UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________

No 20-CV-212 (MKB) (RER) _____________________

ANA LIZ AND WALY FERREIRA INDIVIDUALLY, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED,

Plaintiffs, VERSUS 5 TELLERS ASSOCIATES, L.P., 5 TELLERS DEVELOPMENT FUND COMPANY, INC., PARKVIEW APARTMENTS, LLC, PROPERTY MANAGEMENT GROUP, INC., JOHN VOLANDES, AND PETER VOLANDES, JOINTLY AND SEVERALLY, Defendants. ___________________

MEMORANDUM & ORDER ___________________

April 1, 2021

RAMON E. REYES, JR., U.S.M.J.:

Named Plaintiff Waly Ferreira that Defendant Property Management Group, (“Ferreira”) and Opt-In Plaintiffs Mario Inc. (“PMG”) be ordered to provide the Villanueva (“Villanueva”), Jonny Bonilla contact information necessary to issue notice. (“J. Bonilla”), and Francisco Antonio Liz (Id. ¶ 2). For the reasons set forth below, the (“F. Liz”) (collectively, “the Superintendents’ motion is granted in part. Superintendents”) move for conditional certification of a collective and permission to BACKGROUND send notice to potential opt-in members pursuant to the Fair Labor Standards Act I. Procedural History (“FLSA”),

(b). (Dkt. No. 39 On January 10, 2020, Ana Liz1 and (“Pls.’ Mot.”) ¶¶ 1, 3). They further request Ferreira (collectively, “Named Plaintiffs”)

1 Named Plaintiff Ana Liz asserts her claims only in collective representative. (Dkt. No. 41 (“Pls.’ Mem.”) her individual capacity and not as a putative class or at 1 n.1). commenced this action on behalf of While the motion has been pending, Jose themselves and other similarly situated Nicolas Blanco (“Blanco”) and Ramon R. persons. (Dkt. No. 1 (“Compl.”) at 1). They Ferreira filed their consent to join the allege that PMG, 5 Tellers Associates, L.P. collective. (Dkt. Nos. 47, 51). (“5 Tellers L.P.”), 5 Tellers Development Fund Company, Inc. (“5 Tellers HDFC”), II. Factual Allegations Parkview Apartments, LLC (“Parkview”), John Volandes, and Peter Volandes violated The Named Plaintiffs allege that the FLSA,

et seq., and New Defendants 5 Tellers L.P., 5 Tellers HDFC, York Labor Law (“NYLL”), N.Y. Lab. Law and Parkview are part of a centrally managed § 190 et seq. (Id. ¶ 1). Ferreira filed his real estate enterprise that owns, controls, and consent to be a party in a collective action on manages apartment buildings in New York January 10, 2020. (Dkt. No. 3). Villanueva, J. City. (Compl. ¶ 4; Dkt. No. 40 (“Rapaport Bonilla, and F. Liz then each consented to be Decl.”) ¶ 4). They further allege that John and a party in a collective action. (Dkt. Nos. 8– Peter Volandes exercised ownership and 10). control over the other 5 Tellers Defendants. (Compl. ¶ 5; see also Dkt. No. 44 (“Owen 5 Tellers L.P., 5 Tellers HDFC, Decl.”) ¶ 2). Named Plaintiffs, 5 Tellers Parkview, John Volandes, and Peter Defendants, and PMG agree that PMG Volandes (collectively, “5 Tellers managed certain apartment buildings on Defendants”) filed an Answer on March 6, behalf of the 5 Tellers Defendants. (Compl. ¶ 2020. (Dkt. No. 21). They later amended their 7; Rapaport Decl. ¶ 5; Dkt. No. 23 ¶ 151; see Answer to include a cross claim against Owen Decl. ¶¶ 8–9). Named Plaintiffs and 5 PMG. (Dkt. No. 23). PMG answered the Tellers Defendants also agree that PMG had Complaint and cross claim on May 13, 2020. control and decision-making authority over (Dkt. No. 30). It also asserted cross claims the terms and conditions of employment at against the 5 Tellers Defendants. (Id.). those buildings, including wage policies and practices. (Compl. ¶¶ 7, 45; Dkt. No. 23 The Court referred this case to mediation ¶¶ 152–53). PMG counters that it provided on February 20, 2020. (Dkt. No. 22). only “‘back office’ services, such as Following mediation, the case remained collecting rent from tenants and other unresolved. (Dkt. Entry Dated 8/12/2020; ministerial activities.” (Owen Decl. ¶ 3). Dkt. No. 36). The Court then ordered the parties to complete discovery by June 1, The buildings where the Superintendents 2021. (Order dated 8/26/2020). worked were owned by different corporate entities,2 but Ferreira, Villanueva, J. Bonilla, The Superintendents filed their Motion to and Blanco aver that PMG enforced the same Certify FLSA Collective Action on wage and hour practices at the different November 9, 2020. (Dkt. Nos. 39–41). PMG buildings it managed. (Ferreira Decl. ¶ 11; opposed the motion. (See Dkt. Nos. 43–45). Villanueva Decl. ¶ 4; J. Bonilla Decl. ¶ 12;

