hourly wage for his work at

ZAD. See Anthony Tr. 37:9–14. And plaintiff’s work as an auto body repair man was

integral to ZAD’s business. Indeed, evidence indicates that plaintiff was “assigned to all

body shop duties regarding vehicle damage” at ZAD—an automotive body and repair

shop. Pl.’s Tr. 141:16–22; see also Anthony Tr. 42:19–43:6. Construing this evidence in

the light most favorable to plaintiff, the Court finds that a rational juror could conclude

that plaintiff was a ZAD employee. See Kalloo, 977 F. Supp. 2d at 202 (concluding that

the plaintiff was an employee and not an independent contractor under the FLSA based

on the totality of the circumstances, including because the plaintiff “earned a hourly rate,”

“worked when and where [the] defendants told him to work,” “worked for [the]

defendants for nearly two consecutive years,” “and [the plaintiff’s] work as an HVAC

mechanic was integral to [the] defendants’ HVAC systems services”).

Put differently, the Court cannot conclude, based on the evidence in the record,

that plaintiff was in business for himself as opposed to “depend[ent] upon [ZAD] for the

opportunity to render service[.]” Brock, 840 F.2d at 1059. Indeed, plaintiff testified that

although defendants did not pay him at the agreed-upon wage, he nevertheless continued

to work at ZAD because he “was in need” and “needed money to pay [his] bills.” Pl.’s Tr.

120:7–10; see also Pl.’s Tr. 49:13–18 (testifying that he accepted pay below the agreed-

upon wage because he “had [a] need for work”).

For this reason, defendants’ argument that plaintiff “worked for other businesses

and himself” at various points during the alleged period of employment does not compel

a different conclusion. Mot. 14. Although it is true that “transient workers who typically

work for several employers are more like independent contractors than employees,” that

fact alone is not dispositive. Cox, 2023 WL 8648839, at *7; see also Brock, 840 F.2d at

1060 (“With respect to permanence of the working relationship, the record indicates that

the [plaintiffs] are a transient work force. . . . Nevertheless, th[is] fact[] [is] not dispositive

of independent contractor status.”). This is so because the “ultimate concern” of the

economic reality test is whether, in view of the totality of the circumstances, the worker

depends on someone else’s business or are in business for themselves. Brock, 840 F.2d at

1059. And here, plaintiff adduces evidence that he depended on ZAD in order to render

auto body repair services for nearly the entire period of alleged employment. See Pl.’s Tr.

18:23–19:2 (“My main work was with [ZAD] . . . I don’t think I worked anywhere else, but

if by chance some other work would be available I would take it because I was not making

a lot of money, or enough money.”). Therefore, the Court cannot conclude that plaintiff

was in business for himself, and defendants are not entitled to summary judgment on the

grounds that plaintiff was an independent contractor—and that ZAD is not an

“employer”—for purposes of the FLSA. See Brock, 840 F.2d at 1061; see also Ansoumana

v. Gristede’s Operating Corp., 255 F. Supp. 2d 184, 192 (S.D.N.Y. 2003) (reasoning that

delivery workers were “as a matter of law . . . employees, [and] not independent

contractors” where it was “clear, from the economic reality and the totality of

circumstances, that the delivery workers depend[ed] upon the . . . defendants for the

opportunity to sell their labor and [we]re not in any real sense in business for

themselves”).

B. Individual Defendant Liability

Defendants also argue that plaintiff fails to present evidence demonstrating that

any of the individual defendants should be held individually liable under the FLSA. Mot.

14. In order to be held liable as an employer under the FLSA, “an individual defendant

must possess control over a company’s actual operations in a manner that relates to a

plaintiff’s employment.” Irizarry v. Catsimatidis, 722 F.3d 99, 109 (2d Cir. 2013). In

addition to the economic reality test distinguishing independent contractors and

employees, the Second Circuit “has articulated an economic reality test to determine

whether any particular individual is an employer for the purposes of the FLSA.” Ramos

v. Guaba Deli Groc. Corp., No. 20-cv-04904, 2021 WL 5563714, at *6 (S.D.N.Y. Nov. 29,

2021); see also Chui, 2021 WL 4482656, at *2 (explaining that “the Second Circuit has set

forth various tests and factors to determine whether a party qualifies as an employer

within the meaning of the FLSA and NYLL,” and that “[t]he appropriate test to apply

depends on the circumstances of the case and the relationship among the alleged

employers”). Courts look to whether the individual: “(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” (the “Carter” factors). Carter v. Dutchess Comm. Coll., 735 F.2d 8,

12 (2d Cir. 1984); see also Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.

1999). None of the Carter factors are dispositive; the “inquiry is a totality-of-the-

circumstances approach[.]” Ramos, 2021 WL 5563714, at *6 .

In addition to the Carter factors, courts “examine[] whether the individual

exercised authority over management, supervision, and oversight of the employer’s

affairs in general[.]” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 352 (E.D.N.Y.

2015). Ultimately, the “key inquiry in determining employer status is whether a defendant

possessed operational control over the plaintiff-employees.” Rafter v. Everlast Sign &

Serv. Inc., No. 21-cv-04588, 2025 WL 2240446, at *21 (E.D.N.Y. Aug. 6, 2025). Thus, a

plaintiff must provide sufficient evidence showing that the individual defendant exercised

“control over employees.” Tapia v. Blch 3rd Ave LLC, 906 F.3d 58, 61 (2d Cir. 2018). In

other words: “[the defendant’s] role within the company, and the decisions it entail[ed],

directly affect[ed] the nature or conditions of the employees’ employment.” Id.

Plaintiff seeks to recover against ZAD’s current and former owner-operators:

Anthony Koulizakis and Nikolas Koulizakis, respectively. See Opp’n 15–16. For the

reasons set forth below, the Court finds that plaintiff adduces sufficient evidence such that

a reasonable juror could conclude that Anthony was plaintiff’s employer for purposes of

the FLSA. However, plaintiff fails to produce sufficient evidence as to Nikolas’s employer

status.

i. Anthony Koulizakis

Contrary to defendants’ assertion, see Mot. 14, plaintiff does present evidence

demonstrating that Anthony was plaintiff’s employer for purposes of the FLSA. First,

evidence suggests that Anthony had the power to hire employees. See Anthony Tr. 20:17–

23 (“I didn’t have full-time work for [plaintiff], but I gave him some jobs to do.”). Second,

Anthony set and provided ZAD employees’ work schedules, including by setting plaintiff’s

schedule. See Anthony Tr. 10:24–11:9, 39:12–14. Third, Anthony set plaintiff’s rate of pay

and “was in charge of payroll” at ZAD. Anthony Tr. 24:6–9, 29:19–24; see also Pl.’s Tr.

