Lemus v. Pezzementi

Background

Ramiro Lemus sued Todd Pezzementi, Shawn Pezzementi, and Northern Tree Service under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). He also asserted an assault-and-battery claim against Todd Pezzementi. The action was discontinued against Shawn Pezzementi on October 23, 2017. The opinion addresses Lemus’s request for a default judgment against Todd Pezzementi and Northern Tree Service, and those defendants’ request to set aside their default.

Lemus alleged that he worked as a tree cutter from September 2013 through July 21, 2014. He alleged that he generally worked 50 to 55 hours per week, received a fixed weekly salary of $1,500, and was not paid overtime for hours over 40 in a week. He also alleged that defendants did not provide proper wage statements, did not pay him for his final week of work, and did not maintain workers’ compensation insurance. Lemus further alleged that, on July 21, 2014, he cut his hand with a chainsaw, was fired, and was struck and kicked by Todd Pezzementi until he lost consciousness.

Default and Applicable Standard

The court had previously adopted Magistrate Judge Lisa M. Smith’s recommendation to strike defendants’ answer and directed the Clerk of Court to enter defaults against Todd Pezzementi and Northern Tree Service. The court considered whether the default was willful, whether defendants had a potentially valid defense, and whether setting aside the default would prejudice Lemus.

The court found that defendants’ repeated failures to attend a deposition, respond to discovery, and comply with court orders were willful. It also found that the conduct caused lengthy delays and prejudiced Lemus. The court rejected defendants’ argument that their attorney’s illness justified setting aside the default because the answer had been stricken for defendants’ own conduct, not merely because counsel failed to oppose the earlier motion. The application to set aside the default was therefore denied.

A default admits well-pleaded factual allegations, but it does not automatically establish legal liability or the amount of damages. The plaintiff must still show that the admitted facts establish each claim as a matter of law and must prove damages.

FLSA and NYLL Liability

The court concluded that Lemus adequately alleged coverage under the FLSA’s enterprise-coverage provision. Although he did not allege that he personally worked in interstate commerce, he alleged that Northern Tree Service had annual revenues exceeding $500,000 and that its tree-cutting business used equipment, including a chainsaw, that could reasonably be inferred to have moved in interstate commerce.

The court also found that the allegations sufficiently established an employer-employee relationship between Lemus, Todd Pezzementi, and Northern Tree Service. The allegations that Todd owned Northern Tree Service and controlled Lemus’s hiring, firing, working conditions, and pay were sufficient under the economic-realities test. The court held that Todd and Northern Tree Service were jointly and severally liable for damages arising from proven FLSA violations. Because the employer analysis under the NYLL was materially similar, the court reached the same conclusion under that statute.

The court held that Lemus sufficiently pleaded overtime violations under both laws based on his allegations that he worked more than 40 hours per week without receiving overtime pay. It also held that the unrefuted allegations established a violation of New York’s Wage Theft Prevention Act, which requires wage statements containing specified information about pay and the employer. The court noted that the complaint’s failure to cite that statute specifically did not prevent the claim from proceeding because the alleged facts gave defendants notice of it.

The court rejected any claim for a penalty or damages based solely on defendants’ alleged failure to maintain workers’ compensation insurance. It explained that the cited New York Workers’ Compensation Law provisions did not provide a penalty payable to the affected employee and that the complaint did not allege a negligence claim based on that failure.

Unpaid Wages and Assault and Battery

The court held that defendants were liable for Lemus’s alleged unpaid final week of wages under the FLSA and NYLL. The FLSA requires payment of at least the statutory minimum wage, while the NYLL allows recovery of unpaid wages more broadly.

The court also held that the allegations supported liability for assault and battery under New York law. Lemus identified the alleged attacker, the date of the attack, and the alleged conduct—being struck and kicked until unconscious. Because those facts were admitted through the default, the court found Todd Pezzementi liable for resulting damages.

Relief and Damages

The court held that Lemus was entitled to reasonable attorney fees and litigation costs under the FLSA and NYLL. It denied access to injunctive and declaratory relief because Lemus no longer worked for defendants and therefore lacked a continuing injury or standing to seek relief concerning defendants’ employment practices. The court also noted that only the Secretary of Labor may seek an injunction for FLSA violations.

Because Lemus had not submitted evidence establishing the amount of damages with reasonable certainty, the court did not set a damages amount. It granted default judgment as to liability for the FLSA and NYLL overtime claims, the wage-notice violations, unpaid wages, and Todd Pezzementi’s assault and battery. It referred the case to Magistrate Judge Lisa M. Smith for an inquest—an evidentiary process to determine damages, any liquidated or statutory damages, attorney fees, and costs. The defendants’ application to set aside their default was denied.