2 Ferreira, J. Bonilla, and Villanueva worked at No. 40-8 (“Ferreira Decl.”) ¶ 2; Dkt. No. 40-9 buildings owned by Parkview (1660 Crotona Park (“Villanueva Decl.”) ¶ 2; Dkt. No. 40-10 (“J. Bonilla East, 1680 Crotona Park East, and 819–823 East 173rd Decl.”) ¶ 2; Dkt. No. 40-11 (“F. Liz. Decl.”) ¶ 2; Street in the Bronx, respectively); F. Liz worked at Dkt. No. 40 (“Blanco Decl.”) ¶ 1; Owen Decl. ¶¶ 8–9; 300–306 East 162nd, a building in the Bronx owned Dkt. No. 40-3). by 5 Tellers L.P.; Blanco worked at three buildings in the Bronx each owned by a different entity. (See Dkt. Blanco Decl. ¶ 17). They allege a centralized Bronx and Manhattan. (Dkt. No. 40-3). management structure of PMG. (Pls.’ Mem. at 4; Dkt. No. 49 (“Pls.’ Reply”) at 5). The Another supervisor was named Orlando Superintendents and Blanco agree that PMG Carpio (“Carpio”). (Ferreira Decl. ¶¶ 15, 17, oversaw payroll and other employment- 19; Villanueva Decl. ¶ 8; J. Bonilla Decl. related issues. (Ferreira Decl. ¶ 13; ¶¶ 7, 11). PMG states that Carpio was an Villanueva Decl. ¶¶ 8, 10; J. Bonilla Decl. ¶¶ employee of the 5 Tellers Defendants who 7–8; F. Liz Decl. ¶ 9; Blanco Decl. ¶ 17). was merely provided with an “on-site” office. Paychecks and work orders were issued from (Owen Decl. ¶¶ 4–5). The Superintendents the PMG office located at 3151 Albany and Blanco also received work orders from Crescent, Bronx, New York (“the Albany PMG secretary “Denise.” (Ferreira Decl. Crescent Office”). (Ferreira Decl. ¶ 14; ¶ 16; Villanueva Decl. ¶ 8; J. Bonilla Decl. Villanueva Decl. ¶¶ 3, 5, 11–12; J. Bonilla ¶ 8; F. Liz. Dec. ¶ 9; Blanco Decl. ¶ 17). Decl. ¶¶ 10, 13; F. Liz. ¶ 5; Blanco Decl. ¶ 17). Around late 2017, Ferreira, Villanueva, J. Bonilla, and R. Liz approached Xin, On average, the Superintendents and Carpio, and a Spanish-speaking PMG office Blanco all worked substantially more than worker to complain about their wages. forty hours per week. (Ferreira Decl. ¶ 12 (65 (Ferreira Decl. ¶ 20; Villanueva Decl. ¶ 17). hours); Villanueva Decl. ¶ 15 (55.5 hours); J. In approximately early 2019, Blanco Bonilla Decl. ¶ 9 (74 hours); F. Liz. Decl. ¶ complained to PMG president Victor Owen 9; Blanco Decl. ¶¶ 9, 12 (52 hours)). And (“Owen”) about his wages. (Blanco Decl. they were all paid a fixed weekly salary. ¶ 13). (Ferreira Decl. ¶¶ 11–12, 23 ($560); Villanueva Decl. ¶¶ 4, 15 ($560); J. Bonilla LEGAL STANDARD Decl. ¶ 5 ($560); F. Liz. Dec. ¶ 10 ($300); The FLSA permits employees to assert Blanco Decl. ¶ 14 ($360 and later $500). claims on behalf of themselves and other They were not paid overtime compensation. similarly situated employees. (Ferreira Decl. ¶ 12; Villanueva Decl. ¶¶ 4,