53:22–25 (“When I went to the business of Mr. Zad, Anthony, his agreement with me was

he was going to be paying me $37.50, five days, 40 hour work.”). Finally, although it’s

unclear whether Anthony maintained employment records at ZAD, there is evidence

suggesting that he was responsible for issuing ZAD employees certain tax forms. See

Anthony Tr. 12:3–12. Thus, at minimum, three Carter factors weigh in favor of finding

that Anthony was plaintiff’s employer, and summary judgment in defendants’ favor is

unwarranted. See Gutierrez v. Skyview Car Wash, Inc., No. 22-cv-00755, 2024 WL

1332632, at *7 (E.D.N.Y. Mar. 28, 2024) (reasoning that there was “no basis to conclude

that [the individual defendant’s] status as an employer [wa]s beyond material dispute”

where two Carter factors weighed in favor of finding the individual defendant was an

employer, and the other two Carter factors were neutral).

Moreover, the record indicates that Anthony “exercised authority over

management, supervision, and oversight of [ZAD’s] affairs in general.” Ethelberth, 91 F.

Supp. 3d at 352–53. Anthony is ZAD’s president and sole corporate officer—and has been

so for the entire duration of plaintiff’s employment. Anthony Tr. 7:18–8:2. Anthony was

responsible for payroll and oversaw the amount for which paychecks would be issued.

Anthony Tr. 29:19–24. Anthony testified that he was plaintiff’s supervisor at ZAD and

would check in on plaintiff and “tell him what work . . . needed to be done.” Anthony Tr.

38:17–21. Thus, Anthony’s “general authority” over ZAD’s affairs, together with “the

totality of the circumstances[,] establishes that [he] may be held liable as an employer

under the FLSA.” Ethelberth, 91 F. Supp. at 353. Accordingly, defendants’ motion for

summary judgment as to Anthony’s employer status under the FLSA is DENIED. See id.

ii. Nikolas Koulizakis

The employer status of ZAD’s former owner-operator, Nikolas, stands on different

footing. Anthony Tr. 7:11–13. At some point prior to plaintiff’s employment, Nikolas

transferred ownership of ZAD to Anthony, his son. See Anthony Tr. 7:5–17; see also

Anthony Tr. 8:8–11. Plaintiff argues that Nikolas is an employer under the FLSA because

“he held an ownership interest in . . . and possessed operational control over significant

functions of ZAD.” Opp’n 15. Plaintiff also claims that Nikolas “had substantial control

over [the] working conditions . . . governing . . . [p]laintiff’s employment and

compensation.” Opp’n 15. Specifically, plaintiff asserts that Nikolas determined

employees’ wages, established schedules, and maintained employment records. Opp’n 15.

Plaintiff also points out that Nikolas “signed and issued paychecks at ZAD.” Opp’n 15.

Thus, in plaintiff’s view, this evidence establishes that Nikolas is an employer under the

FLSA. See Opp’n 15. The Court disagrees.

At the outset, the Court observes that many of plaintiff’s arguments as to Nikolas’s

employer status rely on allegations raised in the SAC. See Opp’n 15 (quoting SAC ¶¶ 8–9,

13); see also Opp’n 15 (“These pleadings sufficiently establish that the individual

[d]efendants are employers under the FLSA and the NYLL.”) (emphasis added). But as

explained above, allegations in an unverified complaint are not evidence and therefore

“provide no basis for opposing summary judgment.” Creighton v. City of New York, No.

12-cv-07454, 2017 WL 636415, at *45 n.47 (S.D.N.Y. Feb. 14, 2017); see also Hernandez

v. Coca Cola Refreshments USA, Inc., No. 12-cv-00234, 2013 WL 6388654, at *3

(E.D.N.Y. Dec. 6, 2013) (“[I]t is of course fundamental that allegations in a complaint are

not evidence that can defeat a motion for summary judgment.”) (citing Graham v.

Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)).

To the extent plaintiff does cite evidence in support of his position, some of the

evidence simply does not stand for the proposition which plaintiff suggests. For instance,

plaintiff cites to Anthony’s deposition testimony in support of his assertion that Nikolas

“determined the wages of employees, established the schedules, [and] maintained

employee records[.]” Opp’n 16 (citing Anthony Tr. 34:3–6). But the cited portion of the

transcript says nothing of the sort. In fact, as previously detailed, Anthony testified that

he was responsible for setting schedules and determining wages. See Anthony Tr. 10:24–

11:9, 24:6–9, 29:19–24, 39:12–14. Plaintiff is correct that Nikolas had the authority, and

in fact did, sign employee paychecks. Anthony Tr. 29:13–17; see also Decl. of Kevin

O’Donoghue Ex. I, ECF No. 49-11. However, Anthony disavowed the notion that Nikolas

was in charge of compensation or payroll. See Anthony Tr. 29:19–21. Anthony clarified

that Nikolas “issue[d] the checks in the amounts [Anthony] t[old] him[.]” Anthony Tr.

29:23–25. That is, the evidence supports the reasonable inference that Nikolas was not

involved in payroll except to the extent he signed pay checks as directed by his son, ZAD’s

owner-operator at the time of plaintiff’s employment. Thus, based on the circumstances

of the case, this evidence does not move the needle as to whether Nikolas was an employer

under the FLSA. See Salinas v. Starjem Rest. Corp., 123 F. Supp. 3d 442, 464 (S.D.N.Y.

2012) (explaining that “the fact that [the individual defendant] sign[ed] paychecks [wa]s

not probative” as to the defendant’s employer status because the defendant “only sign[ed]

paychecks because each check ha[d] to be signed by two of the [r]estaurant’s owners” and

the defendant was “otherwise not involved in employee compensation”).

The only other evidence propounded by plaintiff which bears on the Carter factors

is his statement that he “was hired by Anthony Koulizakis and Nikolas Koulizakis.” Pl.’s

Decl. ¶ 4.8 However, this statement is insufficient to raise a genuine dispute as to Nikolas’s

8 Defendants urge the Court to strike plaintiff’s declaration pursuant to the “sham

affidavit” rule because it contains “conveniently supplied” new facts for the purposes of

opposing defendants’ Motion. See Reply 6. “However, the sham affidavit rule applies

where factual allegations are made for the first time in the non-moving party’s affidavit

opposing summary judgment and that affidavit contradicts the non-moving party’s own

prior deposition testimony.” Bricklayers Ins. & Welfare Fund v. Job Opportunities for

Women, Inc., No. 16-cv-06935, 2019 WL 343243, at *4 n.7 (E.D.N.Y. Jan. 28, 2019)

(emphasis in original). Thus, the sham affidavit rule “does not apply if the statements are

not actually contradictory or the later sworn assertion addresses an issue that was not

thoroughly or clearly explored before.” Id. (quoting Brown v. Henderson, 257 F.3d 346,

252 (2d Cir. 2001)). Here, defendants fail to demonstrate that plaintiff’s declaration

introduces new facts or contradicts plaintiff’s deposition testimony. Indeed, the

declaration largely appears consistent with the testimony. Compare Pl.’s Tr. 49:22 (“I

worked 57 hours a week”), with Pl.’s Decl. ¶ 10 (“During the months I worked for ZAD . .

