Sosa v. Caz-59 Express, Inc. et Al.

MOTION for Partial Summary Judgment

E.D.N.Y.September 9, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x KEVIN SOSA, on behalf of himself and all others similarly-situated, Plaintiff, -against- CAZ-59 EXPRESS, INC.; SERGEY ZASLAVSKIY, an individual, Defendants. -----------------------------------------------------------------x NOTICE OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT PLEASE TAKE NOTICE THAT upon the accompanying Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment, the Statement of Undisputed Facts Pursuant to Rule 56.1 of the Eastern District of New York’s Local Rules, the Declaration of Caitlin A. McNaughton, Esq. in Support of Plaintiffs’ Motion for Partial Summary Judgment, with annexed exhibits, and all of the pleadings and proceedings heretofore had herein, Plaintiffs will move this Court, on a date and time to be determined by this Court, at the Courthouse located at 225 Cadman Plaza East, Brooklyn, New York 11201, for an Order: (1) finding all Defendants liable to Plaintiffs for violating the FLSA’s and NYLL’s overtime requirements; (2) finding all Plaintiffs to be individually covered under the FLSA; (3) striking Defendants’ sixth affirmative defense; and Case No.: 13-cv-04826 (CBA)(CLP) Case 1:13-cv-04826-CLP Document 70 Filed 09/09/16 Page 1 of 2 PageID #: 233 2 (4) finding that Sergey Zaslavskiy was Plaintiffs’ employer within the meaning of the FLSA and is thus individually liable to Plaintiffs under those statutes. Dated: Great Neck, New York September 9, 2016 Respectfully submitted, BORRELLI & ASSOCIATES, P.L.L.C. Attorneys for Plaintiffs 1010 Northern Boulevard, Suite 328 Great Neck, New York 11021 Tel. (516) 248–5550 Fax. (516) 248–6027 By: ______________________________ CAITLIN A. McNAUGHTON, ESQ. Case 1:13-cv-04826-CLP Document 70 Filed 09/09/16 Page 2 of 2 PageID #: 234 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x KEVIN SOSA, on behalf of himself and all others similarly-situated, Plaintiff, -against- CAZ-59 EXPRESS, INC.; SERGEY ZASLAVSKIY, an individual, Defendants. -----------------------------------------------------------------x Plaintiff Kevin Sosa (“Sosa”), as well as opt-in Plaintiffs Michelangelo Franqui (“Franqui”), Jean Mateo (“Mateo”), Albert Maldonado (“Maldonado”), and Luis Miguel Santiago (“Santiago”), (all, collectively where appropriate, as “Plaintiffs”), pursuant to Local Rule 56.1(a) of the United States District Court for the Eastern District of New York, submit the following statement of undisputed facts on which there are no issues to be tried: THE DEFENDANTS 1. Defendant CAZ-59 Express, Inc. (“CAZ-59”) is a corporation organized under the laws of the state of New York. Ex. 8.1 2. CAZ-59 is an independent contractor of FedEx Home Delivery (“FedEx”), which provides local delivery services for several FedEx delivery routes. Zaslavskiy Depo. (“Ex. 1”) 9:18-25; Ex. 2 ¶ 3, Ex. 3 ¶ 3.) 3. Defendant Sergey Zaslavskiy owns and operates CAZ-59, and is registered as the Chief Executive Officer of CAZ-59 with the New York State Department of State. Ex. 1. 9:14- 17; Ex. 8; Ex. 9, ¶¶ 2, 3, 9, 10. 1 Unless otherwise noted, all exhibits referenced to herein are attached to the “Declaration of Caitlin A. McNaughton, Esq. in Support of Plaintiffs’ Motion for Partial Summary Judgment” filed contemporaneously herewith. Case No.: 13-cv-04826 (CBA)(CLP) PLAINTIFFS’ RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 1 of 14 PageID #: 235 2 4. Defendant Zaslavskiy has and exercised the power to hire and fire all employees for CAZ-59. Ex. 1, 9:13 4-6, 40:24-25, 41:1-3. 5. Defendant Zaslavskiy admitted in his deposition that he is the only person who is responsible for making decisions regarding how CAZ-59 pays employees or generally runs the business. Ex. 1, 40:24-25, 41:1-3; Ex. 9, ¶¶ 2, 3. 6. Defendant Zaslavskiy admits that he was the only supervisor at CAZ-59. Ex. 9, ¶¶ 2-3. 7. Defendant Zaslavskiy admits that he is the only person who ever set CAZ-59’s employees’ work schedules. Ex. 1, 13:4-19; Ex. 9, ¶¶2-3. 8. Defendant Zaslavskiy was the only person setting and determining CAZ-59 employees’ rates and methods of pay. Ex. 1, 13:4-19; Ex. 4 ¶ 2; Ex. 5, ¶ 2, Ex. 6, ¶ 2, Ex. 7, ¶ 2; Ex. 9, ¶¶ 2, 3, 9, 10; Ex. 10 , ¶2. 9. In his deposition, Defendant Zaslavskiy admits that Defendants paid all Plaintiffs a daily rate of pay that did not vary depending on the amount of hours that they actually worked per day or per week. Ex. 1, 35:17-25. 10. Each Plaintiff was paid weekly by check. Ex. 1, 35:17-25. 11. Defendant Zaslavskiy is in charge of payroll and claims to be responsible for maintaining employment records. Ex. 1, 20:8-23; Ex. 9, ¶¶ 2, 3, 9, 10. PLAINTIFFS ARE EACH COVERED INDIVIDUALLY UNDER THE FLSA 12. Plaintiffs all worked in New York at Defendants’ Brooklyn location. Ex. 9 ¶ 1. 13. Plaintiffs’ jobs entailed physically carrying packages and placing them adjacent to the delivery truck, at which time the driver would load and arrange the packages for delivery Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 2 of 14 PageID #: 236 3 onto the truck. Plaintiffs were also responsible for occasionally delivering the packages, on foot, to their intended recipients. 14. As part of their jobs, Plaintiffs all handled packages, on a daily basis, that were shipped from outside of New York. Ex. 4 ¶13; Ex. 5 ¶ 13; Ex. 6 ¶ 13; Ex. 7 ¶ 13; Ex. 10 ¶ 13. 15. Plaintiffs, also as a part of their job duties, on a daily basis would handle packages that were to be shipped to places outside of New York. Ex. 4 ¶13; Ex. 5 ¶ 13; Ex. 6 ¶ 13; Ex. 7 ¶ 13; Ex. 10 ¶ 13. DEFENDANTS’ LACK OF ADEQUATE RECORDS AND THEIR FAILURE TO PAY OVERTIME TO PLAINTIFFS 16. CAZ- 59 has been in operation since 2010. Ex. 1, 12:4-9. 17. At no point, from the day that CAZ-59 began operations until the day this lawsuit was filed, did CAZ-59 or Defendant Zaslavskiy keep records tracking the number of hours that their employees, including Plaintiffs, actually worked per day or week. Ex 1, 21:20-15; Ex. 9, ¶¶ 4, 5, 7, 8. 18. From the inception of the company until the filing of this lawsuit, Defendants paid all of their employees, including Plaintiffs, a flat rate per day regardless of the number of hours that they worked per day or week. Ex. 1, 25:11-18, 26:6-9, 30:14-18, 31:20-25, 32:1-4, 35:17-25. 19. As Defendants admit, when Defendants paid Plaintiffs, Defendants never provided them with any written statements that accurately listed, among other things, their: rate or rates of pay and basis thereof; gross wages; deductions; and net wages. Ex. 1, 28:13-16, Ex. 2, ¶ 11; Ex. 4, ¶ 8, Ex. 5 ¶¶ 8, 9; Ex. 6, ¶¶ 9, 10; Ex. 7. ¶¶ 9, 10; Ex. 10, ¶¶ 9, 10. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 3 of 14 PageID #: 237 4 20. From the inception of the company until the filing of this lawsuit, Defendants paid Plaintiffs by check on a weekly basis. Ex. 1, 35:21-25. 21. Defendant Zaslavskiy admits that all employees of CAZ-59, including Plaintiffs, worked more than forty hours per week. Ex. 1, 22: 2-4. KEVIN SOSA’S EMPLOYMENT WITH DEFENDANTS 22. Defendants employed Sosa from in or about August 2012 through in or about April 2013 as an assistant to a delivery truck driver. Ex. 1, 24:16-20; Ex. 2, ¶ 2; Ex. 4, ¶ 2 23. As an assistant to the driver, Sosa’s basic job duties entailed physically carrying packages and placing them adjacent to the delivery truck, at which time the driver would load and arrange the packages for delivery onto the truck. Sosa was also responsible for occasionally delivering the packages, on foot, to their intended recipients. Ex. 1, 24:16-20; Ex. 2, ¶¶ 4, 5. 24. In addition, Sosa was a non-managerial employee and lacked any supervisory authority over any other employee of CAZ-59, and did not hire, fire, interview, promote, demote, or discipline the Defendants’ employees. Ex. 2, ¶ 6; Ex. 4, ¶ 3. 25. Sosa’s hours were logged through a FedEx scanner, which recorded when he arrived and left the warehouse facility on any given day, as well as the time in which the trucks departed from and returned to the warehouse. Ex. 2, ¶ 8; Ex. 4, ¶ 4. 26. CAZ-59 frequently required Sosa to stay at the warehouse facility and continue working after clocking-out on the scanner. Ex. 2, ¶ 8; Ex. 4, ¶ 4. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 4 of 14 PageID #: 238 5 27. During Sosa’s employment at CAZ-59, he rarely, if ever, received any meal breaks during his work shift and typically worked without breaks of any kind. Ex. 2, ¶ 9; Ex. 4, ¶ 5. 28. In his deposition, Defendant Zaslavskiy admitted that he paid Mr. Sosa a flat daily rate, and that the daily rate of pay did not change even if Mr. Sosa worked more than eight hours per day. Ex. 1, 26:6-9, Ex. 2, ¶ 10; Ex. 4, ¶¶ 6, 7, 10. 29. As Defendant Zaslavskiy admitted in his deposition, while each check took out an amount in taxes, CAZ-59 did not provide any pay stubs or wage statements explaining the deductions from Sosa’s income, his hourly rate, his overtime rate of pay, or the amount of hours he had worked per week. Ex. 1, 28:13-16, Ex. 2, ¶ 11; Ex. 4, ¶ 8. 30. From in or about August 2012 through in or about April 2013, Sosa worked from 7:00 a.m. to 7:00 p.m., five days per week, for a total of sixty hours per week. During the month of December 2012, Plaintiff worked from 7:00 a.m. to 7:00 p.m., six days per week, for a total of seventy-two hours per week. Ex. 1, 26:15-17; Ex. 2, ¶¶ 7-8; Ex. 4, ¶ 10. 31. As Defendant Zaslavskiy admitted in his deposition, Defendants did not pay Sosa contemporaneous overtime premiums for all hours that he worked over forty per week. Ex. 1, 26:6-9, 15-17, 28:13-16. ; Ex. 4, ¶¶ 11, 12. 32. Sosa, as a part of his job duties, handled packages on a daily basis that were shipped from out of state locations and/or were to be shipped to out of state locations Ex. 4, ¶13. MICHELANGELO FRANQUI’S EMPLOYMENT WITH DEFENDANTS 33. Defendants employed Michelangelo Franqui from in or about December 2011 until March 2013 as an assistant to a delivery truck driver. Franqui Decl. (Ex. 7), ¶ 2. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 5 of 14 PageID #: 239 6 34. As an assistant to the driver, Franqui’s basic job duties entailed physically carrying packages and placing them adjacent to the delivery truck, at which time the driver would load and arrange the packages for delivery onto the truck. Franqui was also responsible for occasionally delivering the packages, on foot, to their intended recipients. Ex. 7, ¶ 3. 35. In addition, Franqui was a non-managerial employee and lacked any supervisory authority over any other employee of CAZ-59, who did not hire, fire, interview, promote, demote, or discipline the Defendants’ employees. Ex. 7, ¶ 4. 36. Franqui’s hours were logged through a FedEx scanner, which recorded when he arrived and left the warehouse facility on any given day, as well as the time in which the trucks departed from and returned to the warehouse. Ex. 7, ¶ 5. 37. CAZ-59 frequently required Franqui to stay at the warehouse facility and continue working after clocking-out on the scanner. Ex. 7, ¶ 5. 38. During Franqui’s employment at CAZ-59, he rarely, if ever, received any meal breaks during his work shift and typically worked without breaks of any kind. Ex. 7, ¶ 6. 39. From in or about December 2011 through in or about March 2013, Defendants paid Franqui a flat, weekly salary of $550.00, regardless of the amount of hours he worked per week, by check. Ex. 7, ¶ 7. 40. While each check took out an amount in taxes, CAZ-59 did not provide any pay stubs or wage statements explaining the deductions from Franqui’s income, his hourly rate, his overtime rate of pay, or the amount of hours he had worked per week. Ex. 7, ¶ 9. 41. From in or about December 2011, and thus from April 9, 2011, through in or about until March 2013, Defendants did not provide Franqui with a wage statement setting forth his hours and rate of pay. Ex. 7, ¶¶ 9, 10. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 6 of 14 PageID #: 240 7 42. From in or about December 2011 through in or about March 2013, Franqui worked from 7:00 a.m. to 7:00 p.m., five days per week, for a total of sixty hours per week. During the holiday seasons, specifically during the months of November through February, Franqui worked from 7:00 a.m. to 7:00 p.m., six days per week, for a total of seventy-two hours per week. Ex. 7, ¶ 11. 43. Defendants did not pay Franqui contemporaneous, overtime premiums for all hours that he worked over forty per week. Ex. 7, ¶12, 13. 44. Franqui, as a part of his job duties, handled packages on a daily basis that were shipped from out of state locations and/or were to be shipped to out of state locations Ex. 7, ¶14. JEAN MATEO’S EMPLOYMENT WITH DEFENDANTS 45. Defendants employed Jean Mateo as an assistant to a delivery truck driver from in December 19, 2009 through October 5, 2012. Mateo Decl. (Ex. 10) ¶ 2; Ex. 1 31:15-17, 32:5-7. 46. As an assistant to the driver, Mateo’s basic job duties entailed physically carrying packages and placing them adjacent to the delivery truck, at which time the driver would load and arrange the packages for delivery onto the truck. Mateo was also responsible for occasionally delivering the packages, on foot, to their intended recipients. Ex. 1, 24:16-20; Ex. 10, ¶ 3. 47. In addition, Mateo was a non-managerial employee and lacked any supervisory authority over any other employee of CAZ-59, and he did not hire, fire, interview, promote, demote, or discipline the Defendants’ employees. Ex. 10, ¶ 4. 48. Mateo’s hours were logged through a FedEx scanner, which recorded when he arrived and left the warehouse facility on any given day, as well as the time in which the trucks departed from and returned to the warehouse. Ex. 1, 33:8-10; Ex. 10, ¶ 5. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 7 of 14 PageID #: 241 8 49. CAZ-59 frequently required Mateo to stay at the warehouse facility and continue working after clocking-out on the scanner. Ex. 10, ¶ 5. 50. During Mateo’s employment at CAZ-59, he received one fifteen minute break per day. Ex. 10, ¶ 6. 51. From December 19, 2009 through October 5, 2012, for each day Mateo worked, regardless of the amount of hours worked, CAZ-59 paid him a flat daily rate of $100.00. Mateo was paid weekly by check. Ex. 1, 31: 22-24, 32:1-4; Ex. 10, ¶¶ 7, 8. 52. While each check took out an amount in taxes, CAZ-59 did not provide any pay stubs or wage statements explaining the deductions from Mateo’s income, his hourly rate, his overtime rate of pay, or the amount of hours he had worked per week. Ex. 10, ¶ 9. 53. From in or about December 19, 2009, and thus from April 9, 2011, through October 5, 2012, Defendants did not provide Mateo with a wage statement setting forth his hours and rate of pay. Ex. 1, 31:12-25: 32:1-13; Ex. 10, ¶¶ 7, 9. 54. From December 19, 2009 through October 5, 2012, Mateo worked from 7:00 a.m. to 7:00 p.m., five days per week, for a total of sixty hours per week. During the months of November through January in 2009, 2010, 2011 and 2012, Mateo worked from 7:00 a.m. to 7:00 p.m., six days per week, for a total of seventy-two hours per week. Ex. 1, 26:15-17; Ex. 10, ¶ 11. 55. As Defendant Zaslavskiy admitted in his deposition, Defendants did not pay Mateo contemporaneous, overtime premiums for all hours that he worked over forty per week. Ex. 1, 31:25, 32:1-4, 26:6-9, 15-17, 28:13-16; Ex. 10, ¶¶ 12, 13. 56. Mateo, as a part of his job duties, handled packages on a daily basis that were shipped from out of state locations and/or were to be shipped to out of state locations Ex. 10, ¶14. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 8 of 14 PageID #: 242 9 ALBERT MALDONADO’S EMPLOYMENT WITH DEFENDANTS 57. Defendants employed Albert Maldonado as an assistant to a delivery truck driver from in or about January 2012 through January 2013. Maldonado Decl. (Ex. 5) ¶ 2; Ex. 3, ¶ 2; Ex. 1, 30:6-8, 30:8-9. 58. As an assistant to the driver, Maldonado’s basic job duties entailed physically carrying packages and placing them adjacent to the delivery truck, at which time the driver would load and arrange the packages for delivery onto the truck. Maldonado was also responsible for occasionally delivering the packages, on foot, to their intended recipients. Ex. 1, 24:16-20; Ex. 3, ¶¶ 4, 5, 6. 59. In addition, Maldonado was a non-managerial employee and lacked any supervisory authority over any other employee of CAZ-59, who did not did not hire, fire, interview, promote, demote, or discipline the Defendants’ employees. Ex. 3, ¶ 6; Ex. 5, ¶¶ 3, 6. 