(b). In the Second Circuit, 15; J. Bonilla Decl. ¶ 9; F. Liz Decl. ¶ 10; certification of a FLSA collective action is a Blanco Decl. ¶ 14). Villanueva and J. Bonilla also assert wage statement violations.3 two-step process. Finnigan v. Metro. Transp. Auth., No. 19-CV-00516 (PKC) (RER), 2020 (Villanueva Decl. ¶ 6; Bonilla Decl. ¶ 11). WL 1493597, at *2 (E.D.N.Y. Mar. 26, 2020) The Superintendents identify three PMG (citing Myers v. Hertz Corp.,

, managers who worked in the Albany 554–55 (2d Cir. 2010)). Ferreira’s current Crescent Office—Frank Vargas (“Vargas”), motion only concerns “[t]he first step, called Pan Xin (“Xin”), and Ramon Bonilla. These conditional certification.” See Jenkins v. TJX individuals were involved to some degree in Cos.,

(E.D.N.Y. supervising the Superintendents’ work. 2012). If conditional certification is granted, (Ferreira Decl. ¶¶ 3–4, 17–18; Villanueva the putative collective members are sent Decl. ¶¶ 3, 8–9; J. Bonilla Decl. ¶¶ 4–6; F. notices and given the opportunity to opt-in to Liz. Decl. ¶ 8). Vargas and Xin served as the collective action.

After discovery, designated agents and/or managers for defendants can move to decertify the class, several PMG-managed buildings in the and the court evaluates the similarities

3 J. Bonilla asserts a wage notice violation as well. (J. Bonilla Decl. ¶ 5). amongst the collective with increased Dist. LEXIS 120126, at *4 (S.D.N.Y. Oct. scrutiny. See

at 320–21. 17, 2011) (quoting Cunningham v. Elec. Data Sys. Corp.,

, 644 Conditional certification requires (S.D.N.Y. 2010)). Allegations in the plaintiffs to demonstrate by “a ‘modest complaint and other conclusory statements factual showing’ that they and potential opt- that similarly situated employees exist are in plaintiffs ‘together were victims of a insufficient. Prizmic v. Armour, Inc., No. 05- common policy or plan that violated the CV-2503 (DLI) (MDG),

, law.’” Finnigan,

, at *2 at *2 (E.D.N.Y. June 12, 2006) (collecting (quoting Myers,

). In other cases). “A plaintiff must provide actual words, the plaintiff must show that “there are evidence of a factual nexus between his other employees who are similarly situated situation and those that he claims are with respect to their job requirements and similarly situated . . . .” Id.; see also Young v. with regard to their pay provisions.” Myers, Cooper Cameron Corp.,

, 54

(citation omitted). (S.D.N.Y. 2005). “[C]ourts regularly determine that two or three declarations Although the Second Circuit has yet corroborating each other constitute a to prescribe a particular method for sufficient amount of evidence to determining whether members of a conditionally certify a collective action under putative class are similarly situated, the FLSA.” Colon v. Major Perry St. Corp., district courts in this circuit look to No. 12 Civ. 3788 (JPO),

, the “(1) disparate factual and at *6 (S.D.N.Y. July 2, 2013). employment settings of the individual plaintiffs; (2) defenses available to DISCUSSION defendants which appear to be individual to each plaintiff; and (3) I. The Superintendents’ Allegations fairness and procedural are Sufficient as to PMG-Managed considerations counseling for or Buildings in the Bronx against notification to the class.” The Superintendents’ submissions satisfy Laroque v. Domino’s Pizza, LLC, 557 F. their burden of a modest factual showing that Supp. 2d 346, 352 (E.D.N.Y. 2008) (quoting they are similarly situated to other Guzman v. VLM, Inc., No. 07-CV-1126 (JG) superintendents at PMG-managed buildings (RER),

at *3 (E.D.N.Y. in the Bronx because five declarations before Oct. 11, 2007) (collecting cases)). the Court corroborate the pleadings and give rise to an inference that the same wage and In determining whether plaintiffs have hour policy was enforced across PMG- met their burden, courts “look[] to the managed buildings in those locations. pleadings and submitted affidavits” and do not “resolve factual disputes, decide A. The Superintendents Established that substantive issues going to the ultimate there are Similarly Situated merits, or make credibility determinations.” Employees Yu Zhang v. Sabrina USA Inc., No. 18 Civ. 12332 (AJN) (OTW),