. I worked fifty-seven (57) hours each week[.]”). And some of the inconsistencies of which

defendants complain appear to be clarifications of otherwise unclear testimony. See e.g.,

Pl.’s Tr. 7:6–7 (testifying that he worked at ZAD between 2018 and 2022), 12:14–15

(testifying that he began working at ZAD in 2017); see also Pl.’s Decl. ¶ 2 (“I was an

employee at [ZAD] from January 2018 to December 2022.”). To that end, the Court is

mindful that plaintiff cannot read or speak English, only reads and speaks Greek, and that

his deposition was conducted through the assistance of an interpreter. Pl.’s Decl. ¶ 20; see

Pl.’s Tr. 4. And in any event, to the extent portions of plaintiff’s declaration are

inconsistent with plaintiff’s prior deposition testimony, the Court will simply disregard

employer status in light of the lack of other supporting evidence. Indeed, plaintiff does

not point the Court to any evidence showing that any of the other Carter factors weigh in

plaintiff’s favor. Specifically, plaintiff provides no evidence that Nikolas: (1) supervised

employee work schedules or work conditions; (2) determined the rate of payment; or (3)

maintained employment records. See Opp’n 15–16; see also Copantitla v. Fiskardo

Estiatorio, Inc., 788 F. Supp. 2d 253, 310 (S.D.N.Y. 2011) (concluding that Carter factors

did not weigh in favor of finding that the individual defendant was an employer under the

FLSA even where the defendant “mad[e] recommendations on hiring” because “[t]he

record [was] also devoid of evidence that [the defendant] had any role in controlling work

schedules, determining employee compensation, or maintaining employment records”);

Beng Khoon Loo v. I.M.E. Rest., Inc., No. 17-cv-025558, 2018 WL 4119234, at *7

(E.D.N.Y. Aug. 29, 2018) (concluding that no rational factfinder could find that the

individual defendant was an employer under the FLSA and the NYLL even if the plaintiff

supplied evidence sufficient to satisfy one of the Carter factors).

Moreover, plaintiff has adduced little to no evidence as to Nikolas’s “authority over

management, supervision, and oversight of [ZAD’s] affairs in general.” Ethelberth, 91 F.

Supp. 3d at 352–53. The record before the Court suggests that Nikolas’s role in ZAD’s

affairs after he transferred ownership to his son was limited to signing paychecks at his

son’s direction. See Anthony Tr. 29:23–25. Even in the light most favorable to plaintiff,

this evidence alone is insufficient to demonstrate a genuine dispute as to Nikolas’s

employer status. See Salinas, 123 F. Supp. at 464; see also Chen v. Lilis 200 W. 57th Corp.,

No. 19-cv-07654, 2023 WL 2388728, at *5 (S.D.N.Y. Mar. 7, 2023) (“[A]bsent other

those portions. See Mazzone-Trani v. Donohue Cecere Funeral Home, No. 08-cv-00060,

2010 WL 3282616, at *5 (E.D.N.Y. Aug. 13, 2010).

evidence of control, occasionally signing paychecks is not enough to trigger individual

liability.”) (collecting cases).9

Therefore, based on the record before the Court, no reasonable juror could

conclude that Nikolas’s “role within [ZAD], and the decisions it entail[ed], directly

affect[ed] the nature or conditions” of plaintiff’s employment.10 Tapia, 906 F.3d at 61.

Accordingly, defendants’ motion for summary judgment as to Nikolas’s individual

liability must be granted, and defendant Nikolas Koulizakis is hereby DISMISSED from

the case. See Apple, 2014 WL 5450030, at *10 (concluding that the individual defendants

were not employers under the FLSA and the NYLL as a matter of law because “all

meaningful decisions were made by the other defendants”); Wu v. Chang’s Garden of

9 For this reason, plaintiff’s reliance on Chuchuca v. Creative Customs Cabinets Inc.

for the proposition that “a corporate officer with operational control of a corporation’s

covered enterprise is an employer along with the corporation,” is unavailing. Opp’n 15

(quoting Chuchuca, No. 13-cv-02506, 2014 WL 6674583, at *7 (E.D.N.Y. Nov. 25, 2014)).

As that case makes clear, plaintiff must adduce sufficient evidence to support a reasonable

inference that a corporate officer had “operational control,” i.e., “controlled the terms and

conditions of plaintiff’s employment[.]” Id., at *8. And as set forth above, plaintiff fails to

present evidence demonstrating that Nikolas controlled the terms of plaintiff’s

employment.

10 In light of this conclusion, the Court also finds that Nikolas was not an “employer”

for purposes of the NYLL. See Sevilla v. House of Salads One LLC, No. 20-cv-06072, 2022

WL 954740, at *3 n.7 (E.D.N.Y. Mar. 30, 2022) (“The NYLL's definition of ‘employer’ is

identical to the definition under the FLSA.”); Velarde v. GW GJ, Inc., 914 F.3d 779, 783

(2d Cir. 2019) (“We have observed elsewhere that the FLSA and NYLL define employee

in nearly identical terms. Accordingly, we construe the NYLL definition as the same in

substance as the definition in the FLSA.”) (2d Cir. 2019); see also Apple v. Atl. Yards Dev.

Co., No. 11-cv-05550, 2014 WL 5450030, at *6 n.4 (E.D.N.Y. Oct. 27, 2014) (concluding

that the individual defendants were not employers under the FLSA and the NYLL

pursuant to the same analysis and observing that “[t]he NYLL’s definitions are nearly

identical to the FLSA’s”); cf. Gao v. Jian Song Shi, No. 18-cv-02708, 2021 WL 1949275,

at *8 (E.D.N.Y. Apr. 30, 2021) (“A finding that an individual defendant is an employer

under FLSA determines that she is an employer under NYLL.”), report and

recommendation adopted sub nom., Bin Gao v. ABC Corp., 2021 WL1946322 (May 15,

2021).

Storrs, LLC, No. 08-cv-00746, 2010 WL 918079, at *6 (D. Conn. Mar. 11, 2010) (granting

summary judgment in the individual defendant’s favor and concluding that the defendant

“did not have a meaningful role to justify imposing FLSA liability” because the defendant

“lack[ed] [an] ownership interest or position as a decision maker” and only played a

“limited” role in supervising and instructing workers); see also Irizarry, 722 F.3d at 107

(“[A] company owner, president, or stockholder must have at least some degree of

involvement in the way the company interacts with employees to be a FLSA employer.”).

III. Minimum Wage and Overtime Claims

Apart from their argument that the protections afforded by the FLSA are

inapplicable to plaintiff, defendants also seek summary judgment on plaintiff’s overtime

and minimum wage claims on the basis that those claims are refuted by documentary

evidence in the record. See Mot. 12. Specifically, defendants argue that paychecks

produced by plaintiff “flatly dispute[]” the notion that he was paid below the minimum

wage and was not paid overtime. Mot. 13. Defendants argue that “[n]o checks support a

rate below the minimum [wage],” Mot. 12, and in fact, the checks show that plaintiff “was

paid in excess of minimum wage” during the “limited project work he performed at . . .