60. Maldonado’s hours were logged through a FedEx scanner, which recorded when he arrived and left the warehouse facility on any given day, as well as the time in which the trucks departed from and returned to the warehouse, and frequently required Maldonado to stay at the warehouse facility and continue working after clocking-out on the scanner. Ex. 1, 31:9-11; Ex. 3, ¶ 8, 9; Ex. 5 ¶ 4. 61. During Maldonado’s employment at CAZ-59, he rarely, if ever, received any meal breaks during his work shift and typically worked without breaks of any kind. Ex. 3, ¶ 9; Ex. 5, ¶ 5. 62. From in or about January 2012 through in or about January 2013, Defendants paid Maldonado a flat, daily rate of $120, regardless of the amount of hours he worked per day. Maldonado was paid weekly by check. Ex. 1, 30:14-24, 31:1-6, 22-24; Ex. 3, ¶ 10; Ex. 5, ¶ 6. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 9 of 14 PageID #: 243 10 63. While each check took out an amount in taxes, CAZ-59 did not provide any pay stubs or wage statements explaining the deductions from Maldonado’s income, his hourly rate, his overtime rate of pay, or the amount of hours he had worked per week. Ex. 3 ¶ 11; Ex. 5, ¶ 8. 64. From in or about January 2012, and thus from April 9, 2011, through in or about January 2013, Defendants did not provide Maldonado with a wage statement setting forth his hours and rate of pay. Ex. 1, 28:13-16; Ex. 5, ¶ 8. 65. From in or about January 2012 through in or about January 2013, Maldonado worked from 7:00 a.m. to 7:00 p.m., five days per week, for a total of sixty hours per week. During the month of December 2012, Maldonado worked from 7:00 a.m. to 7:00 p.m., six days per week, for a total of seventy-two hours per week. Ex. 1, 30:14-24, 31:1-6; Ex. 3, ¶ 7; Ex. 5, ¶ 10. 66. As Defendant Zaslavskiy admitted in his deposition, Defendants did not pay Maldonado contemporaneous, overtime premiums for all hours that he worked over forty per week. Ex. 1, 30:14-25, 31:1-11; Ex. 5, ¶¶ 11, 12. 67. Maldonado, as a part of his job duties, handled packages on a daily basis that were shipped from out of state locations and/or were to be shipped to out of state locations Ex. 5, ¶13. LUIS MIGUEL SANTIAGO’S EMPLOYMENT WITH DEFENDANTS 68. Defendants employed Luis Miguel Santiago from in or about November 2008 until January 1, 2013 as an assistant to a delivery truck driver. Santiago Decl. (Ex. 6), ¶ 2. 69. As an assistant to the driver, Santiago’s basic job duties entailed physically carrying packages and placing them adjacent to the delivery truck, at which time the driver Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 10 of 14 PageID #: 244 11 would load and arrange the packages for delivery onto the truck. Santiago was also responsible for occasionally delivering the packages, on foot, to their intended recipients. . Ex. 6, ¶ 3. 70. In addition, Santiago was a non-managerial employee and lacked any supervisory authority over any other employee of CAZ-59, who did not hire, fire, interview, promote, demote, or discipline the Defendants’ employees. Ex. 6, ¶ 4. 71. Santiago’s hours were logged through a FedEx scanner, which recorded when he arrived and left the warehouse facility on any given day, as well as the time in which the trucks departed from and returned to the warehouse. Ex. 6, ¶ 5. 72. CAZ-59 frequently required Santiago to stay at the warehouse facility and continue working after clocking-out on the scanner. Ex. 6, ¶ 5. 73. During Santiago’s employment at CAZ-59, he received one fifteen minute break per day. Ex. 6, ¶ 6. 74. From 2008 until 2010 Santiago was paid a flat weekly salary of $450 per week in cash, regardless of the amount of hours that he had worked that week. Ex. 6, ¶ 7. 75. From 2011 until the date Santiago was fired on January 1, 2013, Santiago was paid a flat weekly salary of $470 by check, regardless of the amount of hours he had worked each week. Ex. 6, ¶ 8. 76. While each check took out an amount in taxes, CAZ-59 did not provide any pay stubs or wage statements explaining the deductions from Santiago’s income, his hourly rate, his overtime rate of pay, or the amount of hours he had worked per week. Ex. 6, ¶ 9. 77. From in or about November 2008, and thus from April 9, 2011, through January 1, 2013, Defendants did not provide Santiago with a wage statement setting forth his hours and rate of pay. Ex. 6, ¶ 9. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 11 of 14 PageID #: 245 12 78. From in or about November 2008 through January 1, 2013, Santiago worked from 7:00 a.m. to 6:00 p.m., five days per week, for a total of fifty-five hours per week. Ex. 6, ¶ 10. 79. Defendants did not pay Santiago contemporaneous, overtime premiums for all hours that he worked over forty per week. Ex. 6, ¶¶ 11, 12. 80. Santiago, as a part of his job duties, handled packages on a daily basis that were shipped from out of state locations and/or were to be shipped to out of state locations Ex. 6, ¶13. DEFENDANTS’ LACK OF GOOD FAITH 81. Defendants admit they never consulted any government agency, attorney, or accountant regarding their overtime and/or payroll practices. Ex.1, 41:8-10. 82. In his deposition, Defendant Zaslavskiy admits that neither he nor anyone representing the company ever sought advice regarding the proper payment of wages to Defendants’ employees. Ex. 1, 41:4-7. 83. Defendants admit that they were aware of the laws regarding proper payment of employees, and Defendant Zaslavskiy specifically testified that he was aware that he had to “pay the amount of hours and days that the employee earned” and further testified that he knows that a proper overtime rate is “estimated one and one half times more than the regular time.” Ex. 1, 41:11-24. Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 12 of 14 PageID #: 246 13 84. Defendants admit knowing that an employee who works over forty hours in a given workweek is entitled to overtime compensation. Ex. 1, 41:25, 42:1-3. Dated: Great Neck, New York September 9, 2016 Respectfully submitted, BORRELLI & ASSOCIATES, P.L.L.C. Attorneys for Plaintiffs 1010 Northern Boulevard, Suite 328 Great Neck, New York 11021 Tel. (516) 248-5550 Fax. (516) 248-6027 By: ________________________________________ CAITLIN A. McNAUGHTON, ESQ. (CM 6915) Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 13 of 14 PageID #: 247 14 CERTIFICATE OF SERVICE I, Caitlin A. McNaughton, Esquire, hereby certify that on this date, September 9, 2016, a true and correct copy of the NOTICE OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56, PLAINTIFF’S RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS, MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, THE DECLARATION OF CAITLIN A. McNAUGHTON, ESQ. IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, as well as all supporting exhibits, were served via regular mail on the following: Roman Leonov, Esq. Lust & Leonov, P.C. 75 Maiden Lane, #506 New York, New York 10036 Brett R. Gallaway, Esq. McLaughlin & Stern, LLP 260 Madison Avenue New York, New York 10016 __________ ______________________________ CAITLIN A. McNAUGHTON, ESQ. (CM 6915) Case 1:13-cv-04826-CLP Document 70-1 Filed 09/09/16 Page 14 of 14 PageID #: 248 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x KEVIN SOSA, on behalf of himself and all others similarly-situated, Plaintiff, -against- CAZ-59 EXPRESS, INC.; SERGEY ZASLAVSKIY, an individual, Defendants. -----------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT BORRELLI & ASSOCIATES, P.L.L.C. Attorneys for Plaintiffs 1010 Northern Boulevard, Suite 328 Great Neck, New York 11021 Tel.: (516) 248 - 5550 Fax: (516) 248 - 6027 Caitlin A. McNaughton, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. Case No.: 13-cv-04826 (CBA)(CLP) Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 1 of 22 PageID #: 249 i TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………………………....ii I. PRELIMINARY STATEMENT………………………………………………………..1 II. BACKGROUND FACTS……………………………………………………………..…3 III. RELEVANT PROCEDURAL HISTORY………………...…………………………....3 IV. STANDARD OF REVIEW……………………….……………………………………..4 V. ARGUMENT………………………………………………….…………………….........5 A. DEFENDANTS ARE LIABLE TO PLAINTIFFS UNDER THE FLSA AND THE NYLL BECAUSE IT IS UNDISPUTED THAT PLAINTIFFS WORKED OVER FORTY HOURS PER WEEK AND DEFENDANTS DID NOT PAY THEM OVERTIME PREMIUMS.………………………..…..….5 1) Summary of Undisputed Facts Relevant to this Issue…………………………5 2) Applicable Law………………………………………………………………..6 3) Based on those Undisputed Facts and Applicable Law, the Court Must Find Defendants Liable for Violating the FLSA’s and NYLL’s Overtime Provisions...........................................................................................9 B. PLAINTIFFS ARE EACH INDIVIDUALLY COVERED UNDER THE FLSA…………..…………………………………………...………..10 C. PLAINTIFFS ARE ENTITLED TO AN ORDER STRIKING THE DEFENDANTS’ SIXTH AFFIRMATIVE DEFENSE OF GOOD FAITH. …………………………………………………………………………...…11 D. DEFENDANT ZASLAVSKIY IS AN EMPLOYER UNDER THE FLSA AND THE NYLL.…………..…………………….………...13 VI. CONCLUSION………………………………………..............................................16 Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 2 of 22 PageID #: 250 ii TABLE OF AUTHORITIES CASE LAW Amaya v. Superior Tile and Granite Corp., 2012 WL 130425 (S.D.N.Y. Jan. 17, 2012) ................................................................................ 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................................................................................................... 4 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) .................................................................................................................... 6 Barfield v. New York City Health and Hosp. Corp., 537 F.3d 132 (2d Cir. 2008) ...................................................................................................... 12 Benitez v. Demco of Riverdale, LLC, 2015 WL 803069 (S.D.N.Y. Feb. 19, 2015); .............................................................................. 7 Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372 (E.D.N.Y. 2012) ......................................................................................... 7 Boekemeier v. Fourth Universalist Soc'y in the City of New York, 86 F. Supp. 2d 280 (S.D.N.Y. 2000) ......................................................................................... 11 Brock v. Wilamowsky, 833 F.2d 11 (2d Cir. 1987) ........................................................................................................ 12 Callier v. Superior Bldg. Services, Inc., 2010 WL 5625906 (E.D.N.Y. Dec. 22, 2010) ............................................................................ 6 Cardoza v. Mango King Farmers Mkt. Corp., 2015 WL 5561033 (E.D.N.Y. Sept. 1, 2015) ............................................................................ 11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................... 4 Davis v. Abercrombie & Fitch Co., 2008 WL 4702840 (S.D.N.Y. Oct. 23, 2008) ............................................................................. 8 Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 3 of 22 PageID #: 251 iii Table of Authorities (continued) Drug Mart Pharmacy Corp. v. American Home Products Corp., 472 F. Supp. 2d 385 (E.D.N.Y. 2007) ......................................................................................... 4 Guallpa v. N.Y. Pro Signs, Inc., 2014 WL 2200393 (S.D.N.Y. May 27, 2014) ............................................................................. 7 Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d Cir. 1999) ...................................................................................................... 14 Huerta v. Victoria Bakery, 2012 WL 1107655 (E.D.N.Y. Mar.30, 2012) ........................................................................... 10 Irizarry v. Catsimatidis, 722 F.3d 99 (2d Cir. 2013) ........................................................................................................ 13 Karic v. Major Auto. Companies Inc., 992 F. Supp. 2d 196 (E.D.N.Y. 2014) ....................................................................................... 13 Kaur v. Royal Arcadia Palace, Inc., 643 F. Supp. 2d 276 (E.D.N.Y. 2007) ....................................................................................... 10 Kim v. 511 E. 5TH St., LLC, 2015 WL 5732079 (S.D.N.Y. Sept. 30, 2015) .......................................................................... 14 Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011) ...................................................................................................... 12 Marangos Constr. Corp. v. New York State Dep’t of Labor, 216 A.D.2d 758 (3rd Dept. 1995) ............................................................................................... 6 Mclean v. Garage Mgm’t Corp., 2012 WL 1358739 (S.D.N.Y. Apr. 19, 2012) ........................................................................... 12 Mitchell v. Lublin, McGaughy & Assocs., 79 S.Ct. 260 (1959) ................................................................................................................... 10 Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 4 of 22 PageID #: 252 iv Table of Authorities (continued) Park v. Seoul Broad. Sys. Co., 2008 WL 619034 (S.D.N.Y. Mar. 6, 2008) ................................................................................ 6 Pineda-Herrera v. Da-Ar-Da, Inc., 2011 WL 2133825 (E.D.N.Y. May 26, 2011)........................................................................... 12 Ramirez v. Rifkin, 568 F. Supp. 2d 262 (E.D.N.Y. 2008) ......................................................................................... 7 Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58 (2d Cir. 1997) .......................................................................................................... 6 Santillan v. Henao, 2011 WL 4628752 (E.D.N.Y. Sept. 30, 2011) ............................................................................ 6 Seraphin v. TomKats, Inc., 2013 WL 940914 (E.D.N.Y. Mar. 11, 2013) .............................................................................. 8 Solis v. Cindy’s Total Care, Inc., 2012 WL 28141 (S.D.N.Y. Jan. 5, 2012) .................................................................................... 8 Wong v. Hunda Glass Corp., 2010 WL 2541698 (S.D.N.Y. June 23, 2010) ............................................................................. 6 Xelos v. Mavros, 2005 WL 2385724 (E.D.N.Y. Sept. 28, 2005) .......................................................................... 10 STATUTES 29 U.S.C. § 203(b) ........................................................................................................................ 10 29 U.S.C. § 203(d) ........................................................................................................................ 13 29 U.S.C. § 203(r)(1) .................................................................................................................... 10 Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 5 of 22 PageID #: 253 v 29 U.S.C. §§ 207(a)(1) .................................................................................................................... 6 Table of Authorities (continued) NYLL § 160 .................................................................................................................................... 6 NYLL §§ 198(1-a), 663(1) ........................................................................................................... 12 OTHER AUTHORITIES Fed. R. Civ. P. 30(b)(6)................................................................................................................... 5 Fed. R. Civ. P. 56 ........................................................................................................................ 1, 4 Fed. R. Civ. P. 56(a) ....................................................................................................................... 4 REGULATIONS 29 C.F.R. § 778.112 ........................................................................................................................ 8 29 C.F.R. § 779.103 ...................................................................................................................... 