, at The Superintendents’ and Blanco’s *2 (S.D.N.Y. Dec. 20, 2019) (citations declarations specify that they worked the omitted); see also Urresta v. MBJ Cafeteria Corp., No. 10 Civ. 8277 (RWS), 2011 U.S. same job during a similar time period,4 were competing declarations at this time. See paid in the same manner, and answered to the Morris v. Lettire Constr. Corp., 896 F. Supp. same individuals who operated out of one 2d 265, 271–272 (S.D.N.Y. 2012) (declining office. These declarations are sufficient to to consider the declaration of an individual demonstrate a factual nexus as to the wage denying a statement that plaintiff alleged he and hour violations experienced by made). PMG further argues that the hearsay superintendents who worked at PMG- statements regarding what Robinson may managed buildings in the Bronx. See Colon, have said during a conversation with Ferreira

, at *7 (quoting Jacob v. and Villanueva are inadmissible. However, Duane Reade, Inc., No. 11 Civ. 160, 2012 Courts in this District do not strike hearsay WL 260230, at *8 (S.D.N.Y. Jan. 27, 2012) statements at this stage of litigation. Lujan v. (“[T]he question ‘before the Court is not Cabana Mgmt., No. 10-CV-755 (ILG), 2011 whether Plaintiffs and other WL 317984, at *6 (E.D.N.Y. Feb. 1, 2011) [superintendents] were identical in all (declining to strike a hearsay statement respects, but ‘rather whether they were “given the ‘modest factual showing’ required subjected to a common policy to deprive at the notice stage.” (quoting Laroque, 557 F. them of overtime pay.’”). The only evidence Supp. 2d at 352)). Even if the Court does not the Superintendents provide about PMG- consider that Robinson may have managed buildings in Manhattan is that experienced the same alleged FLSA Vargas and/or Xin are the designated agent violations, Ferreira has still provided and/or manager of some of them; none of the sufficient facts to merit conditional Superintendents purport to have any certification of a collective action because the information as to whether employees at the Superintendents, who worked at different Manhattan properties are subject to the same buildings managed by PMG, experienced the alleged wage and hour violations. same wage and hour violations. See Colon,

, at *6 (finding plaintiff’s Both Ferreira and Villanueva also allegations together with declarations from reference a conversation that they had with two other superintendents “more than “Robinson,” the superintendent of a PMG- sufficient” to establish a common policy managed building located on Stratford enforced at over 100 apartments buildings Avenue in the Bronx during which Robinson owned by several corporate entities owned by shared that he also worked long hours for a the same individual). flat weekly pay. (Ferreira Decl. ¶ 16; Villanueva Decl. ¶¶ 10, 23). PMG submitted PMG argues that the Superintendents a declaration from Robinson in which he have not demonstrated that the proposed opt- denies ever discussing his wages with in plaintiffs are similarly situated and subject Ferreira or Villanueva and states that he has to a common policy as to their employment, never been denied overtime compensation hours, and wages. (Dkt. No. 45 (“Opp’n”) at because he works fewer than forty hours per 15). Specifically, PMG asserts that the week. (Dkt. No. 43-2 ¶¶ 2, 11). The Court Superintendents did not provide the names of will not weigh the credibility of the proposed class members, statements that

4 The approximate dates of employment for each Blanco, 2006 until the present. (Ferreira Decl. ¶ 2; Superintendent at a PMG-managed building are as Villanueva Decl. ¶ 2; J. Bonilla Decl. ¶ 2; F. Liz follows: Ferreira, July 2012 through November 2019; Decl. ¶ 2; Blanco Decl. ¶ 1). PMG ceased serving the Villanueva, June 2006 through February 13, 2020; 5 Tellers Defendants on or about November 1, 2019. J. Bonilla, 2009 through on or about November 1, (Pls.’ Mem. at 5). 2019; F. Liz, May 2003 through November 1, 2019; other proposed class members were not they are in the minority.” Millin v. Brooklyn compensated for overtime, how they have Born Chocolate, LLC, No. 19-CV-3346 personal knowledge of the work conditions (ENV) (RER),

, at *2 for proposed class members, who employs (E.D.N.Y. May 6, 2020) (collecting cases) the proposed class members, and whether the (finding as sufficient named plaintiff’s proposed class members desire to opt into pleadings together with time records and pay this lawsuit. (Opp’n at 15–16). This argument stubs corroborating his assertions); cf. mischaracterizes the Superintendents’ Contrera v. Langer,