[d]efendant[s’] shop during various times in 2018 and 2022.” Mot. 14 (emphasis in

original). Defendants do not meaningfully address the elements of plaintiff’s overtime or

minimum wage claims pursuant to the FLSA or the NYLL, nor do defendants raise

arguments tailored to the differences in minimum wage and overtime claims. Instead,

they argue that plaintiff “has failed to state a claim” for unpaid minimum wages or

overtime pay based on the paychecks in the record. Mot. 14. The Court begins by analyzing

plaintiff’s overtime claims before turning to his minimum wage claims.

A. Unpaid Overtime (Counts I and II)

To sustain a claim for unpaid overtime wages, a plaintiff must prove that he

performed overtime work “for which he was not properly compensated, and that the

employer had actual or constructive knowledge.” Kuebel v. Black & Decker Inc., 643 F.3d

352, 361 (2d Cir. 2011); see also Tabriz v. Taste & Sabor LLC, 577 F. Supp. 3d 314, 327

(S.D.N.Y. 2021) (“A successful claim for unpaid overtime requires proof that the plaintiff

performed the work, with the employer’s actual or constructive knowledge, and was not

properly compensated.”), report and recommendation adopted, 2022 WL 282918 (Jan.

31, 2022). The FLSA and the NYLL both require covered employers to pay covered

employees’ wages at a rate of one and a half times the employees’ regular rate of pay for

any hours worked above 40 hours in a given workweek. See Vasquez v. NS Luxury

Limousine Serv., Ltd., No. 18-cv-10219, 2021 WL 1226567, at *11 (S.D.N.Y. Mar. 31, 2021)

(citing 29 U.S.C. § 207(a)(1)); Feng v. Kelai Corp., 727 F. Supp. 3d 423, 448 (S.D.N.Y.

2024) (quoting 12 N.Y.C.R.R. § 146-1.4)). Moreover, the NYLL “adopts th[e] same

standard” as the FLSA for unpaid overtime claims. Nakahata v. N.Y.-Presbyterian

Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013). Accordingly, “[c]ourt[s] apply the

same analysis for FLSA and [NYLL] overtime claims[.]” Alvarez v. Michael Anthony

George Const. Corp., 15 F. Supp. 3d 285, 291 (E.D.N.Y. 2014); see also Santillan v. Henao,

822 F. Supp. 2d 284, 292 (E.D.N.Y. 2011) (explaining that “New York’s Labor Law is the

state analogue to the federal FLSA” and that, aside from the FLSA’s requirement for a

nexus with interstate commerce and an employer’s required amount of sales, the NYLL

“otherwise mirrors” the FLSA).

For purposes of summary judgment, “an employee need only present sufficient

evidence to show the amount and extent of the uncompensated work as a matter of just

and reasonable inference” if the employer’s records are “inaccurate or inadequate.”

Alvarez, 15 F. Supp. at 291 (quoting Kuebel, 643 F.3d at 362). This is so because an

employer’s “fail[ure] to comply with [its] record keeping obligations” under the FLSA or

the NYLL “should not work to penalize a plaintiff.” Francois v. Mazer, No. 09-cv-03275,

2012 WL 653886, at *5 (S.D.N.Y. Feb. 28, 2012); see also Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 687 (1946) (“When the employer has kept proper and accurate

records the employee may easily discharge his burden by securing the production of those

records. But where the employer’s records are inaccurate or inadequate and the employee

cannot offer convincing substitutes a more difficult problem arises. The solution,

however, is not to penalize the employee by denying him any recovery on the ground that

he is unable to prove the precise extent of uncompensated work.”). The Second Circuit

has explained that “an employee’s burden in this regard is not high.” Kuebel, 643 F.3d at

362. Indeed, an employee may meet this burden “through estimates based on his own

recollection.” Id. If the employee meets his burden, “the burden then shifts to the

employer to come forward 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.” Alvarez, 15 F. Supp. at 291 (quoting Mt. Clemens, 328 U.S. at 687–68)).

Here, plaintiff supplies sufficient evidence to support a reasonable inference that

he worked uncompensated overtime hours. At the outset, the Court notes that the

evidence shows that defendants failed to keep accurate and adequate records as to

plaintiff’s hours worked. In fact, Anthony testified that ZAD did not issue plaintiff wage

statements, pay stubs, wage notices, nor did defendants otherwise “keep track of Mr.

Kasseris’s hours” during his tenure at ZAD. Anthony Tr. 14:23–16:9. The Court must

consider the evidence plaintiff presents as to his hours worked in light of this context. See

Francois, 2012 WL 653886, at *5 (“Here, there is no indication that [the] defendants kept

adequate records. This Court must then consider the limited evidence that does exist

against this backdrop.”).

Plaintiff’s primary evidentiary support for his overtime claim rests upon his

deposition testimony and a declaration he submitted in connection with his Opposition.

In particular, plaintiff testified that he worked 57 hours per week throughout his tenure

at ZAD. Pl.’s Tr. 49:19–22, 103:14–16; see also Pl.’s Decl. ¶ 10. Plaintiff further testified

that his hours at ZAD were “Monday to Friday . . . 8:00 A.M. to 6:00 P.M.,” and on

Saturday from “8:00 A.M. to 3:00 P.M.” Pl’s Tr. 61:14–19; see also Pl.’s Decl. ¶ 11. In other

words, plaintiff testified that his regular work schedule amounted to ZAD’s hours of

operation. See Counter 56.1 ¶ 16. Moreover, plaintiff testified that he was repeatedly not

paid overtime during his employment. Pl.’s Tr. 92:15–17, 118:1–4, 125:13–14; see also Pl.’s

Decl. ¶ 13.

This evidence is sufficient to satisfy plaintiff’s prima facie burden, particularly in

light of defendants’ lack of records. See Villada v. Grand Canyon Diner, No. 22-cv-02782,

2024 WL 3875778, at *6 (E.D.N.Y. Aug. 19, 2024) (concluding that genuine issue of fact

existed as to overtime claims even where “[t]he evidence that [the] [p]laintiff worked

more than forty hours per week consist[ed] solely of her testimony”); see also Lassen v.

Hoyt Livery, Inc., 120 F. Supp. 3d 165, 173 (D. Conn. 2015) (“The Second Circuit . . . has

held that a plaintiff’s declaration that he worked more than forty hours just about every

week and averaged from one to five hours of uncompensated overtime every week, was

sufficient for a reasonable jury to conclude that he has shown the amount of his

uncompensated work as a matter of just and reasonable inference.”) (quoting Kuebel, 643

F.3d at 562)); accord Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 3d 372,

381 (E.D.N.Y. 2012) (“Due to the lack of adequate records maintained by [the]

[d]efendants . . . [the] [p]laintiffs need only submit sufficient evidence to show the amount

and extent of the hours worked as a matter of just and reasonable inference. A plaintiff

may meet this burden by relying solely on his own recollection.”).

