Villalva Estrada v. Giovanni's Italian Eatery, Inc.

Background

Floriberto Villalva Estrada brought claims under the Fair Labor Standards Act and New York Labor Law. He alleged that he worked as a cook and deliveryman for Giovanni’s Italian Pizzeria and its owner, Mentor Perlaska, from February 2015 through September 2015. He alleged that he worked 74 hours per week, received $350 per week in cash except for his final week, and was not paid the required minimum wage, overtime, spread-of-hours compensation, or other required wage information.

Neither defendant responded to the amended complaint. After the defendants also failed to respond to the court’s order to show cause or appear at the default-judgment hearing, the court entered an order of default. The court later adopted a recommendation awarding Estrada $47,086.68 plus interest. On September 1, 2020, the court entered a default judgment against both defendants, jointly and severally, for $54,013.08, including prejudgment interest.

Motion to Vacate

Perlaska moved under Rule 60(b)(4) of the Federal Rules of Civil Procedure. That provision allows a court to set aside a judgment that is void, including a judgment entered without personal jurisdiction. Perlaska argued that he had never received the summons, complaint, or default-judgment papers; had not authorized anyone to accept service for him; had no connection with the pizzeria; and had never employed Estrada.

The affidavit of service stated that a process server delivered the summons and amended complaint to Nauro Bidul, a co-worker at the pizzeria, on April 3, 2017. A copy was also mailed to Perlaska in care of the pizzeria at the same address. Perlaska stated that he was not employed at that address, was not there on the date of service, did not know Bidul, and had not authorized Bidul to accept service.

Court’s Analysis

The court applied New York Civil Practice Law and Rules § 308(2), which permits service by delivering the summons to a person of suitable age and discretion at the defendant’s actual place of business and mailing a copy to the defendant’s last known residence or actual place of business. The court explained that the person who receives service need not be the defendant’s employee or specifically authorized to accept service.

The court found that the plaintiff had presented compelling evidence that Perlaska owned the pizzeria. The evidence included a 2013 food-service licensing application listing Perlaska as the corporation’s president, a notarized 2013 affidavit in which Perlaska swore that he was the owner, a 2013 affirmation in which he identified himself as president, and a copy of his driver’s license. The court noted that Perlaska did not explain these documents. Although other licensing materials identified Pashk Mirdita as president or owner at different times, the court stated that those materials did not show that Perlaska had ended his relationship with the pizzeria.

The court concluded that Perlaska owned the pizzeria and that the requirements for service under § 308(2) were met. Because service was proper, the judgment was not void, and Perlaska was not entitled to relief under Rule 60(b)(4).

Disposition

Judge Paul G. Gardephe denied Perlaska’s motion to vacate the default judgment and directed the Clerk of Court to terminate the motion. This order did not decide the underlying wage claims; it decided whether the default judgment against Perlaska was void because of defective service.