, 716 burden.5 This Court has previously noted that (S.D.N.Y. 2017). “[w]hile there are a few cases which may appear to stand for [the proposition that a Lastly, as PMG emphasizes, the declaration supporting conditional collective includes a small number of certification needs to be exquisitely detailed individuals. (Opp’n at 16–17). PMG submits as to time, place, occurrence, speaker, etc.], declarations from fourteen superintendents at

5 Courts tend to require more details, such as those evidence of a common policy was hearsay statements identified by PMG, when plaintiffs seek to certify a that had been called in to question.); Ikikhueme v. nationwide or otherwise vast collective or to include CulinArt, Inc., No. 13 Civ. 293 (JMF), 2013 WL in the collective individuals with different job titles or 2395020, at *2 (S.D.N.Y. June 3, 2013) (denying who work at disparate locations, yet fail to provide any certification of a collective of sous chefs at many evidence suggesting that those other employees are different locations where plaintiff submitted only his subject to the same policy and practices. That is not own affidavit and made no allegations that other sous the case here. See Garriga v. Blonder Builders Inc., chefs were subject to the alleged FLSA violations.); No. 17-CV-497 (JMA) (AKT), 2018 U.S. Dist. LEXIS Korenblum v. Citigroup, Inc.,

, at *15 (E.D.N.Y. Sep. 28, 2018) (“[W]hile 478 (S.D.N.Y. 2016) (applying “a modest ‘plus’ Plaintiffs’ declarations are sufficient to show that they standard” and denying conditional certification where and their fellow carpenters were likely subject to a plaintiffs’ declarations contradicted their own common policy or plan that violated the law and were deposition testimony, eleven of the twelve opt-in otherwise similarly situated, their assertions as to other plaintiffs worked for the same vendor and where the non-exempt employees are sparse and insufficient to proposed nationwide collective encompassed expand the collective to include “all non-exempt “approximately 7,500 workers associated with forty employees.”); Sanchez v. JMP Ventures, LLC., No. 13 different . . . vendors at approximately seventy Civ. 7264 (KBF),

, at *2 (S.D.N.Y. different worksites.”). Jan. 27, 2014) (denying motion for conditional certification where plaintiff submitted only his own PMG also cites to Levinson v. Primedia Inc., No. 02 affidavit and failed to include any detail about Civ. 2222 (CBM),

, at *2 conversations he had with potential opt-in plaintiffs); (S.D.N.Y. Nov. 6, 2003). In Levinson, the court denied Taveras v. D&J Real Estate Mgmt. II, LLC, 324 certification for a class of tour guides employed by F.R.D. 39 (S.D.N.Y. 2013) (granting conditional related entities. While the named plaintiffs submitted certification of superintendents working within the their own contracts and descriptions of their pay same two buildings but excluding those at other arrangements, the court was unpersuaded that other buildings, because plaintiffs did not identify any tour guides, referenced only in the abstract, were individuals working at other locations, did not provide subject to the same policy. The Superintendents, specifics of conversation with other employees, did however, have also alleged a centralized management not explain how they could have observed the work structure of PMG, (Pls.’ Mem. at 4; Pls.’ Reply at 5), schedules of those at other locations, and did not offer provided a building list showing that many of the same proof that their manager also managed employees at designated agents or managers were assigned to other locations); Laroque v. Domino's Pizza, LLC, 557 several different PMG-managed buildings, (Dkt. No. F. Supp. 2d 346, 355–56 (E.D.N.Y. 2008) (certifying 40-3), and submitted affidavits of individuals other a collective for only one location where including than the named plaintiff and who work at different other locations could lead to a collective of hundreds locations, (Dkt. Nos. 40-9 through 40-11, 48). of employees, individuals at other locations worked under different managers, and the only supporting other PMG-managed buildings in an attempt B. The Superintendents Support an to demonstrate that the majority of potential Inference of a Uniform Policy under opt-in plaintiffs are not subject to the wage Common Ownership or Management and hours policy that the Superintendents describe.6 (Id. at 16; Dkt. Nos. 43-2 through At the conditional certification stage, the 43-15). The Court declines to consider those Court need only find that the declarations at this conditional certification Superintendents’ factual showing adequately stage. See Morris, 896 F. Supp. 2d at 271– “support[s] an inference that a uniform policy 272 (declining to consider declarations of or practice exists” under “common employees who claimed that they did not ownership or management.” See Contrera, work overtime and were compensated if they