Because plaintiff has met his burden, “[d]efendants have the burden of coming

forth with evidence of the precise amount of work performed or with evidence to negat[e]

the reasonableness of the inference to be drawn from the employees’ evidence.” Alvarez,

15 F. Supp. at 294. They fail to do so. Defendants largely attempt to negate the inference

by attacking plaintiff’s credibility. See, e.g., Mot. 8 (“Plaintiff . . . said he would produce

checks showing his payments from 2018, 2019, and 2020[,] [h]e did not do so because he

is not telling the truth[.]”); Mot. 11 (“Plaintiff’s credibility must be questioned[.]”). But

this is, of course, an improper consideration for the Court at the summary judgment stage.

See Alvarez, 15 F. Supp. at 294 (“[B]road, conclusory attacks on the credibility of a witness

will not, by themselves, present questions of material fact, and a party’s uncontroverted

assertions will not be disregarded without affirmative evidence warranting an adverse

inference.”) (quoting Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d

257, 261–62 (2d Cir. 2005)); see also Fischl, 128 F.3d at 55.

Defendants also gesture to the paychecks in the record and assert that they “show

that [p]laintiff was paid time and one half . . . on the rare occasions where [p]laintiff

worked full weeks or had overtime.” Mot. 11. Defendants appear to suggest that because

some paychecks are for different amounts, this necessarily shows that plaintiff was paid

overtime for the weeks that he in fact worked overtime. That is, plaintiff was compensated

for overtime as reflected by the paychecks for higher amounts. See Mot. 11.

This argument is unsupported by the evidence in the record. For one, the

paychecks themselves contain no information indicating the number of hours

compensated, and defendants do not cite a single other piece of record evidence to

support their argument that the higher paychecks necessarily include wages for overtime.

See generally Decl. of Kevin O’Donoghue Ex. I; see also Mot. 11. Second, plaintiff has

adduced evidence explaining the discrepancies in payments unrelated to overtime pay:

“when [defendants] saw that [plaintiff] felt [that they] w[ere] paying [him] too little

money, and [he] was about to leave, then [defendants] would increase and pay [him] a

little more[.]” Pl.’s Tr. 55:9–16. Finally, even if the larger paychecks reflect that plaintiff

was paid overtime on some occasions, plaintiff presents evidence that he worked overtime

every week as part of his regular work schedule. See Pl’s Tr. 61:14–19; see also Pl.’s Decl.

¶ 11. Thus, defendants’ argument amounts to a dispute over whether plaintiff in fact

worked overtime every week that he was employed as he so testified; in other words, “a

triable issue as to whether plaintiff worked overtime and, if so, how much.” Francois,

2012 WL 653886, at *5. Therefore, defendants fail to provide sufficient evidence negating

the reasonableness of the inference to be drawn from plaintiff’s evidence, and summary

judgment is not warranted. See id. (concluding that the plaintiff’s statement in her

“declaration submitted in opposition to th[e] [summary judgment] motion that she

regularly worked in excess of 40 and 50 hours” along with deposition testimony “raise[d]

a triable issue” on overtime claims); see also Severino v. 436 W. LLC, No. 13-cv-03096,

2015 WL 12559893, at *7 (S.D.N.Y. Mar. 19, 2025) (reasoning that “conflicting testimony”

of the plaintiff on the one hand and the individual defendants on the other was “more

than sufficient to create a genuine dispute of material fact as to whether [the plaintiff]

ever worked more than forty hours in a week”); Villada, 2024 WL 3875778, at *6 (same).

In sum, plaintiff raises a triable issue of fact as to whether he worked overtime

hours—and to what extent—and whether he was uncompensated for such hours.

Therefore, defendants’ motion for summary judgment as to plaintiff’s overtime claims

pursuant to the FLSA (Count I) and the NYLL (Count II) is DENIED.

B. Minimum Wage Violations (Counts III and IV)

To sustain his minimum wage claims, plaintiff must provide sufficient evidence

showing “that the amount of compensation [he] received result[ed] in a straight-time

hourly rate that is less than the applicable” minimum wage. Moncion v. Stephen

Sondheim Theater, No. 22-cv-01025, 2022 WL 889377, at *2 (S.D.N.Y. Mar. 25, 2022).

The applicable minimum wage under the FLSA is the federal minimum wage which was,

during the duration of plaintiff’s employment at ZAD, $7.25 per hour. Sanchez v. Ms.

Wine Shop Inc., 643 F. Supp. 3d 355, 370–71 (E.D.N.Y. 2022); see Pineda-Herrea v. Da-

Ar-Da, Inc., No. 09-cv-05140, 2011 WL 2133825, at *5 (E.D.N.Y. May 26, 2011) (“[F]or

non-overtime wages, the FLSA requires only that employers pay the minimum wage rates

set by federal law.”). The applicable minimum wage under the NYLL is New York State’s

minimum wage which was $13 per hour from December 1, 2017 through December 30,

2018, and $15.00 per hour from December 31, 2018 onward. Heras v. Metro. Learning

Inst., Inc., No. 19-cv-02694, 2025 WL 1166978, at *13 (E.D.N.Y. Feb. 28, 2025) (citing

N.Y. Lab. Law § 652); see also Savor Health, LLC v. Day, No. 19-cv-09798, 2022 WL

912236, at *6 (S.D.N.Y. Mar. 29, 2012).

Because the FLSA and the NYLL “are analytically nearly identical,” the minimum

wage claims under both statues may be analyzed together. Fangrui Huang v. GW of

Funding I, Inc., No. 17-cv-03181, 2019 WL 145528, at *4 (E.D.N.Y. Jan. 9, 2019); see also

Albertin v. Nathan Littauer Hosp. & Nursing Home, 537 F. Supp. 3d 243, 264 n.15

(N.D.N.Y. 2021) (“The analysis for minimum wage claims under NYLL mirrors that of

FLSA.”). The only relevant difference between the two claims here is that the “NYLL sets

its minimum hourly wage at an amount higher than FLSA’s floor.” Velarde, 914 F.3d at

783 n.5; see also Espinoza v. La Oficina Bar Corp., No. 20-cv-01237, 2022 WL 987429,

at *11 (E.D.N.Y. Mar. 1, 2022) (“The NYLL is quite similar to the FLSA in that it requires

employers to pay a minimum hourly wage to employees (albeit at a higher rate).”), report

and recommendation adopted, 2022 WL 985836 (Mar. 31, 2022).

