Hernandez v. Lira of New York Inc.

Background

The plaintiffs brought claims under the Fair Labor Standards Act, the New York Labor Law, and New York’s Spread of Hours Wage Order. They sued Lira of New York Inc., doing business as Luke’s Bar and Grill, and individual defendants including Luigi Militello and Tommy Tin.

The defendants previously challenged service of process. In an earlier order, the court extended the service deadline and allowed the plaintiffs to complete service by February 28, 2022. The plaintiffs then served the First Amended Complaint on February 17, 2022. After the plaintiffs filed a Second Amended Complaint, they submitted proof that it was served on April 7, 2022.

Service of Process on Militello

Militello argued that service was invalid because he did not receive the mailing of the summons and Second Amended Complaint. The court extended the service deadline retroactively through April 9, 2022, making service on Militello on April 7, 2022, timely.

The court explained that New York Civil Practice Law § 308(2) permits service by leaving the papers with a person of suitable age and discretion at the defendant’s actual place of business and mailing the papers to that business. The court found that Militello did not dispute that the papers were delivered to his actual place of business and left with a suitable person. It also held that the statute did not require Militello to actually receive the mailing. The court therefore denied Militello’s motion to dismiss for improper service.

Tin’s Status as an Employer

The Fair Labor Standards Act and New York Labor Law impose liability on a defendant who qualifies as an “employer.” The plaintiffs alleged that Tin, described as a manager, controlled company operations, wages, schedules, employee records, hiring, and firing, and directed the daily work of kitchen employees.

The court held that these allegations largely repeated the factors used to evaluate whether someone is an employer under the Act without providing supporting factual detail. After setting aside those conclusory allegations, the court found that the only remaining detail was that Tin exercised some direction over the kitchen staff. The court held that this was insufficient to plausibly show that Tin was an employer under the Fair Labor Standards Act and dismissed the plaintiffs’ claims against him.

Other Matters and Disposition

Jonathan Mateos had joined the motion, but he was not named as a defendant in the Second Amended Complaint, and the plaintiffs confirmed that they did not intend to pursue claims against him. The court therefore treated Mateos’s arguments as moot. The court also treated the defendants’ class-certification argument as moot because the Second Amended Complaint no longer included class claims.

Judge Ronnie Abrams concluded that the motion to dismiss was granted with respect to Tin and denied with respect to Militello. The Clerk of Court was directed to terminate the pending motion.