(quoting Cruz v. Ham did). N Eggery Inc.,

, at *3 (E.D.N.Y. Aug. 8, 2016)) (noting that PMG then argues that even if “the whether a particular defendant is a joint remaining 5 superintendents [who did not employer under FLSA is a fact specific submit affidavits through PMG] intended to inquiry not to be resolved at this stage); cf. opt into this lawsuit . . . the numerosity Urresta,

, at requirement for a class action would not be *19 (finding that plaintiffs did not provide “a satisfied.” (Opp’n at 17). It is without factual demonstration of any common control question that the Rule 23 requirements, or other element of joint-employer status.”). including numerosity, are not applicable to certification of a FLSA collective action. See, PMG argues that “Plaintiffs’ proposed e.g., Jenkins,

; Young, class is comprised of 19 superintendents who

(quoting Foster v. Food were employed by 24 different Emporium, No. 99 Civ. 3860 (CM), 2000 WL entities . . . Nor do Plaintiffs allege that they 1737858, at *1 (S.D.N.Y. April 26, 2000)). are related in any way to the existing Courts in this Circuit agree that “[e]ven if the Defendants.” (Opp’n at 19). But PMG fails to group of eligible plaintiffs is small, they all appreciate the relevance of the undisputed ‘have a right to notice of these claims and an fact that the twenty-four entities all had PMG opportunity to join this action.’” Lee v. ABC manage their residential apartment buildings. Carpet & Home,

(See Opp’n at 8; Owen Decl. ¶¶ 8–9). The (S.D.N.Y. 2006) (quoting Davis v. Lenox Hill Superintendents’ factual evidence supports Hosp., No. 03 Civ. 3746 (DLC), 2004 WL an inference that superintendents in the 1926086, at *7 (S.D.N.Y. Aug. 31, 2004)). Bronx were subject to a uniform wage and hour policy under PMG management.

The Superintendents and Blanco assert that PMG issued work orders, paychecks, and

6 Blanco has introduced doubt as to the credibility of [his] job and residence”) and states that his first these statements. (See Banco Decl. ¶¶ 3–11). He is one declaration did not accurately describe his actual of the superintendents whose declaration PGM hours. (Blanco Decl. ¶¶ 6–9). Blanco also submits a submits with its opposition. (Dkt. No. 43-11). Blanco voice message he received to dissuade him from subsequently submitted a declaration along with the speaking to any lawyers about his work with PMG. Superintendents’ reply that details the conditions (Dkt. No. 48-1). According to Blanco, PMG manager under which he provided that statement (including that and agent Vargas left that message. (Blanco Decl. ¶ 3). “[t]he PMG manager whispered how I should answer the questions” and that “[he] was terrified of losing other employment-related memos; it handled Contrera,

(“Even ‘a vacation time and other employment-related single affidavit providing some basis for an issues.7 (Ferreira Decl. ¶¶ 13–14, 17; inference that a company-wide policy exists Villanueva Decl. ¶¶ 3, 5, 8, 10–12; J. Bonilla could be sufficient to grant conditional Decl. ¶¶ 7–8, 10–11, 13; F. Liz Decl. ¶¶ 5, 9; certification.’” (quoting Fernandez v. Sharp Blanco Decl. ¶ 17). When Ferreira had a Mgmt. Corp., No. 16 Civ. 551 (JGK) (SN), concern about his wages, he, together with

, at *3 (S.D.N.Y. Oct. 13, superintendents of other buildings, owned by 2016) (collecting cases))); Sipas v. Sammy’s separate entities,8 spoke with PMG manager Fishbox, Inc.,

, at *2 Xin with the understanding that his decision (S.D.N.Y. Apr. 24, 2006) (“All the Plaintiffs on wages was final. Similarly, Blanco spoke were required to wear the same uniforms, to PMG president Owen about a wage-related attend the same semi-annual meetings to concern, understanding his decision on discuss problems with parking operations, wages to be final. (Blanco Decl. ¶ 13; see and answer to the same supervisors” and Owen Decl. ¶ 1). alleged the same wage violations.); Taveras, 324 F.R.D. at 46 (“[individual defendant] The Superintendents’ counsel’s staff was involved in management of employees reviewed public records to determine the employed at [two locations], suggesting number and locations of buildings managed common management and centralized by PMG. (Rapaport Aff. ¶¶ 7–8). The records control of labor relations” but finding that indicate that for each building other than including unnamed employees of unnamed those for which one of the 5 Tellers “related” entities was too broad). The Court Defendants held title, including the cannot make the same inference as to PMG- Manhattan buildings, the designated agent managed buildings in Manhattan or and/or manager is listed at the Albany Brooklyn. See Monger v. Cactus Salon & Crescent Office. (Dkt. No. 40-3). Vargas Spa’s LLC, No. 08-CV-1817 (FB) (WDW), and/or Xin are the designated agent and/or