Defendants again principally argue that summary judgment in their favor is

warranted based on the paychecks in the record. Defendants contend that these checks

“all show sporadic work and payment in excess of the minimum wage.” Mot. 6. As

previously discussed, the paychecks do not contain information as to plaintiff’s hourly

rate, nor the number of hours worked. Instead, they simply indicate an amount that

plaintiff was paid by ZAD on a particular date. See generally Decl. of Kevin O’Donoghue

Ex. I. Therefore, the probative value that the paychecks have on plaintiff’s minimum wage

claims, if any, turns on how many hours plaintiff worked in a particular week. By way of

illustration, ZAD issued plaintiff a check for $600 on March 8, 2022. Decl. of Kevin

O’Donoghue Ex. I at 17. If, for example, plaintiff worked at ZAD for 20 hours in that pay

period, his hourly rate would be $30 per hour, and he would have no minimum wage

claim. See Garcia Ramos v. DNC Food Serv. Corp., No. 19-cv-02967, 2020 WL 2832776,

at *7 (S.D.N.Y. June 1, 2020) (“[T]he regular hourly rate of pay of an employee is

determined by dividing his total remuneration for employment in any workweek by the

total number of hours actually worked by him in that workweek for which such

compensation was paid.”). Thus, whether the checks “disprove[],” Mot. 12, plaintiff’s

minimum wage claim depends on how many hours plaintiff worked at ZAD in each pay

period, which the parties dispute, see Pl.’s Decl. ¶ 10; Anthony Decl. ¶ 11.

However, this dispute does not necessarily preclude summary judgment in

defendants’ favor, at least not as to plaintiff’s FLSA minimum wage claim. The evidence

adduced by plaintiff indicates that he was paid “approximately $600.00 weekly for

working fifty-seven (57) hours in a week.” Pl.’s Decl. ¶ 13; see also Decl. of Kevin

O’Donoghue Ex. I at 17, 21. Plaintiff does not produce evidence that he worked more than

57 hours per week at any point during his tenure. Thus, even accepting plaintiff’s

statement that he worked 57 hours each week as true, his regular hourly rate of pay would

be more than $10 and exceed the applicable federal minimum wage. Therefore, as a

matter of law, plaintiff cannot state an FLSA minimum wage claim. See Abe v. Yamaguchi

& Friends, Inc., No. 22-cv-03164, 2024 WL 3875779, at *5 (E.D.N.Y. Aug. 20, 2024) (“An

employee cannot state a claim for a minimum wage violation unless his average hourly

wage falls below the federal minimum wage.”); see also Bin Gao v. Jian Song Shi, No. 18-

cv-02708, 2019 WL 3936810, at *8 (E.D.N.Y. Aug. 20, 2019) (granting the defendant

summary judgment as to minimum wage claims even when “constru[ing] the evidence in

the light most favorable to [the] plaintiff,” because the plaintiff’s deposition testimony

established that his alleged regular rate of pay exceeded the federal minimum wage).

This evidence does, however, preclude summary judgment as to plaintiff’s NYLL

minimum wage claim. This is so because plaintiff presents sufficient evidence such that a

reasonable juror could conclude that his hourly rate fell below New York State’s minimum

wage. Defendants attempt to resist this conclusion largely by reprising their arguments

as to plaintiff’s credibility and by relying on Anthony’s testimony that plaintiff’s “pay was

between $20–$21 hourly[.]” Mot. 11. But again, conflicting testimony as to how many

hours plaintiff worked—and, accordingly, what hourly rate the paychecks reflect—is to be

resolved by the trier of fact, not by the Court on a motion for summary judgment. See

Frost v. Lentex Co., LLC, No. 20-cv-05313, 2022 WL 17968058, at *7 (S.D.N.Y. Dec. 27,

2022) (“In light of this conflicting testimony, the [c]ourt cannot determine the number of

hours [the] plaintiff worked within the proper scope of his potential employment without

making a credibility determination, which would be improper at this stage. And because

ascertaining the number of hours plaintiff worked is necessary to determine whether his

compensation met or exceeded the relevant minimum wage thresholds, summary

judgment on plaintiff's minimum wage claims must be denied.”); Paguay v. Buona

Fortuna, Inc., No. 11-cv-06266, 2013 WL 3941088, at *4 (S.D.N.Y. July 31, 2013) (same).

Accordingly, defendants’ motion for summary judgment is granted as to plaintiff’s

FLSA minimum wage claim (Count III) and denied as to plaintiff’s NYLL minimum wage

claim (Count IV). Count III is hereby DISMISSED. Accord Jimenez v. W&M Servs. Inc.,

No. 22-cv-05061, 2025 WL 916921, at *3 (E.D.N.Y. Mar. 25, 2025) (dismissing FLSA

minimum wage claim with prejudice because the “[p]laintiff earned more than the federal

minimum wage,” but sustaining NYLL minimum wage claim because the plaintiff

plausibly alleged he was paid less than New York State’s minimum wage).

IV. Statute of Limitations

In addition to their arguments about the merits, the parties dispute which statute

of limitations applies to plaintiff’s FLSA claims. See Mot. 14–15; Opp’n 16–17. Generally,

a two-year statute of limitations applies for FLSA violations. See 29 U.S.C. § 255.

However, this period is extended to three years where an employer’s violations are found

to be “willful.” Id. “An employer willfully violates the FLSA when it either knew or showed

reckless disregard for the matter of whether its conduct was prohibited by the Act.” Young

v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009). Unsurprisingly, defendants

contend that plaintiff fails to meet his burden of “establishing willfulness,” and thus the

shorter statute of limitations applies. Mot. 15. On the other hand, plaintiff argues that he

has established that defendants were reckless, specifically because defendants failed “to

provide time sheets, wage and hour statements, [and] pay stubs[,]” Opp’n 16, and thus

the longer statute of limitations applies. Opp’n 16.

The Court need not decide which statute of limitations applies for four interrelated

reasons. First, plaintiff’s remaining federal claim—his FLSA overtime claim—is within the

two year statute of limitations. This action was commenced on February 9, 2023. See

Compl. And plaintiff presents sufficient evidence that a reasonable juror could conclude

he was not paid overtime wages throughout 2022. See Pl.’s Decl. ¶¶ 8, 13; see also Section

III.A. Therefore, plaintiff’s overtime claim is not completely time-barred irrespective of

which statute of limitations applies. Second, the statute of limitations for NYLL overtime

and minimum wage claims is six years, regardless of willfulness. Ramirez v. Rifkin, 568

F. Supp. 2d 262, 273 (E.D.N.Y. 2008) (citing N.Y. Lab. Law § 663(3)). Third, plaintiff “can

recover under either the FLSA or NYLL” for his claims, “but not for both.” Vasquez, 2021

WL 1226567, at *13; see also Duran v. M.S.T.A.S. Ltd., No. 20-cv-09228, 2023 WL

7304817, at *3 (S.D.N.Y. Sept. 20, 2023) (“Although a defendant may be simultaneously

liable under both the FLSA and NYLL, a plaintiff may not recover damages under both

the FLSA and NYLL for the same injury.”), report and recommendation adopted, 2023

WL 7126296 (Oct. 30, 2023). Fourth, “[w]here both the FLSA and NYLL apply to a

plaintiff’s claims, courts apply the statute that provides the greatest measure of damages.”