10 N.Y. Comp. Codes R. & Res. Tit. 12, § 142-2.2 ........................................................................ 6, 8 Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 6 of 22 PageID #: 254 1 I. PRELIMINARY STATEMENT In this wage and hour action brought for violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”), named-Plaintiff Kevin Sosa (“Sosa”), and the four opt-in Plaintiffs, Albert Maldonado (“Maldonado”), Luis Miguel Santiago (“Santiago”), Michaelangelo Franqui (“Franqui”), and Jean Mateo (“Mateo”), (all five, collectively where appropriate, as “Plaintiffs”), submit this memorandum of law in support of their motion for partial summary judgment pursuant to Fed. R. Civ. P. 56.1 Plaintiffs assert claims against their former employers, CAZ-59 Express, Inc., a package and parcel shipping and delivery company that contracts with FedEx Corporation (“FedEx”) to deliver packages on FedEx routes, and that company’s owner and day-to-day overseer, Sergey Zaslavskiy, (both, collectively where appropriate, as “Defendants”). By this motion, Plaintiffs seek a ruling on four discrete issues prior to trial. First, Plaintiffs seek an order finding that there is no genuine issue of material fact that the Defendants are liable to Plaintiffs for violating the FLSA’s and NYLL’s overtime requirements, saving the issue of damages for trial. Second, Plaintiffs seek a ruling that they are each individually covered under the FLSA. Third, Plaintiffs seek a ruling striking Defendants’ sixth affirmative defense, which is that Defendants acted in good faith, as there is no evidence of any kind that Defendants took any steps to comply with the dictates of the FLSA and NYLL, and Defendants admit that they did not do so. Finally, Plaintiffs seek a ruling that Sergey Zaslavskiy was their 1 Federal Rule of Civil Procedure 56(c) authorizes courts to grant partial summary judgment on liability. See, e.g., Ackerson v. City of White Plains, 702 F.3d 15, 22 (2d Cir. 2012), as amended (Dec. 4, 2012) (case “remanded with instructions to grant [Plaintiff’s] motion for partial summary judgment on liability”). Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 7 of 22 PageID #: 255 2 employer within the meaning of the FLSA and the NYLL, and is thus individually liable to Plaintiffs under those statutes. The undisputed facts clearly support Plaintiffs’ requests with respect to these issues. First, all Plaintiffs worked as non-exempt employees for Defendants. Plaintiffs’ Rule 56.1 Statement of Undisputed Material Facts (“SOF” or “Statement of Facts”) ¶¶ 9, 10, 12, 13, 14, 15, 22, 33, 45, 57, 68, filed contemporaneously herewith. There is no dispute that each Plaintiff worked in excess of forty hours per week. SOF ¶¶ 30, 42, 54, 65. Further, there is no dispute that Defendants did not pay each Plaintiff contemporaneous overtime premiums. SOF ¶¶ 9, 17, 19, 28, 30, 31, 39, 42, 43, 54, 55, 65, 66, 74, 74. Similarly, there is no dispute that Defendants did not maintain records of the hours that any of their employees, including Plaintiffs, worked. SOF ¶¶ 9, 17, 19, 29, 40, 52, 63, 76, 77. Thus, a finding of liability that Defendants did not comply with the FLSA’s and NYLL’s overtime provisions as a matter of law is appropriate. Furthermore, it is undisputed that Plaintiffs are each individually covered under the FLSA, as it is undisputed that they each, on a daily basis, regularly handled packages that were shipped into and out of New York from other states. Thus, a finding that there is individual coverage under the FLSA with respect to each Plaintiff is appropriate. Additionally, Plaintiffs are also entitled to an order striking the Defendants’ sixth affirmative defense from their Answer, which is that Defendants acted in good faith in their attempt to comply with the FLSA and NYLL. The undisputed deposition testimony and interrogatory responses confirm that Defendants did not make even the minutest of efforts to comply with those laws despite being aware of their requirements. As a result, the Court should issue an order striking the Defendants’ sixth affirmative defense from their Answer. Finally, Plaintiffs are entitled to summary judgment on the issue of whether Defendant Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 8 of 22 PageID #: 256 3 Sergey Zaslavskiy was their employer under the FLSA and the NYLL and is therefore individually liable for the aforementioned violations of the FLSA and the NYLL along with the corporate entity. The undisputed evidence proves that he is. II. BACKGROUND FACTS For a recitation of all facts relevant to this motion described in narrative fashion, Plaintiffs respectfully refer the Court to their Statement of Facts. III. RELEVANT PROCEDURAL HISTORY Plaintiff Sosa commenced this action on August 23, 2013, alleging violations of the FLSA and the NYLL, on behalf of himself and all those similarly-situated, against CAZ-59 Express, Inc., and Sergey Zaslavskiy. Dkt. No. 1. Plaintiff Sosa, who worked for Defendants from in or about August of 2012 to April of 2013, filed his opt-in form concurrently with the Complaint. Dkt. No. 1. On November 14, 2013, Jean Mateo, who worked for Defendants from December 19, 2009 to October 5, 2012, opted-into the case by filing his consent to join form on the docket. Dkt. No. 8. On November 18, 2013, Albert Maldonado, who worked for Defendants from in or about January of 2012 to January of 2013, filed his consent form on the docket. Dkt. No. 10. On April 25, 2014, Luis Santiago, who worked for Defendants from in or about November 2008 until January 1, 2013, filed his opt-in form. Dkt. No. 21. On April 23, 2015, Michelangelo Franqui, who worked for Defendants from in or about December 2011 until March 2013, filed his consent form on the docket. Dkt. No. 20.2 At no point during this entire action have Defendants produced a single document reflecting the hours that the Plaintiffs worked, such as timesheets or any payroll information. See generally, SOF. On August 20, 2015, the court ordered that fact discovery be closed on October 2 While two additional individuals also previously joined this action, Derrick Merald and Keiry Polanco, both, via stipulation filed on June 16, 2016, dismissed their claims without prejudice. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 9 of 22 PageID #: 257 4 20, 2015. Dkt. No. 42. That date came and went without Defendants noticing or otherwise seeking to take even a single deposition. Declaration of Caitlin A. McNaughton, Esq. (“McNaughton Decl.”) ¶3. By order dated February 24, 2016, the court further directed that any and all depositions still outstanding must be completed by April 29, 2016. Dkt. No. 51. The court closed discovery on May 12, 2016. Dkt. No. 53. Defendants did not seek to take a single deposition prior to that date. McNaughton Decl. ¶¶ 8, 11. After a pre-motion conference on June 28, 2016, at which a briefing schedule was set, this motion for partial summary judgment follows. Dkt. No. 61. IV. STANDARD OF REVIEW A party may move for summary judgment as to any claim, or part of any claim, upon a showing that “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “One of the principle purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses.” Drug Mart Pharmacy Corp. v. American Home Products Corp., 472 F. Supp. 2d 385, 393 (E.D.N.Y. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “As an initial matter, the moving party bears the burden of establishing the absence of any genuine issue.” Id. “While this showing need not require the movant to introduce evidence negating the opponent’s claim, it must point out to the district court that there is an absence of evidence to support the nonmoving party’s case.” Id. at 394. When a properly supported motion for summary judgment is made, “the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The ultimate inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 10 of 22 PageID #: 258 5 V. ARGUMENT A. DEFENDANTS ARE LIABLE TO PLAINTIFFS UNDER THE FLSA AND THE NYLL BECAUSE IT IS UNDISPUTED THAT PLAINTIFFS WORKED OVER FORTY HOURS PER WEEK AND DEFENDANTS DID NOT PAY THEM OVERTIME PREMIUMS. 1) Summary of Undisputed Facts Relevant to This Issue First, the Court should grant summary judgment in favor of Plaintiffs as to Defendants’ liability for violating the FLSA and the NYLL by failing to pay them overtime premiums for all hours worked over forty per workweek at the rate of time and one-half Plaintiffs’ respective standard rates of pay. Indeed, here, it is undisputed that each Plaintiff worked more than forty hours a week throughout his employment. To conclusively establish this, first, in the absence of their deposition testimony, each Plaintiff has submitted a sworn declaration that he worked more than forty hours per week. SOF ¶¶ 9, 10, 12, 13, 14, 15, 22, 30, 33, 42, 45, 54, 57, 65, 68. Specifically, Plaintiffs Sosa, Mateo, Maldonado, and Franqui swear that they each worked at least sixty hours per week during most of the year, and no less than seventy-two hours per week during the winter months. Id. Plaintiff Santiago, for his part, states that he worked fifty-five hours per week throughout his employment. Id. Confirming this, at the deposition of Sergey Zaslavskiy, given on behalf of Defendant CAZ-59, Inc., pursuant to Federal Rule of Civil Procedure 30(b)(6), Defendants admitted that Plaintiffs worked over forty hours per week. SOF ¶¶ 21, 31, 66, 55. Further, Defendants admitted at deposition that they did not maintain records tracking the number of hours that Plaintiffs worked. SOF ¶¶ 9, 17, 19, 29, 40, 52, 63, 76, 77. With respect to their pay, again, in the absence of their depositions, each Plaintiff has submitted a sworn declaration stating that he was paid a flat rate regardless of hours actually worked. Specifically, the declarations establish that Defendants paid Plaintiff Santiago and Plaintiff Franqui a flat weekly salary throughout their employment that did not include overtime Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 11 of 22 PageID #: 259 6 premiums or every change week-to-week, SOF ¶¶ 39, 43, 74, 75. Defendants paid Plaintiffs Sosa, Mateo, and Maldonado, a flat daily rate that also did not include overtime premiums for time over forty hours per week. SOF ¶¶ 9, 17, 19, 28, 30, 31, 42, 43, 54, 55, 65, 66. For his part, Defendant Zaslavskiy admitted in his 30(b)(6) deposition that Defendants did not pay employees overtime, that Plaintiffs routinely worked more than eight hours per day, and that the flat rate of pay that Defendants paid to their employees did not change even if the employee worked in excess of forty hours per week. SOF ¶¶ 9, 17, 19, 28, 29, 40, 51, 52, 55, 62, 63, 69, 76, 77, 83, 84. Simply put, it is undisputed that Defendants never paid Plaintiffs overtime premiums. 2) Applicable Law “The FLSA and NYLL require employers to ‘compensate employees who work over forty hours per week with overtime pay at the rate of one and one-half times the regular rate.’” Callier v. Superior Bldg. Services, Inc., 2010 WL 5625906, at *1 (E.D.N.Y. Dec. 22, 2010) (quoting Wong v. Hunda Glass Corp., 2010 WL 2541698, at *2 (S.D.N.Y. June 23, 2010) (citing 29 U.S.C. §§ 207(a)(1)); see also N.Y. Lab. Law § 160, N.Y. Comp. Codes R. & Res. Tit. 12, § 142-2.2. In both FLSA and NYLL cases where an employer does not maintain adequate records, an employee carries out his burden of proving hours worked by producing sufficient evidence to show the amount and extent that he worked as a matter of just and reasonable inference. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946); see also Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997). Plaintiffs can meet this burden “by relying on recollection alone.” Santillan v. Henao, 2011 WL 4628752, at *16 (E.D.N.Y. Sept. 30, 2011). The NYLL applies a similar, but even more demanding standard to employers on such claims. Park v. Seoul Broad. Sys. Co., 2008 WL 619034, at *8, n.13 (S.D.N.Y. Mar. 6, 2008); Marangos Constr. Corp. v. New York State Dep’t of Labor, 216 A.D.2d 758, 759-60 (3d Dept. 1995). “The burden then shifts to Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 12 of 22 PageID #: 260 7 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.” Anderson, 328 U.S. at 687-88; see also Ramirez v. Rifkin, 568 F. Supp. 2d 262, 273 (E.D.N.Y. 2008) (stating that after the employer meets his initial burden, “[t]he burden then shifts to the employer to show that the inference is not reasonable.”). In addition, “there is a rebuttable presumption that an employer’s payment of a weekly salary represents compensation for the first 40 hours of an employee’s work-week; the burden is on the employer to rebut this presumption with evidence that the employer and employee had an agreement that the employee’s weekly compensation would cover a different number of hours.” Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 385 (E.D.N.Y. 2012). Furthermore, employers can only rebut this presumption “with proof of an explicit agreement as to the inclusion of an overtime premium in salary paid for more than 40 hours’ work.” Benitez v. Demco of Riverdale, LLC, 2015 WL 803069, at *2 (S.D.N.Y. Feb. 19, 2015); Guallpa v. N.Y. Pro Signs, Inc., 2014 WL 2200393, at *3 (S.D.N.Y. May 27, 2014); Amaya v. Superior Tile and Granite Corp., 2012 WL 130425, at *6-9 (S.D.N.Y. Jan. 17, 2012) (agreement regarding weekly salary for more than forty-hour work week does not comply with statutes without explicit agreement as to inclusion of overtime premium); Giles v. City of New York, 41 F. Supp. 2d 308, 317 (S.D.N.Y. 1999). “Courts have made clear that unless the contracting parties intend and understand the weekly salary to include overtime hours at the premium rate, courts do not deem weekly salaries to include the overtime premium for workers regularly logging overtime, but instead hold that the weekly salary covers only the first 40 hours.” Berrios, 849 F. Supp. 2d at 385. Such an agreement cannot be inferred, as there must be evidence that the plaintiff understands that his weekly wages are intended to cover all hours worked and include overtime premiums. Id. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 13 of 22 PageID #: 261 8 (citing Giles, 41 F. Supp. 2d at 317). Further, so long as certain requirements are met, it is sometimes permissible under the FLSA and NYLL for employers to compensate employees with a daily rate of pay. 29 C.F.R. § 778.112 provides that: If the employee is paid a flat sum for a day's work or for doing a particular job, without regard to the number of hours worked in the day or at the job, and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked. He is then entitled to extra half- time pay at this rate for all hours worked in excess of 40 in the workweek. See also Seraphin v. TomKats, Inc., 2013 WL 940914, at *3 (E.D.N.Y. Mar. 11, 2013) (holding that the FLSA “permits the use of a daily rate that includes an overtime premium for daily hours in excess of 8 [hours]”); NYCRR § 142-2.2 (“An employer shall pay an employee for overtime at a wage rate of 1 ½ times the employee's regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29 USC 201 et seq., the Fair Labor Standards Act of 1938, as amended . . .”). Thus, as the plain language of those regulations make clear, this is not an exception to the FLSA’s and NYLL’s overtime requirements, as when a day-rate employee works more than forty hours in a workweek, he/she must receive overtime premium pay in addition to the total day-rate wages for the workweek. See Solis v. Cindy’s Total Care, Inc., 2012 WL 28141, at *8 (S.D.N.Y. Jan. 5, 2012) (holding that defendants violated the FLSA by paying their employees a fixed daily wage, without any provision for overtime); Davis v. Abercrombie & Fitch Co., 2008 WL 4702840, at *7 (S.D.N.Y. Oct. 23, 2008) (holding that overtime must be paid at “a rate not less than one and one-half times the regular rate at which [the employee] is employed”) (citing 29 C.F.R. § 778.112). New York had adopted this regulation. Id. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 14 of 22 PageID #: 262 9 3) Based on Those Undisputed Facts and Applicable Law, the Court Must Find Defendants’ Liable for Violating the FLSA’s and NYLL’s Overtime Provisions. Here, Defendants have not presented any evidence to rebut Plaintiffs’ recollection that they worked at least forty hours per week. Nor can they, as Defendants admitted at their 30(b)(6) deposition that Plaintiffs worked over forty hours in a workweek and they have no records reflecting the number of hours that Plaintiffs actually worked per week. As such, Defendants cannot, as a matter of law, rebut Plaintiffs’ recollection of how many hours they worked each week. Thus, there is no genuine dispute that Plaintiffs worked at least forty hours per week for Defendants. It is similarly undisputed that Defendants did not pay Plaintiffs overtime premiums for all hours worked each week over forty. Indeed, Defendants paid a flat daily rate to Plaintiffs Sosa, Mateo, and Maldonado, and a flat weekly salary to Plaintiff Franqui and Plaintiff Santiago. SOF ¶¶ 9, 17, 19, 28, 30, 31, 42, 43, 54, 55, 65, 66, 74, 75. Moreover, Defendants admit that the flat rate paid to each Plaintiff, for either the day or week, did not change regardless of the amount of hours that each Plaintiff actually worked. SOF ¶¶ 9, 21, 83. Defendant Zaslavskiy further testified that Defendants did not compensate Plaintiffs for any hours that they worked over forty per week, and thus there is no evidence in the record of any explicit agreement between Plaintiffs and Defendants that their flat weekly or daily pay included overtime premiums. SOF ¶¶ 9, 83, 84. In light of the foregoing, it is undisputed that the Defendants did not pay Plaintiffs overtime premiums for the hours that they worked over forty each week. As such, Defendants’ liability for unpaid overtime under the FLSA and NYLL is beyond dispute. The issue of damages, which turns on the amount of overtime hours worked per week, the method of calculating the overtime rate of pay, and the specific dates of employment for each Plaintiff, should be resolved at trial. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 15 of 22 PageID #: 263 10 B. PLAINTIFFS ARE EACH INDIVIDUALLY COVERED UNDER THE FLSA Individual employees “engaged in commerce or in the production of goods for commerce” are covered under the FLSA, regardless of whether their employer is an enterprise. 29 U.S.C. § 203(r)(1). “Commerce” is defined as “trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b). “The dispositive test for FLSA coverage asks whether a plaintiff was an employee in the channels of interstate commerce, as distinguished from [one] who merely affects that commerce.” Xelos v. Mavros, 2005 WL 2385724, at *4 (E.D.N.Y. Sept. 28, 2005) (citing Mitchell v. Lublin, McGaughy & Assocs., 79 S.Ct. 260, 262 (1959)). According to the United States Department of Labor, individual employees are engaged in commerce “when they are performing work involving or related to the movement of persons or things (whether tangibles or intangibles, and including information and intelligence)” between states. 29 C.F.R. § 779.103; Shim v Millennium Grp., 2009 WL 213667, at 2 (E.D.N.Y. Jan. 28, 2009) (imposing liability under the FLSA because “it is simply inconceivable” based on the nature of the defendants’ business, which was healthcare workers who stocked supplies, that the plaintiffs were not engaged in interstate commerce.”); Kaur v. Royal Arcadia Palace, Inc., 643 F. Supp. 2d 276 (E.D.N.Y. 2007) (noting as an example that “an employee could be engaged in commerce by regularly using the mail or the telephone between states, or traveling across state lines”). Indeed, courts frequently find FLSA coverage simply by analyzing the “nature of the employer’s business.” Huerta v. Victoria Bakery, 2012 WL 1100647, at *8 (E.D.N.Y. Feb. 17, 2012), accepted in relevant part sub nom. by, Huerta v. Victoria Bakery, 2012 WL 1107655 (E.D.N.Y. Mar.30, 2012). Further, the activity that is designated as participation in interstate commerce must be “a substantial part of the employee's work.” Boekemeier v. Fourth Universalist Soc'y in the City of New York, 86 F. Supp. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 16 of 22 PageID #: 264 11 2d 280, 285 (S.D.N.Y. 2000) (holding that accepting and handled packages from out of state on around a dozen occasions was sufficient to be considered a substantial part of an employee’s work and therefore he was individually covered under the FLSA). Employees whose work consists of moving goods that originated outside state lines are individually covered under the FLSA. See Cardoza v. Mango King Farmers Mkt. Corp., 2015 WL 5561033, at *16 (E.D.N.Y. Sept. 1, 2015) (holding that an employee who performed work such as receiving deliveries, stocking shelves, organizing, performing inventory and related tasks was covered under the FLSA). Here, Plaintiffs all worked in New York at Defendants’ Brooklyn location, and Plaintiffs’ jobs all entailed physically carrying packages and placing them adjacent to a delivery truck, at which time the driver would load and arrange the packages for delivery onto the truck and then deliver them to their intended destinations. Plaintiffs were also responsible for occasionally delivering packages, on foot, to their intended recipients. Many of these packages were shipped both to and from locations outside of New York. SOF ¶¶ 32, 44, 56, 67, 80. This is logical, as FedEx is a nationwide delivery service and Defendants’ business was based on contracts with FedEx to deliver packages on FedEx routes. SOF ¶ 2. Therefore, on a daily basis, it is undisputed that Plaintiffs were directly involved in the movement of goods across state lines. The Court should thus issue a ruling that each Plaintiff is individually covered under the FLSA. C. PLAINTIFFS ARE ENTITLED TO AN ORDER STRIKING THE DEFENDANTS’ SIXTH AFFIRMATIVE DEFENSE OF GOOD FAITH. Federal Rule of Civil Procedure 56(a) allows any party to move for summary judgment on any claim or defense. Here, as for their sixth affirmative defense, Defendants pleaded that “no liquidated damages may be recovered because at all times, Defendants acted in good faith and without a scintilla of malicious or willful intent with regard to the payment of employees.” But it is undisputed in the record that Defendants failed to take any affirmative steps to attempt to comply Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 17 of 22 PageID #: 265 12 with the FLSA and the NYLL. The good faith affirmative defense is relevant in this action because a court “is generally required to award a plaintiff liquidated damages equal in amount to actual damages.” Barfield v. New York City Health and Hosp. Corp., 537 F.3d 132, 150 (2d Cir. 2008). While an employer may avoid its obligation to pay liquidated damages by showing that it acted in subjective “good faith” with objectively “reasonable grounds” that its actions did not violate the FLSA, the Second Circuit has characterized this burden as “a difficult one” to meet. Id. Indeed, to avoid paying liquidated damages under the FLSA, an employer must conclusively show that it “took active steps to ascertain the dictates of the FLSA and then act[ed] to comply with them.” Id. Reliance on the employer’s own judgment is insufficient as a matter of law to satisfy the “active steps” requirement. Mclean v. Garage Mgm’t Corp., 2012 WL 1358739, at *5 (S.D.N.Y. Apr. 19, 2012). “With the bar set so high, the Second Circuit has confirmed that “double damages are the norm, single damages the exception.” Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987). Under the NYLL, prior to November 24, 2009, a plaintiff could only collect liquidated damages if he or she could establish that the defendant’s NYLL violation was “willful.” See NYLL §§ 198(1-a), 663(1) (in effect prior to November 2009). On November 24, 2009, however, the standard was changed to mirror the FLSA’s, and thus shifted the burden of proof to the employer to demonstrate good faith compliance to avoid the imposition of NYLL liquidated damages. See Kuebel v. Black & Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011); see also Pineda-Herrera v. Da- Ar-Da, Inc., 2011 WL 2133825, *4, n.9 (E.D.N.Y. May 26, 2011) (“The state provision has since been amended, effective November 24, 2009, to remove the requirement of willfulness and provide a defense mirroring the good-faith defense available under the FLSA.”). Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 18 of 22 PageID #: 266 13 Here then, the issue of whether Defendants can carry their burden of demonstrating their sixth affirmative defense of good faith is important and ripe for determination at this time. Defendants admitted at their 30(b)(6) deposition that they never consulted the United States Department of Labor, New York State Department of Labor, an attorney, or anyone else regarding their overtime policies. SOF ¶¶ 81, 82, 83. In fact, when asked if they had consulted any outside advice of any kind, Defendants responded: “never.” SOF ¶¶ 81, 82. Simply then, there is not any evidence that the Defendants took any active steps to ascertain the dictates of the FLSA or NYLL and act to comply with them. Thus, Defendants cannot, as a matter of law, meet their burden of proof with respect to their affirmative defense of good faith. As a result, Plaintiffs are entitled to an order striking it and eliminating this issue from those to be tried. D. DEFENDANT ZASLAVSKIY IS AN EMPLOYER UNDER THE FLSA AND THE NYLL. Lastly, the Court should determine that liability extends beyond the corporate defendant, and also attaches, as a matter of law, to Defendant Sergey Zaslavskiy, as he was unequivocally Plaintiffs’ “employer” during the time when Plaintiffs worked for CAZ-59. An “employer” under the FLSA includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d) (emphasis added). The “NYLL's broad definition of an employer includes ‘any person . . . employing any individual in any occupation, industry, trade, business or service or any individual . . . acting as employer.’” Karic v. Major Auto. Companies Inc., 992 F. Supp. 2d 196, 203 (E.D.N.Y. 2014) (quoting Irizarry v. Catsimatidis, 722 F.3d 99, 118 (2d Cir. 2013)). The overarching concern in determining whether an individual is an employer is whether he or she “possessed the power to control the workers in question, with an eye to the economic reality presented by the facts of each case.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 19 of 22 PageID #: 267 14 Cir. 1999); Kim v. 511 E. 5TH St., LLC, 2015 WL 5732079, at *9 (S.D.N.Y. Sept. 30, 2015). Therefore, to answer this question, courts apply the “economic reality” test, which considers whether the alleged employer: “(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.” Id. This non-exclusive, four factor “economic reality” test is based upon the totality of circumstances, with no one factor being dispositive. Id. Thus, if an individual is found to be an employer within the meaning of the “economic reality” test, then he or she is personally liable under the FLSA and the NYLL. E.g., Karic, 992 F. Supp. 2d 196 (holding individuals liable under the FLSA and NYLL who “possessed hiring and firing power, set work schedules, determined salaries, issued checks and drafted and signed employment agreements”). Here, there is no dispute that Defendant Zaslavskiy was Plaintiffs’ employer who acted directly in the interest of CAZ-59 when Plaintiffs were employed there. The first factor of the economic realities test is the authority to hire and fire employees, and Defendant Zaslavskiy testified during his deposition that he was the only one at CAZ-59 Inc. to have this authority. SOF ¶¶ 3, 4. The second factor involves supervision, and Defendant Zaslavskiy, the owner, operator, overseer, Chief Executive Officer, and 30(b)(6) witness for the corporate defendant testified that he supervised and controlled all of his employees’ work schedules and conditions of employment. SOF ¶¶ 3, 4, 5, 6, 7, 8, 9, 11. The third factor concerns setting rates and methods of payment, and Defendant Zaslavskiy admits that he set the rates and methods of pay for all employees of CAZ- 59. Id. As to the fourth factor, Defendant Zaslavskiy is in charge of payroll. SOF ¶¶ 5, 6, 7, 8, 9, 11. Taken together, it is clear that Defendant Zaslavskiy was Plaintiffs’ employer under the FLSA and the NYLL during the time that Plaintiffs worked at CAZ-59. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 20 of 22 PageID #: 268 15 Accordingly, because Defendant Zaslavskiy was their employer under the FLSA and the NYLL, Plaintiffs are entitled to an Order that he should be held personally liable, as a matter of law, for the Defendants’ FLSA and NYLL violations. E.g., Irizarry, 722 F.3d 99. Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 21 of 22 PageID #: 269 16 VI. CONCLUSION For the reasons set forth above, the Court should grant Plaintiffs’ motion for partial summary judgment. Dated: Great Neck, New York September 9, 2016 Respectfully submitted, BORRELLI & ASSOCIATES, P.L.L.C. Attorneys for Plaintiff 1010 Northern Boulevard, Suite 328 Great Neck, New York 11021 Tel. (516) 248-5550 Fax. (516) 248-6027 CAITLIN A. McNAUGHTON (CM 6915) ALEXANDER T. COLEMAN (AC 8151) MICHAEL J. BORRELLI (MB 8533) Case 1:13-cv-04826-CLP Document 70-2 Filed 09/09/16 Page 22 of 22 PageID #: 270 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x KEVIN SOSA, on behalf of himself and all others similarly-situated, Plaintiff, -against- CAZ-59 EXPRESS, INC.; SERGEY ZASLAVSKIY, an individual, Defendants. -----------------------------------------------------------------x DECLARATION OF CAITLIN A. McNAUGHTON, ESQ. IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT I, CAITLIN A. McNAUGHTON, an attorney admitted to practice in the Eastern District of New York, declare under the penalty of perjury that the foregoing is true and correct based upon my knowledge, information, and belief: 1. I am an associate at BORRELLI & ASSOCIATES, P.L.L.C., and I am counsel for the named-Plaintiff Kevin Sosa (“Sosa”), as well as opt-in Plaintiffs Michelangelo Franqui (“Franqui”), Jean Mateo (“Mateo”), Albert Maldonado (“Maldonado”), and Luis Miguel Santiago (“Santiago”), (all, collectively where appropriate, as “Plaintiffs”) in the above- captioned action. I submit this declaration in support of Plaintiffs’ motion for partial summary judgment. 2. Plaintiff Sosa commenced this action on August 23, 2013, alleging violations of the FLSA and the NYLL, on behalf of himself and all those similarly-situated, against CAZ-59 Express, Inc., and Sergey Zaslavskiy. 3. This action was conditionally certified on October 28, 2014. Case No.: 13-cv-04826 (CBA)(CLP) Case 1:13-cv-04826-CLP Document 70-3 Filed 09/09/16 Page 1 of 4 PageID #: 271 4. On November 14, 2013, Jean Mateo opted-into the case by filing his consent to join form on the docket. 5. On November 18, 2013, Albert Maldonado filed his consent form on the docket. 6. On April 25, 2014, Luis Santiago filed his opt-in form on the docket. 7. On April 23, 2015, Michelangelo Franqui filed his consent form on the docket. 8. On August 20, 2015, the court ordered that fact discovery be closed on October 20, 2015. That date came and went without Defendants noticing or otherwise seeking to take even a single deposition. 9. By order dated February 24, 2016, the court directed that any and all depositions still outstanding must be completed by April 29, 2016. 10. The court closed discovery on May 12, 2016. 11. Before that date, Defendants did not seek to take a single deposition. 12. Plaintiffs noticed and conducted the 30(b)(6) deposition of Defendants. 13. A true and correct copy of the deposition transcript of Defendants’ 30(b)(6) witness, Sergey Zaslavskiy, dated February 23, 2015, is attached hereto as Exhibit 1. 14. A true and correct copy of the Affidavit of Kevin Sosa in Support of Plaintiff’s Motion for Conditional Certification, is attached hereto as Exhibit 2. 15. A true and correct copy of the relevant pages of the Affidavit of Albert Maldonado in Support of Motion for Conditional Certification, is attached hereto as Exhibit 3. 16. A true and correct copy of the Declaration of Kevin Sosa in Support of Plaintiffs’ Motion for Partial Summary Judgment, dated September 8, 2016, is attached hereto as Exhibit 4. Case 1:13-cv-04826-CLP Document 70-3 Filed 09/09/16 Page 2 of 4 PageID #: 272 17. A true and correct copy of the Declaration of Albert Maldonado in Support of Plaintiffs’ Motion for Partial Summary Judgment, dated September 9, 2016, is attached hereto as Exhibit 5. 18. A true and correct copy of the Declaration of Louis Miguel Santiago in Support of Plaintiffs’ Motion for Partial Summary Judgment, dated September 9, 2016, is attached hereto as Exhibit 6. 