, at *2 (E.D.N.Y. July 6, manager of all of the buildings that PMG 2009) (“[Plaintiff’s] offer no basis for this managed in the Bronx except for belief [that other locations’ employees are approximately three. (Dkt. No. 40-3). similarly situated]; they name no individuals at other salons who are similarly situated; and The Court can reasonably infer from the they provide no documentary evidence that affidavits of five different superintendents at policies are the same at different Cactus separate buildings in the Bronx, each Salon locations.”); Greene v. C.B. Holding managed by PMG that there is a common Corp.,

, at *5 (granting policy of wage and hour violations at PMG- conditional certification based on eight managed buildings in the Bronx. See affidavits supporting that alleged wage and

7 The Court acknowledges the dispute regarding 2198125, at *1. whether PMG exercised control over employment conditions or merely performed “back office” tasks. 8 Based on the records collected by the (Compare Compl. ¶¶ 7, 45, and Dkt. No. 23 ¶¶ 152– Superintendents’ counsel, Ferreira, Villanueva, and J. 53, with Owen Decl. ¶ 3). The Court will not consider Bonilla all worked in buildings to which Parkview the substance of those arguments at this time; held title; 5 Tellers L.P. held title to the building in however, after discovery, PMG may move to decertify which F. Liz worked; and Blanco worked for three the collective, and the Court will evaluate whether the buildings of which title for each was held by a different opt-in plaintiffs are in fact similarly situated. See, e.g., corporate entity. (Dkt. No. 40-3). Jenkins, 853 F. Supp. 2d. at 320–21; Millin, 2020 WL hour violations were experienced at five New minimum wage rate for all hours York locations, one New Jersey location, and worked and/or overtime two Pennsylvania locations). compensation for all hours over forty that they worked in a workweek. Lastly, without citing any authority, PMG argues that granting the Superintendents’ (Pls.’ Mot.). motion would necessitate the addition of twenty-four necessary parties under Rule 23. The FLSA affords a two-year statute of (Opp’n at 20–21). It is no barrier to limitations to bring a cause of action unless conditional certification that not all the violation was willful, in which case the potentially affiliated entities are named as limitations period is extended to three years. defendants. See Lujan,

, at

(a). The Superintendents *1–2 (granting conditional certification after allege that the FLSA violations were willful. noting that not all related entities were named (Compl. ¶¶ 56, 65). Accordingly, their as defendants). proposed collective action period is appropriate. See Garriga, 2018 U.S. Dist. II. Content of the Proposed Notice LEXIS 171887, at *18–19. Under the FLSA, district courts have the PMG argues that the Superintendents’ authority to order that notice be given to revised definition for the collective should be potential members of a collective. E.g., construed as an acknowledgment that the Colon,

, at *7. “[T]he appropriate collective is only those dissemination of notice in a FLSA collective superintendents employed by the 5 Tellers action is a case management tool that courts Defendants in buildings managed by PMG. may employ in ‘appropriate cases,’ including (Opp’n at 5). However, PMG provides no where notice will facilitate swift and legal support for its argument that they economic justice.” Taveras, 324 F.R.D. at 41 should not be permitted to seek conditional (citing Myers,

). certification of the amended proposed collective, and the Court finds none. The In their Complaint, Named Plaintiffs Superintendents appropriately modified part anticipated that the FLSA Collective would of the anticipated opt-in collective after refer to “all persons who are, or have been, limited discovery. For example, maintenance employed as superintendents and workers were removed from the proposed maintenance workers at the 5 Tellers collective because Named Plaintiff Ana Liz, Buildings from three (3) years prior to this a porter, no longer seeks to represent a action’s filing through the date of the final collective. The Superintendents are directed disposition who elect to opt-in to this action.” to further modify the collective in accordance (Compl. ¶ 54). The Superintendents now with this order; namely, to include only requests that the Collective include superintendents who worked at PMG- managed buildings in the Bronx. current and former superintendents of all residential apartment buildings III. Form of the Proposed Notice owned and/or managed by [PMG] - - and Reminder Notice who, while performing work for Defendants at any time between The Superintendents request January 10, 2017 and the present, did authorization to send notice and reminder not receive pay at least at the notice by mail, email, and text message. (Dkt. Nos. 40-4 through 40-7). This request is of the motion for collective action granted. See Millin,