Duran, 2023 WL 7304817, at *3.

Here, plaintiff’s claims began accruing when he commenced his employment in

2018, more than three years before he filed his complaint. Pl.’s Decl. ¶ 2. Accordingly, “the

limitations period under the NYLL will provide [him] the greatest recovery, as it will

encompass [p]laintiff’s entire . . . period of employment.” Duran, 2023 WL 7304817, at

*3. In other words, because the NYLL statute of limitations applies, “the issue of whether

[the] [d]efendants’ violations were willful, and thus whether a two or three-year statute

of limitations applies under FLSA, does not impact [p]laintiff[’s] recovery.” Vasquez, 2021

WL 1226567, at *13. Thus, the Court need not decide which statute of limitations applies

to plaintiff’s FLSA claims. See id. (reasoning on motion for summary judgment that “the

[c]ourt need not decide the issue of willfulness for the purposes of the FLSA statute of

limitations” even where “[t]he parties dispute[d] which statute of limitations under FLSA

applie[d] to [the] [p]laintiffs’ claims” because it would not impact recovery given that the

claims were “without dispute timely under the NYLL”).

V. Remaining NYLL Claims

Plaintiff brings four NYLL claims distinct from his overtime and minimum wage

claims: (1) a claim for failure to pay manual worker wages on a weekly basis in violation

of NYLL § 191 (Count V); (2) a claim for failure to provide timely payments in violation of

NYLL § 191(1)(d) (Count VI); (3) a claim for failure to provide accurate wage statements

in violation of NYLL § 195(3) (Count VII); and (4) a claim for failure to provide required

wage notices in violation of NYLL § 195(1) (Count VIII).

A. Timely Payment Claims (Counts V and VI)

The SAC alleges two claims for relief pertaining to the frequency and timing of

when plaintiff was paid. First, a claim that defendants failed to pay plaintiff his “earned

wages as a manual worker . . . within seven (7) days of the end of the week in which they

were earned[,]” as required by NYLL § 191(1)(a)(i). SAC ¶ 97. Second, a claim that

defendants “failed to timely pay” plaintiff as required by NYLL § 191(1)(d). Defendants

move for summary judgment on both Counts on the basis that “the Second Department

does not recognize a private right of action” pursuant to NYLL § 191. Mot. 13; see also

Mot. 8. Defendants also argue that “the evidence shows [that plaintiff] was paid weekly

when he worked regularly[.]” Mot. 8.

In contrast to his other claims, plaintiff fails to respond to any of defendants’

arguments on these claims in his briefing. See generally Opp’n. Indeed, aside from a

cursory mention of the claims—in the context of discussing their initial inclusion in the

SAC–plaintiff does not address them whatsoever. See Opp’n 10. Therefore, the Court

deems plaintiff to have conceded defendants’ arguments and finds plaintiff to have

abandoned these claims. See Blake v. Race, 487 F. Supp. 2d 187, 217 (E.D.N.Y. 2007)

(“Because [the] plaintiff’s opposition papers did not address [the] defendants’ motion for

summary judgment on this claim, the claim is deemed abandoned and summary

judgment could be granted on that basis alone.”) (collecting cases); see also Alvarado v.

United Hospice, Inc., 631 F. Supp. 3d 89, 110 (S.D.N.Y. 2022) (“Courts routinely hold that

where a plaintiff fails to address the defendants’ arguments against or even mention

several of his or her claims, those claims are deemed abandoned.”); accord Kovaco v.

Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016) (“[S]ummary

judgment is known as a highly useful method of narrowing the issues for trial, it follows

that preparation of a response to a motion for summary judgment is a particularly

appropriate time for a non-movant party to decide whether to pursue or abandon some

claims or defenses. Accordingly, generally, . . . a partial response reflects a decision by a

party’s attorney to pursue some claims or defenses and to abandon others, and a court

may . . . infer from a party’s partial opposition that relevant claims or defenses that are

not defended have been abandoned.”).

Therefore, defendants’ motion for summary judgment is granted as to plaintiff’s

claims for failure to pay weekly wages (Count V) and failure to provide timely payments

(Count VI) under the NYLL. Counts V and VI are hereby DISMISSED.

B. Wage Notice and Wage Statement Claims (Counts VII and VIII)

Plaintiff brings two claims for relief pertaining to defendants’ alleged violation of

the NYLL’s wage notice and statement provisions. Specifically, plaintiff asserts that he

“never received a wage notice” apprising him of his rate of pay and concomitant rights as

required under NYLL § 195(1) within 10 days of commencing employment at ZAD. See

Opp’n 19; see also SAC ¶¶ 108–14. Plaintiff also brings a claim for defendants’ alleged

violation of the Wage Theft Prevention Act, NYLL § 195, because plaintiff “never received

any wage statements as required by the NYLL.” See Opp’n 21; see also SAC ¶¶ 115–21.

Defendants concede that they never gave plaintiff wage notices. See Reply 10

(“Defendants do not claim they gave wage notices[.]”). Defendants also concede that they

failed to provide wage statements as required by NYLL § 195. See Reply 10; see also

Anthony Tr. 14:23–16:9. In support of their Motion, defendants instead rely on their

argument that they “were not employers subject to the provisions requiring wage notices”

and wage statements to be provided to plaintiff because he “was an independent

contractor[].” Mot. 10. This argument fails in light of the Court’s conclusion that plaintiff

has adduced sufficient evidence to raise a genuine dispute as to whether defendants were

plaintiff’s employers. See Part II.

Nevertheless, the Court must assure itself that it has jurisdiction over these claims.

See Gavin/Solmonese LLC v. D’Arnaud-Taylor, 68 F. Supp. 3d 530, 543 (S.D.N.Y. 2014)

(“Federal courts are obligated to consider whether subject matter jurisdiction has been

established, even sua sponte.”) (citing Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006)).

Specifically, plaintiff must establish that he has Article III standing to pursue each and

every claim he raises. See Villada, 2024 WL 3875778, at *9 (“Standing is not dispensed

in gross. Rather, the plaintiff must show standing separately for each claim he or she

presses.”) (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)). A plaintiff

has standing only if “(1) he suffered an injury in fact which is concrete, particularized, and

actual or imminent; (2) there is a fairly traceable causal connection between his injury

and the defendant’s conduct; and (3) a favorable decision would provide redress for his

injury.” Chisolm-Lucas v. Am. Airlines, Inc., 793 F. Supp. 3d 477, 482 (E.D.N.Y. 2025)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

The Second Circuit recently clarified that a plaintiff seeking to maintain wage

notice and wage statement claims under the NYLL must adequately show “a concrete

injury-in-fact resulting from the failure to provide the wage notices and wage statements.”