19. A true and correct copy of the Declaration of Michelangelo Franqui in Support of Plaintiffs’ Motion for Partial Summary Judgment is attached hereto as Exhibit 7. 20. Due to logistical issues, Plaintiff Franqui was unable to execute the declaration before the motion’s filing deadline but I will supplement this filing with a signed copy of the declaration by next week. 21. A true and correct copy of New York State Department of State Entity Information for Caz-59 Express, Inc., is attached hereto as Exhibit 8. 22. A true and correct copy of Defendants’ Response to Plaintiff’s Interrogatories, dated February 19, 2015, is attached hereto as Exhibit 9. Case 1:13-cv-04826-CLP Document 70-3 Filed 09/09/16 Page 3 of 4 PageID #: 273 23. A true and correct copy of the Declaration of Jean Mateo in Support of Plaintiffs’ Motion for Partial Summary Judgment, dated September 9, 2016, is attached hereto as Exhibit 10. Dated: New York, New York September 9, 2016 Respectfully Submitted, BORRELLI & ASSOCIATES, P.L.L.C. Attorneys for Plaintiffs 1010 Northern Blvd. Suite 328 Great Neck, New York 11021 Tel. (516) 248-5550 Fax. (516) 248-6027 By: ________________________________________ CAITLIN A. McNAUGHTON, ESQ. (CM 6915) Case 1:13-cv-04826-CLP Document 70-3 Filed 09/09/16 Page 4 of 4 PageID #: 274 Exhibit 1 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 1 of 53 PageID #: 275 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 1] UNITED STATES DISTRICT COURT OF NEW YORK EASTERN DISTRICT OF NEW YORK ---------------------------------------------------X KEVIN SOSA, on behalf of himself and all others similarly situated, Plaintiff(s), -against- CAZ-59 EXPRESS, INC.: SERGEY ZASLAVSKIY, Defendant(s), ---------------------------------------------------X Docket No.: 13-CV-04826 (CBA) (CLP) 655 Third Avenue 1821 New York, New York February 23, 2015 10:11 a.m. - 12:02 p.m. EXAMINATION BEFORE TRIAL of SERGEY ZASLAVSKIY, The Defendant, taken on behalf of the Plaintiff Parties, and held before a Notary Public of the State of New York. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 2 of 53 PageID #: 276 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 2] 1 2 A P P E A R A N C E S: 3 ON BEHALF OF THE PLAINTIFF KEVIN SOSA, on behalf of 4 himself and all others similarly situated: 5 LAW OFFICES OF BORELLI & ASSOCIATES P.L.L.C 655 Third Avenue Suite 1821 6 New York, New York 10017 By: ANTHONY MALECKI, ESQ. 7 8 ON BEHALF OF THE DEFENDANT CAZ-59 EXPRESS, INC.: SERGEY ZASLAVSKIY: 9 LAW OFFICES OF GILL & KADOCHNIKOV, P.C. 125-10 Queens Boulevard Suite 223 10 Kew Gardens, New York 11415 By: ALEXANDER KADOCHNIKOV, ESQ. 11 12 ALSO PRESENT: 13 LANGUAGES R US Russian Interpreter 14 By: CHINARA SARYKOVA 15 16 17 18 19 20 21 22 23 24 25 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 3 of 53 PageID #: 277 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 3] 1 2 S T I P U L A T I O N S 3 4 IT IS HEREBY STIPULATED AND AGREED by and 5 between the attorneys for the respective parties herein 6 that the sealing, filing and certification of the 7 within deposition be waived; that such deposition may 8 be signed and sworn to before any officer authorized to 9 administer an oath with the same force and effect as if 10 signed and sworn to before a Judge of this court. 11 IT IS FURTHER STIPULATED AND AGREED that all 12 objections, except as to form, are reserved to the time 13 of trial. 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 4 of 53 PageID #: 278 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 4] 1 S. ZASLAVSKIY 2 C H I N A R A S A R Y K O V A, 3 The Interpreter, after having been 4 first duly sworn by a Notary Public 5 of the State of New York to interpret 6 questions from English to Russian and 7 answers from Russian to English was 8 examined and testified as follows: 9 S E R G E Y Z A S L A V S K I Y, 10 The Witness, after having been 11 first duly sworn by a Notary Public 12 of the State of New York, was 13 examined and testified as follows: 14 EXAMINATION BY: 15 MR. MALECKI: 16 Q. Please state your name for the record. 17 A. Sergey Zaslavskiy. 18 Q. Please state your address for the record. 19 A. 2930 West 5th Street, Apartment 19-M 20 Brooklyn, New York 11224. 21 Q. Good morning. My name is Anthony Malecki. 22 I represent the plaintiff, Kevin Sosa, in a lawsuit that 23 he has brought against the company CAZ-59 Express Inc. 24 and yourself. You are here pursuant to a Notice of 25 Deposition for the company CAZ-59 Express. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 5 of 53 PageID #: 279 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 5] 1 S. ZASLAVSKIY 2 We asked the company to designate an 3 individual who had knowledge of various items and 4 information about the company. 5 So, the first thing we are going to do is 6 mark as Plaintiff's 1 the Notice of Deposition. 7 (Whereupon Plaintiff's Exhibit 1 was 8 marked for identification.) 9 Q. In this notice it designates eight items 10 of information and right now I'm going to go through 11 each of those items and ask you if you are the person 12 most knowledgeable from CAZ-59 and ask if you are the 13 person most knowledgeable. 14 So, the first item is: "The policies and 15 procedures of CAZ regarding the plaintiff and any other 16 non-supervisory employee from August 23, 2007 to the 17 present." 18 I want to know if you are the person 19 most knowledgeable about that accident? 20 MR. KADOCHNIKOV: If I may interject 21 off-the-record. 22 (Whereupon, an off-the-record 23 conversation was held.) 24 MR. KADOCHNIKOV: Just for record, if 25 I feel the record is not translated correctly, Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 6 of 53 PageID #: 280 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 6] 1 S. ZASLAVSKIY 2 I will interject. 3 MR. MALECKI: I don't have a problem 4 with that. Just, you let me know if you have 5 any problems with what he is saying. 6 INTERPRETER: Okay. 7 Q. So, are you the person most knowledgeable 8 of that item at CAZ? 9 A. Yes. 10 Q. The second item on the next page is: "The 11 policies and procedures of CAZ regarding the payment of 12 overtime wages to Plaintiff and any other 13 non-supervisory employee from August 23, 2007 to the 14 present." 15 Are you the person most knowledgeable of 16 that item? 17 A. Yes. 18 Q. Item number 3 is: "The identity and 19 contact information of any and all employees of CAZ 20 from August 23, 2007 to the present." 21 Are you the person most knowledgeable of 22 that item? 23 A. Yes. 24 Q. Item number 4 is: "The polices and 25 procedures of CAZ regarding the work schedule of Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 7 of 53 PageID #: 281 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 7] 1 S. ZASLAVSKIY 2 plaintiff and any other non-supervisory employee from 3 August 23, 2007 to the present." 4 Are you the person most knowledgeable of 5 that item? 6 A. Yes. 7 Q. Number 5 is: "The policies and procedures 8 of CAZ regarding maintaining the records of the work 9 schedule and compensation of it's employees including 10 plaintiff from August 23 to the present." 11 Are you the person most knowledgeable of 12 that item? 13 A. Yes. 14 Q. Items 6 is: The job responsibilities of 15 Plaintiff and any other non-supervisory employee of CAZ 16 from January 23, 2007 to the present." 17 Are you most person most knowledgeable of 18 that item? 19 A. No. 20 Q. Item number 7 is: "The annual business 21 income of CAZ from August 23, 2007 to the present." 22 Are you the person most knowledgeable of 23 that item? 24 A. Yes. 25 Q. Item number 8 is: "Any and all attempts Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 8 of 53 PageID #: 282 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 8] 1 S. ZASLAVSKIY 2 by CAZ to comply with the Fair Labor Standards Act or 3 the New York Labor Law from August 23, 2007 to the 4 present." Are you the person most knowledgeable? 5 MR. KADOCHNIKOV: Objection to form, 6 you may answer. 7 A. Yes. 8 Q. Have you ever had your deposition taken 9 before? 10 A. No. 11 Q. Just to give you an introduction of why 12 we are here. 13 A deposition is a procedure whereby we 14 take your testimony under oath, under penalty of 15 perjury just as if you where testifying at a Trial or 16 Hearing. 17 The court reporter will be taking down 18 everything that is said in the room. Do your best to 19 wait to hear the translated question before answering. 20 And, as far as any answers to the questions we are 21 going to need a verbal answer. Nods of the head or 22 shakes of the head we are going to have to clarify as 23 to what you mean by that. 24 A. I got it. 25 Q. If you need to take a break, at any point Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 9 of 53 PageID #: 283 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 9] 1 S. ZASLAVSKIY 2 please let your attorney or us know and we are more 3 than happy to give you a break. 4 A. Okay. 5 Q. Is there any reason you are not able to 6 give your best testimony today? 7 A. No. 8 Q. Have you taken any medication or have any 9 type of medical condition that would inhibit your 10 ability to testify today? 11 A. No. 12 Q. What is your job title at CAZ-59? 13 A. Contractor of Sale. 14 Q. Are you the owner of CAZ-59? 15 A. Yes. 16 Q. Are any other owners besides you? 17 A. No. 18 Q. What does CAZ-59 do? 19 A. I have the contract with FedEx so I ship 20 packages. 21 Q. Does the company have a certain number of 22 FedEx routes that it manages? 23 A. No, it differs from day-to-day. 24 Q. What type of work does CAZ do for FedEx? 25 A. Shipping of packages. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 10 of 53 PageID #: 284 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 10] 1 S. ZASLAVSKIY 2 Q. Does the company operate the delivery 3 trucks? 4 A. I don't remember. 5 MR. KADOCHNIKOV: Can you repeat the 6 question? 7 (Whereupon testimony was read from the 8 record.) 9 MR. KADOCHNIKOV: Sorry. That is not 10 the correct translation. The question was 11 operate the delivery trucks the translation was 12 track the delivery. 13 I don't think this is going to work 14 if the translation is not correct. 15 INTERPRETER: What do you think is 16 the translation? 17 MR. KADOCHNIKOV: Of operate the truck? 18 (Russian Speaking.) 19 INTERPRETER: Did you mean the truck 20 as a car? 21 MR. MALECKI: Yes, delivery truck. 22 INTERPRETER: (Russian Translation.) 23 A. The companies trucks. 24 Q. Okay. How many trucks does the company 25 own? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 11 of 53 PageID #: 285 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 11] 1 S. ZASLAVSKIY 2 A. Three. 3 Q. How many current employees does the 4 company have? 5 A. Six. 6 Q. What are the jobs that those six 7 employees do? 8 A. The deliveries. Loading and delivery. 9 Q. Does the company employee any drivers of 10 it's vehicle? 11 A. Yes, we have a truck. 12 Q. Of the six employees who currently works 13 for CAZ? How many of them are drivers? 14 A. Two and one of them works as a 15 replacement. 16 Q. What are the jobs of the other three 17 employees? 18 A. The loading, delivery of packages. 19 Q. Does the three individuals have a 20 specific job title? 21 A. No, just assistance. 22 Q. Does the company have more or less 23 employees than it did a year ago? 24 A. A year ago, I don't remember. Maybe the 25 same amount, maybe more. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 12 of 53 PageID #: 286 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 12] 1 S. ZASLAVSKIY 2 Q. Has the company ever had more than three 3 trucks? 4 A. No. 5 Q. How long has CAZ been in operation? 6 A. Four years. 7 Q. Did it start some time in 2010? 8 A. Companies were opened in 2010, but they 9 started operating somewhere in 2011. 10 Q. When the company started operating how 11 many trucks did it have? 12 A. In my company? 13 Q. In CAZ-59? 14 A. Two. 15 Q. When did the company acquire the third 16 truck? 17 A. Two years ago. Approximately two years 18 ago. 19 Q. When CAZ-59 started operating how many 20 employees did it have? 21 A. I think four. Including me. 22 Q. Who at CAZ is responsible for the polices 23 and procedures regarding compensating new employees? 24 A. Myself. 25 Q. Besides yourself is there anybody else Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 13 of 53 PageID #: 287 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 13] 1 S. ZASLAVSKIY 2 who is responsible for the compensation of employees? 3 A. No. 4 Q. Has the company employed anybody in a 5 management position? 6 A. No. 7 Q. Does CAZ-59 have policies with regard to 8 the payment of overtime? 9 A. Apparently, yes. 10 Q. What are CAZ policies with regard to the 11 payment of overtime? 12 A. The regular time is paid under the 13 minimum wage and the overtime is paid one and a half 14 times. 15 Q. Are the employees paid on a weekly or 16 bi-weekly schedule? 17 A. Weekly. 18 Q. Are the employees paid in cash or check? 19 A. Only check. 20 Q. Has CAZ ever paid any of it's employees 21 more than the minimum wage? 22 A. Depending on the amount of hours. 23 Q. Are all of the employees at CAZ paid 24 based on the number of hours they work? 25 A. We pay weekly. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 14 of 53 PageID #: 288 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 14] 1 S. ZASLAVSKIY 2 Q. Are any of the employees at CAZ receiving 3 a salary wage; meaning they make the same amount 4 regardless of the hours they work? 5 A. If it didn't exceed to determine the 6 amount of hours they would be paid with the same 7 amount. 8 Q. Who is responsible for setting the 9 schedule, the work schedule for the employees at CAZ? 10 A. Would you rephrase your question what do 11 you many by "schedule"? 12 Q. Do employees at CAZ have a work schedule 13 that they work each week? 14 A. No, one can come at a certain time 15 another can come later. 16 Q. Who is responsible for telling the 17 employees when to come to work? 18 A. We don't have a determined schedule. 19 Q. How does an employee know when they are 20 suppose to come to work? 21 A. The terminal opens at the same time and 22 they know when I'm at work. So, they come depending on 23 how they can get there. So, someone can come at 7 24 another can come at 8. 25 Q. What time does the terminal open? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 15 of 53 PageID #: 289 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 15] 1 S. ZASLAVSKIY 2 A. Now, it's 6:30 before it was later. 3 Q. When did it change to 6:30? 4 A. Approximately, one and a half year ago. 5 Q. What time was it previously? 6 A. 7. 7 Q. Of the six employees that currently work 8 at CAZ how many show up at 6:30 when the company opens? 9 A. As of now? 10 Q. Yes. 11 A. One. 12 Q. What time do the other employees show up? 13 A. 7, 7:30, 8. 14 Q. Is there a time that it's the latest time 15 that an employee was required to show up? 16 A. No. 17 Q. What would happen if an employee showed 18 up at noon? 19 A. They would not work since truck leaves. 20 Q. Is there is a specific time of day that 21 the truck leaves? 22 A. No, it's around 9:30, 10. 23 Q. So, in order to perform their work the 24 employees need to show up before 9:30 and 10? 25 A. Before. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 16 of 53 PageID #: 290 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 16] 1 S. ZASLAVSKIY 2 Q. Is there a specific time of day when the 3 workday ends? 4 A. No, it depends on the amount of packages 5 which are in the truck. 6 Q. Is there a specific time of the day that 7 the truck needs to return to the terminal by? 8 A. No. 9 Q. Are the employees allowed to return the 10 trucks after 11 p.m.? 11 A. I don't know, I didn't have those 12 occasions. 13 Q. What time of the day do the trucks 14 typically return to the terminals? 15 A. 4, 4:30. 16 Q. During the time that CAZ has been in 17 operation has the return time been later than 4:30? 18 A. It happens. 19 Q. What are the reasons that a truck would 20 return later than 4:30? 21 A. It depends on the amount and traffic. 22 Q. When a truck returns to the terminal is 23 there anything additional that the employees have to 24 do? 25 A. No, because the only person that comes Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 17 of 53 PageID #: 291 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 17] 1 S. ZASLAVSKIY 2 back with the truck is the driver. 3 Q. How many employees are assigned to work 4 on each truck? 5 A. We don't have this occasions. 6 Q. Is there ever a time when a truck would 7 go out the delivery with only one employee? 