, at *3 (November 9, 2020), rather than the date (“There is no credible reason why notice upon which notice is mailed.

should not be provided by email or text message, especially given the broad remedial V. Requested Contact Information purpose of the FLSA.”); see also Knox v. John Varvatos Enterprises Inc., 282 F. Supp. The Superintendents seek an order from 3d 644, 667 (S.D.N.Y. 2017) (“many courts this Court directing PMG “to produce a in this district have permitted sending a computer-readable data file containing the reminder notice”). names, last known mailing addresses, all known home and mobile telephone numbers, The Superintendents also request to all known email addresses, work locations, distribute the notice in Spanish as well as dates of employment, and primary languages English. (Pls.’ Mem. at 20). This request is spoken of all potential collective action granted. See Lijun Geng v. Shu Han Ju Rest. members who worked at buildings owned or II Corp., No. 18 Civ. 12220 (PAE) (RWL), managed by PMG at any point from

, at *19 (S.D.N.Y. Sept. 9, November 9, 2014 to the present.” (Pls.’ Mot. 2019) (“[T]ranslation of court-authorized ¶ 2). The Court assumes that this request notice is commonly granted ‘to increase the seeks to include superintendents who may effectiveness of the notice in reaching have claims under the NYLL. potential opt-in plaintiffs.’” (quoting Liping Dai v. Lychee House, Inc., 17-CV-6197 (DF), In addition to the FLSA claims, the Court

, at *12 (E.D.N.Y. Aug. can exercise supplemental jurisdiction over 29, 2018))). the NYLL claims arising out of the policies complained of here. See

. IV. Tolling FLSA Statute of The NYLL statute of limitations is six years Limitations from the date that the employee filed a complaint.

(3), 663(3). The Superintendents request that the The NYLL does not have a provision Court order that “the FLSA statute of equivalent to § 216(b) of the FLSA. See limitations be tolled from the date of filing of Guzman,

, at *5. Courts in this motion until such time as the Court this Circuit, including this Court, have resolves [it].” (Pls.’ Mem. at 20). PMG does therefore found it appropriate that notices of not oppose this request. the collective action be sent to prospective plaintiffs with claims now or dating back six While the limitations period for each years. See Anjum v. J.C. Penney Co., No. 13 potential plaintiff continues to run until they CV 460 (RJD) (RER),

, at elect to opt-in to the action, 29 U.S.C. §. *12 (E.D.N.Y. June 5, 2015); Millin, 2020 256(b), some plaintiffs may be eligible for WL 2198125, at *4; Garriga, 2018 U.S. Dist. equitable tolling. See, e.g., Millin, 2020 WL LEXIS 171887, at *19–20; Guzman, 2007 2198125, at *4 (citing Kemper v. Westbury WL 2994278, at *6 (collecting cases). Operating Corp., No. 12-CV-0895 (ADS) (ETB),

, at *3 (E.D.N.Y. Notice shall be sent to superintendents Oct. 17, 2012). It is therefore appropriate that who worked for PMG-managed buildings in notices of the collective action be sent to the Bronx during the six years prior to the prospective plaintiffs who worked for filing of the motion for collective action. defendants from six years prior to the filing Accordingly, PMG is directed to produce the requested contact information. January 10, 2017 to present is conditionally certified and the proposed notice is approved CONCLUSION with modification. The Superintendents’ request for equitable tolling is granted in part. For the reasons set forth above, the Within fourteen days of this Order, Superintendents’ motion for conditional Defendants are directed to provide Plaintiffs’ certification of a collective action is counsel with the requested contact GRANTED in part. A collective action of information for potential collective action superintendents who worked or work at members for the purpose of issuing the PMG-managed buildings in the Bronx from notice.

SO ORDERED /s/ Ramon E. Reyes, Jr.

RAMON E. REYES, JR. United States Magistrate Judge

Dated: April 1, 2021 Brooklyn, NY