Guthrie v. Rainbow Fencing Inc., 113 F.4th 300, 302–03 (2d Cir. 2024). This is so

because “statutorily noncompliant” violations of the NYLL that are “divorced from any

concrete harm[,] . . . do not suffice for Article III standing.” Id. at 306 (quoting

TransUnion, 594 U.S. at 440). Accordingly, a plaintiff must show a “downstream harm.”

Id. at 308; see also Fortune v. Vivendi Ticketing US, LLC, No. 24-cv-08415, 2025 WL

2443681, at *5 (S.D.N.Y. Aug. 25, 2025) (“[A] plaintiff must also allege downstream

consequences from failing to receive the required information.”).

Additionally, a plaintiff must demonstrate “some causal connection between the

lack of accurate notices and the downstream harm.” Guthrie, 113 F.4th at 308. Thus,

“unless the plaintiff-employee can show that he or she would have undertaken . . .

advocacy and plausibly would have avoided some actual harm or obtained some actual

benefit if accurate notices had been provided, the plaintiff-employee has not established

a concrete injury-in-fact sufficient to confer standing to seek statutory damages.” Id.

Inaccurate or inadequate notices that “prevent[] the employee from obtaining full

payment of wages in a timely fashion” may suffice to demonstrate an injury-in-fact. Id. at

308–09. Still, a plaintiff “cannot assume this conclusion without analysis or rely on

speculation or conjecture”—he must adduce evidence “support[ing] a plausible theory as

to how he was injured by the defendants’ failure to provide the required documents.” Id.

(emphasis in original).

Plaintiff fails to establish Article III standing for his wage notice and wage

statement claims. First, the SAC is devoid of any allegations regarding a downstream

harm from defendants’ alleged violations. See SAC ¶¶ 108–21. The SAC simply alleges that

defendants violated the statute, but does not “allege that plaintiff suffered an actual

injury, let alone a causal connection between that injury and defendants’ failure to provide

accurate notices.” Li v. Dolar Shop Rest. Grp. LLC, No. 16-cv-01953, 2025 WL 2782535,

at *2 (E.D.N.Y. Sept. 30, 2025); see also Villada, 2024 WL 3875778, at *10 (“[The]

[p]laintiff does not link any legally cognizable injury that she personally experienced to

[the] [d]efendants’ failure to provide wage statements and wage notices under the NYLL.

[The] [p]laintiff instead merely alleges that the [d]efendants failed to comply with these

statutory mandates. Without some tangible downstream harm flowing from the statutory

violations, [the] [p]laintiff cannot have suffered a concrete injury resulting from [the]

[d]efendants’ violations of the NYLL’s wage statement and wage notice requirements.”).

Moreover, plaintiff’s evidence fails to establish “a causal connection between the

lack of a wage notice or a wage statement and any downstream harm.” Guthrie, 113 F.4th

at 302–03. It is not enough for plaintiff to identify a downstream harm; he must also

present evidence “support[ing] a plausible theory as to how he was injured by the

defendants’ failure to provide the required documents.” Id. Yet, plaintiff fails to cite to

any record evidence demonstrating that he “would have undertaken advocacy and

avoided some actual harm or obtained some actual benefit if accurate notices had been

provided.” Giancotti v. Pizzarotti LLC, No. 23-cv-03457, 2025 WL 2607606, at *18

(S.D.N.Y. Sept. 9, 2025). Plaintiff did not testify about the lack of wage notices and wage

statements during his deposition at all, much less what he would have done if accurate

notices had been provided. See generally Pl.’s Tr. Thus, the Court is left to speculate as to

whether plaintiff would have undertaken advocacy on his behalf if he was provided

accurate notices and statements, which is insufficient to meet plaintiff’s burden of

establishing standing. See Giancotti, 2025 WL 2607606, at *18 (concluding that the

plaintiff failed to meet his burden at the summary judgment stage to show causal

connection between NYLL violation and downstream harm where plaintiff’s affidavit

asserted that the plaintiff “never received wage notices about his pay or what he was

entitled to, which delayed him filing his labor complaints against [the] [d]efendants, and

that his wage statements were often incorrect such that he was delayed in and impaired

in seeking relief for his short pay”); Nereo v. Shleppers Holdings, LLC, No. 22-cv-09505,

2025 WL 936570, at *11 (S.D.N.Y. Mar. 27, 2025) (reasoning that the plaintiffs appeared

to lack standing for wage statement and wage notice claims because the plaintiffs

“offer[ed] no evidence to show what [t]he [p]laintiffs would have done differently to

obtain higher wages had they been provided wage statements and wage notices”).

Therefore, because plaintiff has not established standing to assert these claims, the

Court appears to lack subject matter jurisdiction over plaintiff’s wage notice and wage

statement claims. See Giancotti, 2025 WL 2607606, at *18 (citing Katz v. Donna Karan

Co., 872 F.3d 114, 121 (2d Cir. 2017)). However, in light of the Court raising the issue sua

sponte, plaintiff is ordered to show cause, with supporting evidence, why his wage notice

and statement claims should not be dismissed for lack of subject matter jurisdiction.

Nereo, 2025 WL 936570, at *11; see also Villada, 2024 WL 3875778, at *10 (explaining

that “the Second Circuit has instructed district courts to provide an adversely affected

party with notice and opportunity to be heard before dismissing an action sua sponte for

lack of subject matter jurisdiction”).

VI. Sanctions

Defendants also move for sanctions against plaintiff’s counsel pursuant to Rules 11

and 30(d)(2) of the Federal Rules of Civil Procedure in connection with plaintiff “failing

to discontinue the action in total or amend to remove claims,” as well as counsel’s conduct

during depositions. See Mot. 18, 20. The Court defers ruling on defendants’ request for

sanctions and takes the motion under advisement. See Safe-Strap Co. v. Koala Corp., 270

F. Supp. 2d 407, 420 (S.D.N.Y. 2003) (“Courts should, and often do, defer consideration

of certain sanctions motions until the end of the litigation to gain a full sense of the case.

. . . This is a sensible practice where[,] as here[,] the thrust of the sanctions motion is that

institution of the case itself was improper.”).

CONCLUSION

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

granted in part, denied in part. The Court defers ruling on defendants’ motion for

sanctions. Defendants’ motion to exclude expert witnesses is denied as moot. The Clerk

of Court is respectfully directed to dismiss defendant Nikolas Koulizakis from the case.

Plaintiff is ordered to show cause by January 20, 2026, why his wage notice and statement

claims should not be dismissed for lack of subject matter jurisdiction.

In accordance with the Court’s Individual Practice Rule IV.A, the parties shall file

a proposed joint pretrial order by February 11, 2026.

SO ORDERED.

/s/ Natasha C. Merle

NATASHA C. MERLE

United States District Judge

Dated: January 12, 2026

Brooklyn, New York