8 A. The driver who needs to return the truck 9 back to the terminal. 10 Q. But does CAZ ever assign only the driver 11 to deliver the packages on any given day? 12 A. No, he has an assistance but, he comes 13 back to the terminal alone. 14 Q. Does CAZ always have at least a driver 15 and a driver's assistant leave the terminal in the 16 morning to deliver the packages? 17 A. Yes. 18 Q. Are there ever more than one driver 19 assistant assigned to a truck? 20 A. Not in my company, no. 21 Q. As far as loading of the trucks is the 22 driver responsible for loading the trucks? 23 A. Yes, the driver loads and assistance help 24 him. 25 Q. What other job responsibilities do the Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 18 of 53 PageID #: 292 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 18] 1 S. ZASLAVSKIY 2 assistant's have? 3 A. The same as the driver, to load the 4 trucks and driver the package. 5 Q. So, the only difference between a driver 6 and the driver's assistance, is that the driver drives 7 the truck? 8 A. Yes. 9 Q. Are there any specific requirements that 10 CAZ has of it's employees in order to become a driver? 11 A. He needs to graduate from the school, the 12 FedEx school. 13 Q. So, all of the drivers attend a school at 14 FedEx? 15 A. Yes, we are not permitted to hire them as 16 drivers if they don't graduate from the school. 17 Q. Does FedEx have any specific requirements 18 regarding the driver's assistance? 19 A. Not determine retirements, just to come 20 on top and driver the package. 21 Q. So, there isn't a school for the 22 drivers's assistant as well? 23 A. No. 24 Q. Does CAZ give out wage statements to it's 25 employees? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 19 of 53 PageID #: 293 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 19] 1 S. ZASLAVSKIY 2 A. When they are hired. 3 Q. What does CAZ give to it's employees when 4 they are hired? 5 A. They fill out the specific forms and the 6 form from the labor department and they know there 7 minimum wages, they fill out the immigration forms. 8 MR. KADOCHNIKOV: Can we go off the 9 record? 10 (Whereupon an off-he-record conversation 11 was held.) 12 Q. When an employee is hired do they receive 13 a document that informs them there hourly wage? 14 A. They don't receive any form. They know 15 how much they are paid. 16 Q. How do they how much they are paid? 17 A. I tell them. I know the minimum wage. 18 How much is paid for overtime, I report it home. 19 Q. When an employee receives it's paycheck, 20 do they get a document stating how many hours they 21 worked each week? 22 A. Yes. 23 Q. When an employee gets a payment do they 24 get a document informing them of what their hourly wage 25 is? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 20 of 53 PageID #: 294 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 20] 1 S. ZASLAVSKIY 2 A. Yes. 3 Q. The employees, do they receive a 4 statement informing them of the number of hours they 5 worked every week? 6 A. They received it every week the amount of 7 hours they worked with the paycheck. 8 Q. How does CAZ keep records of the hours 9 the employees worked? 10 A. They fill out the form when they get to 11 work and when they leave the work. 12 Q. Who keeps those forms? 13 A. I have it. I keep them. 14 Q. How long do you keep those forms for? 15 A. I can't tell you exactly. 16 Q. Do you have the forms filled out by the 17 employee back from when the employee started back in 18 2011? 19 A. No, probably later. 20 Q. Does CAZ have any computer devices or 21 other electronic equipment that clocks an employee in 22 or out? 23 A. No. 24 Q. Does FedEx have any computerized 25 equipment that would show how many hours an employee Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 21 of 53 PageID #: 295 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 21] 1 S. ZASLAVSKIY 2 worked? 3 A. FedEx can track it by scanner. 4 Q. Does an employee use the scanner to 5 clock-in at work? 6 MR. KADOCHNIKOV: Not really the 7 right translation for clock-in. 8 INTERPRETER: (Russian speaking.) 9 MR. KADOCHNIKOV: Clock-in is to 10 record the beginning of time when the person 11 arrives to work. You are not translating that. 12 INTERPRETER: I said "when he got to 13 work." 14 MR. MALECKI: How can I change the 15 question. Let's do it this way. 16 Q. When an employee arrives at work does he 17 use the FedEx scanner to provide that time? 18 A. When he scans the packages, he first 19 scans his I.D. 20 Q. Who maintains the records of the FedEx 21 scanner? 22 A. FedEx. 23 Q. Do the employees of CAZ have a set number 24 of hours they are suppose to work each week? 25 A. No. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 22 of 53 PageID #: 296 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 22] 1 S. ZASLAVSKIY 2 Q. Does CAZ allow it's employees to work 3 overtime hours, meaning more than forty per week? 4 A. Yes. 5 Q. Does CAZ have any policy with regard to 6 the maximum amount of hours an employee can work per 7 week? 8 A. We don't have determined. Usually, it's 9 around for the hours maybe it's slightly more. Like 10 it's Christmas, they can work one more hour. 11 Q. Is there a typical time of year that CAZ 12 is more busy than other times of year? 13 A. Peak season. December. 14 Q. Approximately what time is peak season? 15 A. December. 16 Q. How many hours per week do the employees 17 typically work just before Christmas? 18 A. Maybe forty hours, maybe less. 19 Q. Does CAZ keep copies of the documents 20 given to an employee at the time they received there 21 check each week? 22 A. Yes. 23 Q. Where are those records kept? 24 A. I keep them. 25 Q. Are they kept on a computer system Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 23 of 53 PageID #: 297 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 23] 1 S. ZASLAVSKIY 2 somewhere? 3 A. No. 4 Q. So, where physically are they kept? 5 A. In my apartment, in the office. 6 Q. In the address that you gave us at the 7 beginning of the deposition? 8 A. Yes, a company registered by this 9 address. 10 Q. Where is the terminal located? 11 A. LaGuardia Airport. 12 Q. Do you know the address? 13 A. It's 83-15 24th Avenue East Elmhurst zip 14 code I don't remember exactly, 11370. 15 Q. Has the terminal always been at this 16 location? 17 A. The last three and a half years. 18 Q. Are any records regarding the employees 19 kept at this terminal facility? 20 A. FedEx has all the records. 21 Q. So, the East Elmhurst facility is a FedEx 22 facility? 23 A. Yes. 24 Q. Do you know approximately how much in 25 profits the company made in 2014? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 24 of 53 PageID #: 298 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 24] 1 S. ZASLAVSKIY 2 A. I didn't receive it yet. The corporation 3 is not closed yet. 4 Q. Do you know approximately how much income 5 the company made in 2014? 6 A. Around 400,000. 7 Q. Do you know how much income the company 8 made in 2013? 9 A. 300,000, approximately. 10 Q. Do you know how much the company made in 11 income in 2012? 12 A. I don't remember. 13 Q. Was Kevin Sosa ever an employee of 14 CAZ-59? 15 A. Yes. 16 Q. During what time period did Sosa work for 17 CAZ? 18 A. I remember somewhere from August 2012 up 19 to April 2013. Or August 2013 up to April 2014, I don't 20 remember the year. 21 Q. Who hired Kevin Sosa? 22 A. I don't know how he got hired to the 23 terminal before he used to work for another company. 24 Q. What other company did Sosa work for? 25 A. I don't know the name. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 25 of 53 PageID #: 299 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 25] 1 S. ZASLAVSKIY 2 Q. Is it another company owned by you? 3 A. No, I own one company. 4 Q. Was it another company that he did 5 deliveries for FedEx? 6 A. Yes. 7 Q. When Mr. Kevin Sosa was hired did anyone 8 discuss with him his rate of compensation? 9 A. Yes, he knew how much he would be paid 10 weekly. 11 Q. What was Mr. Sosa's rate of compensation? 12 A. It differed, depending on the amount of 13 days he worked. 14 Q. Was Mr. Sosa paid an hourly rate or daily 15 rate? 16 A. Daily. 17 Q. What was Mr. Sosa's daily rate? 18 A. Around 110, 120. 19 Q. Would Mr. Sosa, when he worked for CAZ, 20 receive the same daily rate regardless of the number of 21 hours he worked? 22 A. He didn't work more hours than were 23 determined. 24 Q. Was there a set number of hours that 25 Mr. Sosa had to work each day? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 26 of 53 PageID #: 300 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 26] 1 S. ZASLAVSKIY 2 A. No. 3 Q. Was there a set number of hours that 4 Mr. Sosa had to work each week? 5 A. No. 6 Q. Did Mr. Sosa receive his daily rate of 7 pay regardless of whether he worked five hours on a 8 given day or eight hours? 9 A. Yes. 10 Q. How many days did Mr. Sosa work per week? 11 A. Five. 12 Q. Was there ever a time that Mr. Sosa ever 13 worked more than five days a week? 14 A. In December. 15 Q. In December, how many days did Mr. Sosa 16 work per week? 17 A. Six. 18 Q. In the time period other than December 19 how many hours per day did Mr. Sosa typically work? 20 A. Five days. 21 Q. How many hours? 22 A. Different. I can't tell you exactly. 23 Q. Was Mr. Sosa paid in check each week? 24 A. Only by check. 25 Q. Did Mr. Sosa, when he was paid by check, Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 27 of 53 PageID #: 301 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 27] 1 S. ZASLAVSKIY 2 receive a document saying his rate of pay and how many 3 hours he worked each week? 4 A. He received payroll weekly. 5 Q. When you say "he received payroll", what 6 do you mean? 7 A. The amount he received weekly minus the 8 deductions for tax. 9 Q. Does the company utilize a payroll 10 company to write issue it's checks? 11 A. Would you rephrase the question? 12 Q. Who writes out the employees paychecks 13 each week? 14 A. Myself. 15 Q. How do you determine the amount to take 16 out in taxes? 17 A. The amount of days and hours is 18 determined by my accountant and he gives me the forms 19 that is minus all the tax deductions. 20 Q. Who is your accountant? 21 A. Do you need her name? 22 Q. Yes. 23 A. Rimma, I don't remember the last name. 24 Q. Her first name is Rimma? 25 A. Rimma. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 28 of 53 PageID #: 302 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 28] 1 S. ZASLAVSKIY 2 Q. Do you have a phone number for her? 3 A. Yes, I have it in my jacket. 4 Q. If we leave a blank space in the 5 transcript would you be able to give us her last name 6 and phone number? 7 A. Yes. 8 _______________________________________________ 9 _______________________________________________ 10 (Space provided for Rimma's last name and phone 11 number.) 12 Q. Thanks. 13 When Mr. Sosa received his paycheck did 14 he receive any document that said the amount of hours 15 that he worked per week? 16 A. No. 17 Q. Does the company have any records that 18 would show how the number of hours Mr. Sosa worked on 19 any given week? 20 A. FedEx has the times. 21 Q. But CAZ doesn't have any records, the 22 number of hours Mr. Sosa worked each week? 23 A. I'm not sure. I have to check it out. 24 Q. When Mr. Sosa worked at CAZ was he 25 required to sign-in on a piece of paper? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 29 of 53 PageID #: 303 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 29] 1 S. ZASLAVSKIY 2 A. Which paper do you mean? 3 Q. When Mr. Sosa got to work on any given 4 day, did he have to sign anything or keep a record of 5 when he got to work? 6 A. No, he just opened the scan and scanned 7 his I.D. 8 Q. Was there any document that Mr. Sosa had 9 to sign each day when he left work? 10 A. No, it was the same system. He scanned 11 his I.D. in the time he left work. 12 Q. Do each of the employees of CAZ have a 13 FedEx scanner? 14 A. Yes, they scan it everyday. 15 Q. Who keeps the scanner when the employees 16 are not at work? 17 A. They are at FedEx. They are located in 18 FedEx. 19 Q. Why did Mr. Sosa stop working at CAZ? 20 A. He was fired by FedEx. 21 Q. Who specifically at FedEx fired Mr. Sosa? 22 A. Apparently, the Senior Manager. 23 Q. Do you know who that person is? 24 A. Yes, of course. 25 Q. What is his name? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 30 of 53 PageID #: 304 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 30] 1 S. ZASLAVSKIY 2 A. First name, Hugh. The last name Williams. 3 Q. Is there another individual named Albert 4 Maldonado, has Mr. Maldonado ever worked for CAZ? 5 A. Yes. 6 Q. When did Mr. Maldonado work for CAZ? 7 A. January 2012 up to July or August 2013. 8 Q. Was Mr. Maldonado a driver for CAZ? 9 A. No, the assistant. 10 Q. Was Mr. Sosa ever a driver at CAZ? 11 A. No, never. 12 Q. So Mr. Sosa was also an assistant? 13 A. The assistant. 14 Q. Did Mr. Maldonado also have a daily rate 15 of pay? 16 A. Yes. 17 Q. What was his daily rate of pay? 18 A. 100, 110, 1115, that was the range. 19 Q. How many days did Mr. Maldonado typically 20 work? 21 A. If he came to work, five days. 22 Q. Did Mr. Maldonado ever work more than 23 five days a week? 24 A. In December. 25 Q. How many days did he work in December? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 31 of 53 PageID #: 305 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 31] 1 S. ZASLAVSKIY 2 A. Six. 3 Q. For Mr. Maldonado's daily rate did he 4 receive the same amount regardless of whether he worked 5 five hours or six hours a day? 6 A. Yes, he didn't work overtime. 7 Q. Was he paid by check? 8 A. Only by check. 9 Q. Does CAZ have any records with regard to 10 the number of hours that Mr. Maldonado worked? 11 A. The same, FedEx gets the daily statement. 12 Q. A third individual Juan Mateo, has that 13 individual ever worked for CAZ? 14 A. Yes. 15 Q. When did he work for CAZ? 16 A. I don't remember exactly it was 2010, 17 2011. 18 Q. Do you recall how long he worked for CAZ? 19 A. Around a year maybe less. 20 Q. Did Mr. Mateo have a daily rate as well? 21 A. Yes. 22 Q. Do you recall what his daily rate of pay 23 was? 24 A. I don't remember exactly around 100, 110. 25 Q. Would Mr. Mateo receive this rate Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 32 of 53 PageID #: 306 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 32] 1 S. ZASLAVSKIY 2 regardless of whether he worked five hours or six hours 3 each day? 4 A. Yes. 5 Q. How many days per week did Mr. Mateo 6 typically work? 7 A. Five. 8 Q. Was there ever a time when he worked for 9 more than five days a week? 10 A. December. 11 Q. How many days would he typically work in 12 December? 13 A. Six. 14 Q. Is there a day during the week that CAZ 15 does not do deliveries For FedEx? 16 A. Sunday and Monday the terminal is closed. 17 We are off. 18 Q. The terminal is always closed on Monday? 19 A. Except for December. 20 Q. Is this terminal always closed on Sunday? 21 A. Always. 22 Q. What about an individual named Derick, 23 D-E-R-I-C-K. Last name, Merreld, M-E-R-R-E-L-D, has 24 that individual ever worked for CAZ? 25 A. I don't know this person. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 33 of 53 PageID #: 307 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 33] 1 S. ZASLAVSKIY 2 Q. What about Ceiry, C-E-I-R-Y, Polanco, 3 P-O-L-A-N-C-O, has that individual ever worked for CAZ? 4 A. I don't know this person. 5 Q. Mr. Mateo was he an assistant or a 6 driver? 7 A. The assistant. 8 Q. Does the company have any records with 9 regard to the number of hours Mr. Mateo worked? 10 A. The same, FedEx. 11 Q. I'm going to mark this document as 12 Exhibit 2. 13 (Whereupon Plaintiff's Exhibit 2 was 14 marked for identification.) 15 Q. Exhibit 2, is a one page document that is 16 handwritten with a number of different names on it. 17 Would you take a look at this document 18 and tell me have you ever seen it before? 19 A. Yes. 20 Q. Who prepared this document? 21 A. I took done the people that worked in 22 certain years. 23 Q. So, you prepared this document? 24 A. Yes. 25 Q. Does this document represent the names of Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 34 of 53 PageID #: 308 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 34] 1 S. ZASLAVSKIY 2 the employees that worked at CAZ during each of the 3 years? 4 A. Yes. 5 Q. Does the document list all of the 6 employees whoever worked at CAZ? 7 A. Yes, people who worked. 8 Q. Are there any people who worked for CAZ 9 between 2009 and 2010 who are not listed in this 10 document? 11 A. No. 12 Q. How did you determine the names of the 13 employees to put on this list? 14 A. I have the form that was prepared by any 15 accountant and I was asked to prepare a list of 16 employees, I did that. 17 Q. So CAZ has all the W-2 forms of all of 18 it's employees? 19 A. Yes. 20 Q. On this document, at least for the years 21 2012, 2013, and 2014, seems there are certain 22 individuals identified as drivers, are these all of the 23 individuals during those years that worked as drivers 24 at CAZ? 25 A. Yes. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 35 of 53 PageID #: 309 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 35] 1 S. ZASLAVSKIY 2 Q. In 2009, 2010, 2011, were any of those 3 people listed on this document driver's for CAZ? 4 A. No, for this year only one truck was 5 operating and I was the driver. 6 Q. Why does 2013 have more employees than 7 the other years? 8 A. There was one more route in the company. 9 Q. How many routes were in the company prior 10 to 2013? 11 A. One. 12 Q. How many routes did CAZ have in 2013? 13 A. Three. 14 Q. How many routes does the company have 15 now? 16 A. Two. 17 Q. As for the employees on this list in 18 Exhibit 2 were all of these employees paid a daily rate 19 of pay? 20 A. Yes. 21 Q. Were all of these employees paid weekly? 22 A. Yes. 23 Q. Were all of these employees paid by 24 check? 25 A. Only by check. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 36 of 53 PageID #: 310 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 36] 1 S. ZASLAVSKIY 2 Q. Going onto the next document we will mark 3 as Exhibit 3. 4 (Whereupon Plaintiff Exhibit 3 was marked 5 for identification.) 6 Q. Exhibit 3, is a four page document that 7 also has names of various individuals. 8 Would you take a look at this and tell me 9 have you ever seen this before? 10 A. No. 11 Q. If you look at column B, it has a number 12 that is called "Contract I.D.", do you know if CAZ has 13 a Contract I.D. from FedEx? 14 A. This is a contract from FedEx. 15 Q. What is a Contract I.D.? 16 A. The number. 17 Q. Does CAZ have a contract with FedEx? 18 A. We have the contract with FedEx. 19 Q. Is the contract given a specific 20 identification number? 21 A. This is the name of the contract. The 22 number of the contract. 23 Q. Have you seen this number C7091546 24 before? 25 A. If it's a number of my contract, yes. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 37 of 53 PageID #: 311 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 37] 1 S. ZASLAVSKIY 2 But, I don't remember exactly. 3 Q. In column E it has a number that is 4 labeled FedEx I.D., do you know what that FedEx I.D. 5 signifies? 6 A. It's just an I.D. number. The person who 7 works for FedEx is registered by this number. 8 Q. So, each employee of CAZ has a different 9 FedEx I.D. number? 10 A. Any FedEx employee has it. 11 Q. Going back to the Contract I.D., do you 12 know if the contract that CAZ has with FedEx whether it 13 has a different identification number than another 14 company's contract with FedEx? 15 A. Apparently everyone has it's own number. 16 Q. Do you know that every company has a 17 different number? 18 A. Apparently, yes everyone that is 19 included has a number. 20 (Whereupon Plaintiff's Exhibits 4 and 5 21 were marked for identification.) 22 Q. Exhibit 4 is a one page document from 23 2013 that has a name on it that says Miscellaneous 24 Income, can you tell me if you have ever seen this 25 document before? Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 38 of 53 PageID #: 312 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 38] 1 S. ZASLAVSKIY 2 A. What does it many miscellaneous income? 3 Q. Well, my question to you was have you 4 ever seen this document before? 5 A. Yes, at the end of the year FedEx sends 6 us this. 7 Q. Do you know why FedEx sends you this 8 form? 9 A. Apparently it contains the total amount 10 which I have to pay tax. 11 Q. On this document there is a number in the 12 box labeled 7, the numbers $412,486.73, do you know 13 what that number represents? 14 A. This is the companies income. 15 Q. Is this the income before taxes or after 16 taxes? 17 A. Before. 18 Q. The other document that we marked as 19 Exhibit 5, it looks like it's from 2014 and also has a 20 number in box 7, can you tell me if you have ever seen 21 this document before? 22 A. Yes, this is the income tax for 2014. 23 Q. Just to clarify the number in box 7, is 24 that the income for the company in the year 2014? 25 A. Yes. Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 39 of 53 PageID #: 313 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 39] 1 S. ZASLAVSKIY 2 Q. Did you receive forms similar to this 3 from FedEx in 2011 and 2012? 4 A. Yes, they send it every year. 5 (Whereupon Plaintiff's Exhibit 6 was 6 marked for identification.) 7 Q. Exhibit 6 is a two page document. Has a 8 year on the top says "2011". It's a document entitled 9 United States income for a S-Corporation? 10 A. Apparently, yes. 11 Q. What is this document? 12 A. The form that is prepared by an 13 accountant. 14 Q. Is this the company's federal tax returns 15 for 2011? 16 A. What do you mean by federal income? What 17 do you mean by "federal tax returns"? 18 Q. Does CAZ file tax returns with the IRS 19 each year? 20 A. I think no. It's better to ask the 21 accountant. 22 Q. Do you have any knowledge as to whether 23 the company files taxes every year? 24 MR. KADOCHNIKOV: It's not the right 25 translation you are using. I'll switch to Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 40 of 53 PageID #: 314 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 40] 1 S. ZASLAVSKIY 2 Russian, if you don't mind. 3 MR. MALECKI: Okay. 4 INTERPRETER: This tax return does it 5 imply that the company gets back the tax money? 6 MR. MALECKI: Off-the-record. 7 Q. In order to clarify a translation issue 8 I'm going to rephrase my question. 9 Do you know if the company files 10 documents with the federal government declaring how 11 much income it had each year? 12 A. It's better to speak with my accountant. 13 Q. So, you don't know one way or the other? 14 A. I can't tell you. 15 INTERPRETER: This is the name 16 and the phone number. 17 Q. During our brief break you have gotten a 18 name of the accountant and the phone number. I have a 19 Rimma, R-I-M-M-A. Last name Rubinstein, 20 R-U-B-I-N-S-T-E-I-N. And, a phone number (718) 332 - 21 0190, is this the name and the phone number of the 22 company's accountant? 23 A. Yes. 24 Q. Is there anyone other than you who works 25 for CAZ responsible for making decisions on behalf of Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 41 of 53 PageID #: 315 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 41] 1 S. ZASLAVSKIY 2 the company? 3 A. No. 4 Q. Besides the case that we are here for now 5 has the company ever gotten any other type of lawsuits 6 with regard to the payments of it's employees? 7 A. Never. 8 Q. Has the company ever tried to seek any 9 advise regarding the payment of it's employees? 10 A. Never. 11 Q. Is the company aware of any laws that 12 exist with respect to the payments of it's employees? 13 A. Yes. 14 Q. What is your understanding as to any law 15 with respect to payment of your employees? 16 A. To pay the amount of hours and days that 17 the employee earned. 18 Q. Are you aware of any laws that require 19 the payment of overtime wages? 20 A. Yes. 21 Q. What is your understanding of what the 22 law says about paying overtime wages? 23 A. So the overtime is estimated one and a 24 half times more than the regular time. 25 Q. How many hours per week does an employee Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 42 of 53 PageID #: 316 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 42] 1 S. ZASLAVSKIY 2 have to work in order to get overtime? 3 A. Up to forty hours. 4 Q. That's all the questions I have. Thank 5 you very much. 6 (Whereupon, at 12:02 p.m., the Examination of 7 this Witness was concluded.) 8 9 10 _________________________ 11 SERGEY ZASLAVSKIY 12 13 14 Subscribed and sworn to before me 15 This day of 2015. 16 17 18 __________________ 19 NOTARY PUBLIC 20 21 22 23 24 25 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 43 of 53 PageID #: 317 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 43] 1 I N D E X 2 3 EXAMINATION BY PAGE 4 MR. MALECKI 4 5 6 7 8 E X H I B I T S 9 PLAINTIFF PAGE 10 11 1 Notice of Deposition 5 12 13 2 Handwritten List 32 14 15 3 List of name 35 16 17 4 2013 Miscellaneous Income 37 18 19 5 2014 Income Tax Returns 37 20 21 6 2011 U.S. Income for S-Corp. 38 22 23 24 25 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 44 of 53 PageID #: 318 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 44] 1 E R R A T A 2 UNITED STATES DISTRICT COURT OF NEW YORK ) 3 Pg___of___Pgs 4 ss: 5 EASTERN DISTRICT OF NEW YORK) 6 I wish to make the following changes, for the 7 following reasons: 8 PAGE LINE 9 ____ ____ CHANGE:__________________________________ 10 REASON:__________________________________ 11 ____ ____ CHANGE:__________________________________ 12 REASON:__________________________________ 13 ____ ____ CHANGE:__________________________________ 14 REASON:__________________________________ 15 ____ ____ CHANGE:__________________________________ 16 REASON:__________________________________ 17 ____ ____ CHANGE:__________________________________ 18 REASON:__________________________________ 19 ____ ____ CHANGE:__________________________________ 20 REASON:__________________________________ 21 ____ ____ CHANGE:__________________________________ 22 REASON:__________________________________ 23 ____ ____ CHANGE:__________________________________ 24 REASON:__________________________________ 25 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 45 of 53 PageID #: 319 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 45] 1 2 C E R T I F I C A T I O N 3 4 I, MELISSA ALVAREZ, a Notary Public, do 5 hereby certify: 6 That the foregoing witness, SERGEY 7 ZASLAVSKIY, was duly sworn by me on the date indicated, 8 and that the foregoing is a true record of the 9 testimony given by said witness. 10 I further certify that I am not related to any 11 of the parties to this action by blood or marriage, and 12 that I am in no way interested in the outcome of this 13 matter. 14 In WITNESS WHEREOF, I have hereunto set my 15 hand this 23rd day of February, 2015. 16 17 18 19 20 ______________________________ 21 MELISSA ALVAREZ 22 23 24 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 46 of 53 PageID #: 320 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 1] A ability 9:10 able 9:5 28:5 accident 5:19 accountant 27:18,20 34:15 39:13,21 40:12,18,22 acquire 12:15 Act 8:2 action 45:11 additional 16:23 address 4:18 23:6,9,12 administer 3:9 advise 41:9 ago 11:23,24 12:17,18 15:4 AGREED 3:4,11 Airport 23:11 Albert 30:3 ALEXANDER 2:10 allow 22:2 allowed 16:9 ALVAREZ 45:4,21 amount 11:25 13:22 14:3,6,7 16:4,21 20:6 22:6 25:12 27:7,15,17 28:14 31:4 38:9 41:16 annual 7:20 answer 8:6,21 answering 8:19 answers 4:7 8:20 Anthony 2:6 4:21 anybody 12:25 13:4 apartment 4:19 23:5 Apparently 13:9 29:22 37:15 37:18 38:9 39:10 approximately 12:17 15:4 22:14 23:24 24:4,9 April 24:19,19 arrives 21:11,16 asked 5:2 34:15 assign 17:10 assigned 17:3,19 assistance 11:21 17:12,23 18:6,18 assistant 17:15,19 18:22 30:9 30:12,13 33:5,7 assistant's 18:2 ASSOCIATES 2:5 attempts 7:25 attend 18:13 attorney 9:2 attorneys 3:5 August 5:16 6:13,20 7:3,10 7:21 8:3 24:18,19 30:7 authorized 3:8 Avenue 1:15 2:5 23:13 aware 41:11,18 a.m 1:17 B B 36:11 43:8 back 17:2,9,13 20:17,17 37:11 40:5 based 13:24 beginning 21:10 23:7 behalf 1:3,20 2:3,3,8 40:25 best 8:18 9:6 better 39:20 40:12 bi-weekly 13:16 blank 28:4 blood 45:11 BORELLI 2:5 Boulevard 2:9 box 38:12,20,23 break 8:25 9:3 40:17 brief 40:17 Brooklyn 4:20 brought 4:23 business 7:20 busy 22:12 C C 2:2 4:2 45:2,2 called 36:12 car 10:20 case 41:4 cash 13:18 CAZ 5:15 6:8,11,19,25 7:8 7:15,21 8:2 9:24 11:13 12:5 12:22 13:10,20,23 14:2,9,12 15:8 16:16 17:10,14 18:10 18:24 19:3 20:8,20 21:23 22:2,5,11,19 24:17 25:19 28:21,24 29:12,19 30:4,6,8 30:10 31:9,13,15,18 32:14 32:24 33:3 34:2,6,8,17,24 35:3,12 36:12,17 37:8,12 39:18 40:25 CAZ-59 1:8 2:8 4:23,25 5:12 9:12,14,18 12:13,19 13:7 24:14 CBA 1:13 Ceiry 33:2 certain 9:21 14:14 33:22 34:21 certification 3:6 certify 45:5,10 change 15:3 21:14 44:9,11,13 44:15,17,19,21,23 changes 44:6 check 13:18,19 22:21 26:23 26:24,25 28:23 31:7,8 35:24,25 checks 27:10 CHINARA 2:14 Christmas 22:10,17 clarify 8:22 38:23 40:7 clocks 20:21 clock-in 21:5,7,9 closed 24:3 32:16,18,20 CLP 1:13 code 23:14 column 36:11 37:3 come 14:14,15,17,20,22,23 14:24 18:19 comes 16:25 17:12 companies 10:23 12:8 38:14 company 4:23,25 5:2,4 9:21 10:2,24 11:4,9,22 12:2,10 12:12,15 13:4 15:8 17:20 23:8,25 24:5,7,10,23,24 25:2,3,4 27:9,10 28:17 33:8 35:8,9,14 37:16 38:24 39:23 40:5,9 41:2,5,8,11 company's 37:14 39:14 40:22 compensating 12:23 compensation 7:9 13:2 25:8 25:11 comply 8:2 computer 20:20 22:25 computerized 20:24 concluded 42:7 condition 9:9 contact 6:19 contains 38:9 contract 9:19 36:12,13,14,15 36:17,18,19,21,22,25 37:11 37:12,14 Contractor 9:13 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 47 of 53 PageID #: 321 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 2] conversation 5:23 19:10 copies 22:19 corporation 24:2 correct 10:10,14 correctly 5:25 course 29:24 court 1:2 3:10 8:17 44:2 current 11:3 currently 11:12 15:7 C-E-I-R-Y 33:2 C7091546 36:23 D D 43:1 daily 25:14,16,17,20 26:6 30:14,17 31:3,11,20,22 35:18 date 45:7 day 15:20 16:2,6,13 17:11 25:25 26:8,19 29:4,9 31:5 32:3,14 42:15 45:15 days 25:13 26:10,13,15,20 27:17 30:19,21,23,25 32:5,9 32:11 41:16 day-to-day 9:23 December 22:13,15 26:14,15 26:18 30:24,25 32:10,12,19 decisions 40:25 declaring 40:10 deductions 27:8,19 Defendant 1:20 2:8 Defendant(s) 1:11 deliver 17:11,16 deliveries 11:8 25:5 32:15 delivery 10:2,11,12,21 11:8 11:18 17:7 department 19:6 depending 13:22 14:22 25:12 depends 16:4,21 deposition 3:7,7 4:25 5:6 8:8 8:13 23:7 43:11 Derick 32:22 designate 5:2 designates 5:9 determine 14:5 18:19 27:15 34:12 determined 14:18 22:8 25:23 27:18 devices 20:20 differed 25:12 difference 18:5 different 26:22 33:16 37:8,13 37:17 differs 9:23 discuss 25:8 DISTRICT 1:2,2 44:2,5 Docket 1:13 document 19:13,20,24 27:2 28:14 29:8 33:11,15,17,20 33:23,25 34:5,10,20 35:3 36:2,6 37:22,25 38:4,11,18 38:21 39:7,8,11 documents 22:19 40:10 driver 17:2,8,10,14,18,22,23 18:3,4,5,6,10,20 30:8,10 33:6 35:5 drivers 11:9,13 18:13,16 34:22,23 drivers's 18:22 driver's 17:15 18:6,18 35:3 drives 18:6 duly 4:4,11 45:7 D-E-R-I-C-K 32:23 E E 2:2,2 4:9,9 37:3 43:1,8 44:1 45:2 earned 41:17 East 23:13,21 EASTERN 1:2 44:5 effect 3:9 eight 5:9 26:8 electronic 20:21 Elmhurst 23:13,21 employed 13:4 employee 5:16 6:13 7:2,15 11:9 14:19 15:15,17 17:7 19:12,19,23 20:17,17,21,25 21:4,16 22:6,20 24:13 37:8 37:10 41:17,25 employees 6:19 7:9 11:3,7,12 11:17,23 12:20,23 13:2,15 13:18,20,23 14:2,9,12,17 15:7,12,24 16:9,23 17:3 18:10,25 19:3 20:3,9 21:23 22:2,16 23:18 27:12 29:12 29:15 34:2,6,13,16,18 35:6 35:17,18,21,23 41:6,9,12,15 ends 16:3 English 4:6,7 entitled 39:8 equipment 20:21,25 ESQ 2:6,10 estimated 41:23 everyday 29:14 exactly 20:15 23:14 26:22 31:16,24 37:2 Examination 1:19 4:14 42:6 43:3 examined 4:8,13 exceed 14:5 Exhibit 5:7 33:12,13,15 35:18 36:3,4,6 37:22 38:19 39:5,7 Exhibits 37:20 exist 41:12 Express 1:8 2:8 4:23,25 F F 45:2 facility 23:19,21,22 Fair 8:2 far 8:20 17:21 February 1:16 45:15 federal 39:14,16,17 40:10 FedEx 9:19,22,24 18:12,14 18:17 20:24 21:3,17,20,22 23:20,21 25:5 28:20 29:13 29:17,18,20,21 31:11 32:15 33:10 36:13,14,17,18 37:4,4 37:7,9,10,12,14 38:5,7 39:3 feel 5:25 file 39:18 files 39:23 40:9 filing 3:6 fill 19:5,7 20:10 filled 20:16 fired 29:20,21 first 4:4,11 5:5,14 21:18 27:24 30:2 five 26:7,11,13,20 30:21,23 31:5 32:2,7,9 following 44:6,7 follows 4:8,13 force 3:9 foregoing 45:6,8 form 3:12 8:5 19:6,14 20:10 34:14 38:8 39:12 forms 19:5,7 20:12,14,16 27:18 34:17 39:2 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 48 of 53 PageID #: 322 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 3] forty 22:3,18 42:3 four 12:6,21 36:6 further 3:11 45:10 G G 4:9 Gardens 2:10 GILL 2:9 give 8:11 9:3,6 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informs 19:13 inhibit 9:9 interested 45:12 interject 5:20 6:2 interpret 4:5 Interpreter 2:13 4:3 6:6 10:15,19,22 21:8,12 40:4,15 introduction 8:11 IRS 39:18 issue 27:10 40:7 item 5:14 6:8,10,16,18,22,24 7:5,12,18,20,23,25 items 5:3,9,11 7:14 I.D 21:19 29:7,11 36:12,13 36:15 37:4,4,6,9,11 J jacket 28:3 January 7:16 30:7 job 7:14 9:12 11:20 17:25 jobs 11:6,16 Juan 31:12 Judge 3:10 July 30:7 K K 4:2,9 KADOCHNIKOV 2:9,10 5:20,24 8:5 10:5,9,17 19:8 21:6,9 39:24 keep 20:8,13,14 22:19,24 29:4 keeps 20:12 29:15 kept 22:23,25 23:4,19 Kevin 1:3 2:3 4:22 24:13,21 25:7 Kew 2:10 knew 25:9 know 5:18 6:4 9:2 14:19,22 16:11 19:6,14,17 23:12,24 24:4,7,10,22,25 29:23 32:25 33:4 36:12 37:4,12,16 38:7 38:12 40:9,13 knowledge 5:3 39:22 knowledgeable 5:12,13,19 6:7,15,21 7:4,11,17,22 8:4 L L 3:2 4:9 labeled 37:4 38:12 labor 8:2,3 19:6 LaGuardia 23:11 LANGUAGES 2:13 latest 15:14 law 2:5,9 8:3 41:14,22 laws 41:11,18 lawsuit 4:22 lawsuits 41:5 leave 17:15 20:11 28:4 leaves 15:19,21 left 29:9,11 Let's 21:15 LINE 44:8 list 34:5,13,15 35:17 43:13,15 listed 34:9 35:3 load 18:3 loading 11:8,18 17:21,22 loads 17:23 located 23:10 29:17 location 23:16 long 12:5 20:14 31:18 look 33:17 36:8,11 looks 38:19 M maintaining 7:8 maintains 21:20 making 40:25 Maldonado 30:4,4,6,8,14,19 30:22 31:10 Maldonado's 31:3 Malecki 2:6 4:15,21 6:3 10:21 21:14 40:3,6 43:4 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 49 of 53 PageID #: 323 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 4] management 13:5 Manager 29:22 manages 9:22 mark 5:6 33:11 36:2 marked 5:8 33:14 36:4 37:21 38:18 39:6 marriage 45:11 Mateo 31:12,20,25 32:5 33:5 33:9 matter 45:13 maximum 22:6 mean 8:23 10:19 27:6 29:2 39:16,17 meaning 14:3 22:3 medical 9:9 medication 9:8 MELISSA 45:4,21 Merreld 32:23 mind 40:2 minimum 13:13,21 19:7,17 minus 27:7,19 miscellaneous 37:23 38:2 43:17 Monday 32:16,18 money 40:5 morning 4:21 17:16 M-E-R-R-E-L-D 32:23 N N 2:2 3:2 4:2 43:1 45:2 name 4:16,21 24:25 27:21,23 27:24 28:5,10 29:25 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11:18 16:4 17:11,16 21:18 page 6:10 33:15 36:6 37:22 39:7 43:3,9 44:8 paid 13:12,13,15,18,20,23 14:6 19:15,16,18 25:9,14 26:23,25 31:7 35:18,21,23 paper 28:25 29:2 parties 1:21 3:5 45:11 pay 13:25 26:7 27:2 30:15,17 31:22 35:19 38:10 41:16 paycheck 19:19 20:7 28:13 paychecks 27:12 paying 41:22 payment 6:11 13:8,11 19:23 41:9,15,19 payments 41:6,12 payroll 27:4,5,9 peak 22:13,14 penalty 8:14 people 33:21 34:7,8 35:3 perform 15:23 period 24:16 26:18 perjury 8:15 permitted 18:15 person 5:11,13,18 6:7,15,21 7:4,11,17,22 8:4 16:25 21:10 29:23 32:25 33:4 37:6 Pg 44:3 Pgs 44:3 phone 28:2,6,10 40:16,18,20 40:21 physically 23:4 piece 28:25 plaintiff 1:21 2:3 4:22 5:15 6:12 7:2,10,15 36:4 43:9 Plaintiff's 5:6,7 33:13 37:20 39:5 Plaintiff(s) 1:5 please 4:16,18 9:2 point 8:25 Polanco 33:2 polices 6:24 12:22 policies 5:14 6:11 7:7 13:7,10 policy 22:5 position 13:5 prepare 34:15 prepared 33:20,23 34:14 39:12 present 2:12 5:17 6:14,20 7:3 7:10,16,21 8:4 previously 15:5 prior 35:9 probably 20:19 problem 6:3 problems 6:5 procedure 8:13 procedures 5:15 6:11,25 7:7 12:23 profits 23:25 provide 21:17 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 50 of 53 PageID #: 324 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 5] provided 28:10 Public 1:21 4:4,11 42:19 45:4 pursuant 4:24 put 34:13 P-O-L-A-N-C-O 33:3 P.C 2:9 P.L.L.C 2:5 p.m 1:17 16:10 42:6 Q Queens 2:9 question 8:19 10:6,10 14:10 21:15 27:11 38:3 40:8 questions 4:6 8:20 42:4 R R 2:2,13 4:2,2,9 44:1,1 45:2 range 30:18 rate 25:8,11,14,15,17,20 26:6 27:2 30:14,17 31:3,20,22,25 35:18 read 10:7 really 21:6 reason 9:5 44:10,12,14,16,18 44:20,22,24 reasons 16:19 44:7 recall 31:18,22 receive 19:12,14 20:3 24:2 25:20 26:6 27:2 28:14 31:4 31:25 39:2 received 20:6 22:20 27:4,5,7 28:13 receives 19:19 receiving 14:2 record 4:16,18 5:24,25 10:8 19:9 21:10 29:4 45:8 records 7:8 20:8 21:20 22:23 23:18,20 28:17,21 31:9 33:8 regard 13:7,10 22:5 31:9 33:9 41:6 regarding 5:15 6:11,25 7:8 12:23 18:18 23:18 41:9 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says 37:23 39:8 41:22 scan 29:6,14 scanned 29:6,10 scanner 21:3,4,17,21 29:13 29:15 scans 21:18,19 schedule 6:25 7:9 13:16 14:9 14:9,11,12,18 school 18:11,12,13,16,21 sealing 3:6 season 22:13,14 second 6:10 seek 41:8 seen 33:18 36:9,23 37:24 38:4,20 send 39:4 sends 38:5,7 Senior 29:22 Sergey 1:8,19 2:8 4:17 42:11 45:6 set 21:23 25:24 26:3 45:14 setting 14:8 shakes 8:22 ship 9:19 Shipping 9:25 show 15:8,12,15,24 20:25 28:18 showed 15:17 sign 29:4,9 signed 3:8,10 signifies 37:5 sign-in 28:25 similar 39:2 similarly 1:4 2:4 situated 1:4 2:4 six 11:5,6,12 15:7 26:17 31:2 31:5 32:2,13 slightly 22:9 Sorry 10:9 Sosa 1:3 2:3 4:22 24:13,16,21 24:24 25:7,14,19,25 26:4,6 26:10,12,15,19,23,25 28:13 28:18,22,24 29:3,8,19,21 30:10,12 Sosa's 25:11,17 space 28:4,10 speak 40:12 speaking 10:18 21:8 specific 11:20 15:20 16:2,6 18:9,17 19:5 36:19 specifically 29:21 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 51 of 53 PageID #: 325 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 6] ss 44:4 Standards 8:2 start 12:7 started 12:9,10,19 20:17 state 1:22 4:5,12,16,18 statement 20:4 31:11 statements 18:24 States 1:2 39:9 44:2 stating 19:20 STIPULATED 3:4,11 stop 29:19 Street 4:19 Subscribed 42:14 Suite 2:5,9 Sunday 32:16,20 suppose 14:20 21:24 sure 28:23 switch 39:25 sworn 3:8,10 4:4,11 42:14 45:7 system 22:25 29:10 S-Corp 43:21 S-Corporation 39:9 T T 3:2,2 43:8 44:1 45:2,2 take 8:14,25 27:15 33:17 36:8 taken 1:20 8:8 9:8 tax 27:8,19 38:10,22 39:14,17 39:18 40:4,5 43:19 taxes 27:16 38:15,16 39:23 tell 19:17 20:15 26:22 33:18 36:8 37:24 38:20 40:14 telling 14:16 terminal 14:21,25 16:7,22 17:9,13,15 23:10,15,19 24:23 32:16,18,20 terminals 16:14 testified 4:8,13 testify 9:10 testifying 8:15 testimony 8:14 9:6 10:7 45:9 Thank 42:4 Thanks 28:12 thing 5:5 think 10:13,15 12:21 39:20 third 1:15 2:5 12:15 31:12 three 11:2,16,19 12:2 23:17 35:13 time 3:12 12:7 13:12 14:14 14:21,25 15:5,12,14,14,20 16:2,6,13,16,17 17:6 21:10 21:17 22:11,14,20 24:16 26:12,18 29:11 32:8 41:24 times 13:14 22:12 28:20 41:24 title 9:12 11:20 today 9:6,10 top 18:20 39:8 total 38:9 track 10:12 21:3 traffic 16:21 transcript 28:5 translated 5:25 8:19 translating 21:11 translation 10:10,11,14,16 10:22 21:7 39:25 40:7 trial 1:19 3:13 8:15 tried 41:8 truck 10:17,19,21 11:11 12:16 15:19,21 16:5,7,19,22 17:2,4,6,8,19 18:7 35:4 trucks 10:3,11,23,24 12:3,11 16:10,13 17:21,22 18:4 true 45:8 two 11:14 12:14,17,17 35:16 39:7 type 9:9,24 41:5 typical 22:11 typically 16:14 22:17 26:19 30:19 32:6,11 U U 3:2 understanding 41:14,21 United 1:2 39:9 44:2 use 21:4,17 Usually 22:8 utilize 27:9 U.S 43:21 V V 4:2,9 various 5:3 36:7 vehicle 11:10 verbal 8:21 W wage 13:13,21 14:3 18:24 19:13,17,24 wages 6:12 19:7 41:19,22 wait 8:19 waived 3:7 want 5:18 way 21:15 40:13 45:12 week 14:13 19:21 20:5,6 21:24 22:3,7,16,21 26:4,10 26:13,16,23 27:3,13 28:15 28:19,22 30:23 32:5,9,14 41:25 weekly 13:15,17,25 25:10 27:4,7 35:21 West 4:19 WHEREOF 45:14 Williams 30:2 wish 44:6 witness 4:10 42:7 45:6,9,14 work 6:25 7:8 9:24 10:13 13:24 14:4,9,12,13,17,20,22 15:7,19,23 17:3 20:11,11 21:5,11,13,16,24 22:2,6,10 22:17 24:16,23,24 25:22,25 26:4,10,16,19 29:3,5,9,11 29:16 30:6,20,21,22,25 31:6 31:15 32:6,11 42:2 workday 16:3 worked 19:21 20:5,7,9 21:2 25:13,19,21 26:7,13 27:3 28:15,18,22,24 30:4 31:4,10 31:13,18 32:2,8,24 33:3,9 33:21 34:2,6,7,8,23 working 29:19 works 11:12,14 37:7 40:24 write 27:10 writes 27:12 W-2 34:17 X X 1:3,12 43:1,8 Y Y 4:2,9,9 year 11:23,24 15:4 22:11,12 24:20 31:19 35:4 38:5,24 39:4,8,19,23 40:11 years 12:6,17,17 23:17 33:22 34:3,20,23 35:7 York 1:2,2,15,15,22 2:6,6,10 4:5,12,20 8:3 44:2,5 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 52 of 53 PageID #: 326 866.876.8757 U.S.LEGAL SUPPORT, INC. www.uslegalsupport.com [Page 7] Z Z 4:9 Zaslavskiy 1:8,20 2:8 4:1,17 5:1 6:1 7:1 8:1 9:1 10:1 11:1 12:1 13:1 14:1 15:1 16:1 17:1 18:1 19:1 20:1 21:1 22:1 23:1 24:1 25:1 26:1 27:1 28:1 29:1 30:1 31:1 32:1 33:1 34:1 35:1 36:1 37:1 38:1 39:1 40:1 41:1 42:1,11 45:7 zip 23:13 $ $412,486.73 38:12 0 0190 40:21 1 1 5:6,7 43:11 10 15:22,24 10:11 1:17 100 30:18 31:24 10017 2:6 11 16:10 110 25:18 30:18 31:24 1115 30:18 11224 4:20 11370 23:14 11415 2:10 12:02 1:17 42:6 120 25:18 125-10 2:9 13-CV-04826 1:13 1821 1:15 2:5 19-M 4:19 2 2 33:12,13,15 35:18 43:13 2007 5:16 6:13,20 7:3,16,21 8:3 2009 34:9 35:2 2010 12:7,8 31:16 34:9 35:2 2011 12:9 20:18 31:17 35:2 39:3,8,15 43:21 2012 24:11,18 30:7 34:21 39:3 2013 24:8,19,19 30:7 34:21 35:6,10,12 37:23 43:17 2014 23:25 24:5,19 34:21 38:19,22,24 43:19 2015 1:16 42:15 45:15 223 2:9 23 1:16 5:16 6:13,20 7:3,10 7:16,21 8:3 23rd 45:15 24th 23:13 2930 4:19 3 3 6:18 36:3,4,6 43:15 300,000 24:9 32 43:13 332 40:20 35 43:15 37 43:17,19 38 43:21 4 4 6:24 16:15 37:20,22 43:4,17 4:30 16:15,17,20 400,000 24:6 5 5 7:7 37:20 38:19 43:11,19 5th 4:19 6 6 7:14 39:5,7 43:21 6:30 15:2,3,8 655 1:15 2:5 7 7 7:20 14:23 15:6,13 38:12,20 38:23 7:30 15:13 718 40:20 8 8 7:25 14:24 15:13 83-15 23:13 9 9:30 15:22,24 Case 1:13-cv-04826-CLP Document 70-4 Filed 09/09/16 Page 53 of 53 PageID #: 327 Exhibit 2 Case 1:13-cv-04826-CLP Document 70-5 Filed 09/09/16 Page 1 of 4 PageID #: 328 Case 1:13-cv-04826-CLP Document 19-1 Filed 03/20/14 Page 21 of 83 PageID #: 92Case 1:13-cv-04826-CLP Document 70-5 Filed 09/09/16 Page 2 of 4 PageID #: 329 Case 1:13-cv-04826-CLP Document 19-1 Filed 03/20/14 Page 22 of 83 PageID #: 93Case 1:13-cv-04826-CLP Document 70-5 Filed 09/09/16 Page 3 of 4 PageID #: 330 Case 1:13-cv-04826-CLP Document 19-1 Filed 03/20/14 Page 23 of 83 PageID #: 94Case 1:13-cv-04826-CLP Document 70-5 Filed 09/09/16 Page 4 of 4 PageID #: 331 Exhibit 3 Case 1:13-cv-04826-CLP Document 70-6 Filed 09/09/16 Page 1 of 4 PageID #: 332 Case 1:13-cv-04826-CLP Document 19-1 Filed 03/20/14 Page 50 of 83 PageID #: 121Case 1:13-cv-04826-CLP Document 70-6 Filed 09/ 9/16 Page 2 4 PageID #: 333 Case 1:13-cv-04826-CLP Document 19-1 Filed 03/20/14 Page 51 of 83 PageID #: 122Case 1:13-cv-04826-CLP Document 70-6 Filed 09/ 9/16 Page 3 4 PageID #: 334 Case 1:13-cv-04826-CLP Document 19-1 Filed 03/20/14 Page 52 of 83 PageID #: 123Case 1:13-cv-04826-CLP Document 70-6 Filed 09/ 9/16 Page 4 4 PageID #: 335 Exhibit 4 Case 1:13-cv-04826-CLP Document 70-7 Filed 09/09/16 Page 1 of 4 PageID #: 336 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X KEVIN SOSA, on behalf of himself and all others similarly situated, Plaintiffs, Docket No.: 13-cv-04826 (CBA)(CLP) -against- DECLARATION OF KEVIN SOSA IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT CAZ-59 EXPRESS, INC.; SERGEY ZASLAVSKIY, an individual; Defendants. --------------------------------------------------------------------X KEVIN SOSA declares under oath and penalty of perjury as follows: 1) I am the named Plaintiff in the above-captioned matter. I have personal knowledge of the matters contained in this affidavit and, if called upon, I could and would testify to each of the statements made herein. I make this affidavit in support of the motion for partial summary judgment filed in this action. 2) I was employed by Defendants CAZ-59 Express, Inc. (“CAZ-59”) and Sergey Zaslavskiy (collectively “Defendants”) from in or about August of 2012 to April of 2013 as an assistant to the driver of a FedEx delivery truck. 3) I was a non-managerial employee who did not have supervisory authority over any other employee of CAZ-59. 4) My hours were tracked through FedEx scanner systems, but my employer frequently required me to stay at the warehouse facility and continue working after clocking out on my scanner. Case 1:13-cv-04826-CLP Document 70-7 Filed 09/09/16 Page 2 of 4 PageID #: 337 2 5) During my employment at CAZ-59, I rarely, if ever, received any meal breaks and usually worked my entire shift without any breaks of any kind. 6) For each day I worked I was paid a daily rate of $120.00 per day, no matter how many hours I had worked that day. 7) I was paid weekly by check. 8) Throughout my entire employment with CAZ-59, I never received a wage statement that contained information about my hourly rate, my overtime rate, or the amount of hours that I had worked that week. 9) When I was hired at CAZ-59, I never received a notice that indicated my hourly rate of pay, my overtime rate of pay, and the hours I was expected to work. 10) For my entire employment with CAZ-59, I worked from 7:00 a.m. until to 7:00 p.m., five days per week, for a total of sixty hours per week. During the month of December 2012, I worked from 7:00 a.m. to 7:00 p.m., six days per week, for a total of seventy-two hours per week. 11) I was not paid at an overtime rate of pay for any of the hours I worked over forty in a workweek. 12) I was never compensated for the hours I worked over forty in a workweek. 13) While working for CAZ-59, I handled packages that were shipped from out of state locations and handled packages that were to be shipped to out of state locations. Case 1:13-cv-04826-CLP Document 70-7 Filed 09/09/16 Page 3 of 4 PageID #: 338 I declare under penalty of perjury that the foregoing is true and correct. Dated: September Cj .2016 Great Neck, New York Sworn to before me this£ day Notary Public MICHAEL R . MINKOFF, ESQ . Nolary Public. State of New York Registration #02M163182 18 Qualified In Kings County Commission Expires Jan . 20 . 2019 KEVIN SOSA 3 Case 1:13-cv-04826-CLP Document 70-7 Filed 09/09/16 Page 4 of 4 PageID #: 339 Exhibit 5 Case 1:13-cv-04826-CLP Document 70-8 Filed 09/09/16 Page 1 of 4 PageID #: 340 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X KEVIN SOSA, on behalf of himself and all others similarly situated, Plaintiffs, Docket No.: 13-cv-04826 (CBA)(CLP) -against- DECLARATION OF ALBERT MALDONADO IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT CAZ-59 EXPRESS, INC.; SERGEY ZASLAVSKIY, an individual; Defendants. --------------------------------------------------------------------X ALBERT MALDONADO declares under oath and penalty of perjury as follows: 1) I am an opt-in Plaintiff in the above-captioned matter. I have personal knowledge of the matters contained in this affidavit and, if called upon, I could and would testify to each of the statements made herein. I make this affidavit in support of the motion for partial summary judgment filed in this action. 2) I was employed by Defendants CAZ-59 Express, Inc. (“CAZ-59”) and Sergey Zaslavskiy (collectively “Defendants”) from in or about January of 2012 to January of 2013 as an assistant to the driver of a FedEx delivery truck. 3) I was a non-managerial employee who did not have supervisory authority over any other employee of CAZ-59. 4) My hours were tracked through FedEx scanner systems, but my employer frequently required me to stay at the warehouse facility and continue working after clocking out on my scanner. Case 1:13-cv-04826-CLP Document 70-8 Filed 09/09/16 Page 2 of 4 PageID #: 341 2 5) During my employment at CAZ-59, I rarely, if ever, received any meal breaks and usually worked my entire shift without any breaks of any kind. 6) For each day I worked I was paid a daily rate of $120.00 per day, no matter how many hours I had worked that day. 7) I was paid weekly by check. 8) Throughout my entire employment with CAZ-59, I never received a wage statement that contained information about my hourly rate, my overtime rate, or the amount of hours that I had worked that week. 9) When I was hired at CAZ-59, I never received a notice that indicated my hourly rate of pay, my overtime rate of pay, and the hours I was expected to work. 10) For my entire employment with CAZ-59, I worked from 7:00 a.m. until to 7:00 p.m., five days per week, for a total of sixty hours per week. During the month of December 2012, I worked from 7:00 a.m. to 7:00 p.m., six days per week, for a total of seventy-two hours per week. 11) I was not paid at an overtime rate of pay for any of the hours I worked over forty in a workweek. 12) I was never compensated for the hours I worked over forty in a workweek. 13) While working for CAZ-59, I handled packages that were shipped from out of state locations and handled packages that were to be shipped to out of state locations. Case 1:13-cv-04826-CLP Document 70-8 Filed 09/09/16 Page 3 of 4 PageID #: 342 I declare under penalty of perjury that the roregoing is true and correct. Dated: September ~ , 20 16 Great Neck, New York Sworn to before me th is qf.-. day ~k~4W Notary Public MICHAEL R. MINKOFF. ESQ . Notary Public. Slate of New YO I \; Reg istration #02M163182 18 Qualified In Kings County Commission Expiles Jan. 20. 20H: I ~TM LDONADO 3 Case 1:13-cv-04826-CLP Document 70-8 Filed 09/09/16 Page 4 of 4 PageID #: 343