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NYC Sued By Medical Oxygen Tank Transporters For CityTime Denying Overtime

By Matthew Russell Lee

SDNY COURTHOUSE, Oct 29 – Alongside the big picture Trump and Honduras and UN bribery and OneCoin and #6ix9ine and Bangladesh Bank heist litigation in the U.S. District Court for the Southern District of New York, as in most such Federal district courts, is a steady stream of Fair Labor Standards Act litigation.

  On October 29, 2019 the case of FDNY Technical Services Medical Supply Unit workers from LIC, Queens against the City of New York for overtime had an initial conference before Magistrate Judge Stewart D. Aaron.

Judge Aaron explained that he prefers for each plaintiff to come in rather than representative evidence. He said in a prior FSLA bench trial he began at 8 am to accommodate a plaintiff. But he said a plaintiff must be committed to her or his claim in his court in order to recover damages.

  These plaintiffs transport medical oxygen tanks. They dispute the application of NYC's "CityTime" minute by minute tracking system to their work, particularly because it is not transparent. Judge Aaron by the end of October 29 issued a Rule 502(d) order that information provided in the case does not waive privilege. Inner City Press aims to have more on this.

On May 31 FSLA defendant Vanguard Dermatology argued to dismiss the FSLA retaliation case of Albert Lopez. After several rounds of argument, SDNY Judge John G. Koeltl denied the motion to dismiss. He encouraged taking it to a Magistrate Judge and since the one assigned, Pitman, is retiring, said the wheel would spin for another.

  The legal arguments were interesting, many of them citing and counter-citing Aflalo v Cantor Fitzgerald, L.P., 298 F.Supp. 3d 688 (SDNY 2018). Had Lopez let Vanguard Dermatology know that he was engaging in FSLA protected conduct? Lopez had noticed that the front desk staffers were not getting paid overtime despite working on Saturday, over the week's 40 hours. According to his lawyer Silva G. Gerges, Lopez tried to change this; Lopez was fired. But why? That's a question of fact. The Vanguard Dermatology lawyer Brian Shenker said his client is angry at Lopez, claiming he misread an insurance contract and cost the business tens of thousands of dollars and is not included to settle. So it may go to trial, any time after November 1 on 48 hours notice - Inner City Press will follow it.

  Much other FSLA litigation is certainly laudable -- Inner City Press recently covered the case of a delivery person who was lent from one restaurant to another which did not pay him, here.

 But on May 24 in front of SDNY Judge Alison J. Nathan defense lawyer Bingchen Li said that the plaintiff had never worked for the restaurant he represented, which incidentally had never sold sushi as alleged in the complaint. Inner City Press, the only media in the courtroom for this string of pre-trial conferences including one about the next New York State elections, was ready to believe this could be rote defendant denial.

 But Judge Nathan told the plaintiff's lawyer, Aaron Schweitzer of Troy Law, that he had previously named the wrong defendant in a case in front of her. She called for an early deposition to determine of this was happening again. And if it is? The case is Zhang v. Sabrina USA Inc., 18-cv-12332 (Nathan).

So too, sometimes, with the Americans With Disabilities Act. On May 4 in the SDNY courtroom of Judge John Koeltl, a lawyer who flew up from Aventura, Florida to try to enforce a seemingly oral deal with a deli's now replaced lawyer tried twice to seal portions of the case. It is Ricardo Velasquez v. West Village Finest Deli and Eropel LCC, its landlord, 18-cv-4580.

   Eropel's lawyer told Judge Koetlt that of the 22 claims Velasquez had begun with, he had sought a settlement with attorney's fees only four of the claims, including for example signage.  There, the lawyer representing Velasquez cut him off and said he didn't want the terms of the confidential (non) settlement made public. Later he told Judge Koeltl that he was concerned about submitting his main evidence, an email from the deli's deposed lawyer to the mediator. Judge Koeltl suggested he file it under seal. What is going on here?

  The deli's new lawyer, Ian Wallace, did not come to court - standing in for him was a so-called per diem lawyer who said that fact that Mr. Wallace was in London did not mean he did not acknowledge the magnitude of this case. Indeed. We'll have more on this.

Back on April 15, as reported by Inner City Press, a repeat ADA filer Stuart Finkelstein was called out in Judge Koeltl's courtroom if not by Judge Koeltl, as having perhaps filed a case without a client's consent and having kept the settlement. While only $15,000, as Inner City Press reported last week from the SDNY courtroom of Judge Alison Nathan, the volume of repeat ADA traffic is notable. So to was the response on April 15 - that Finkelstein file a declaration and what he called his proof, but some of it under seal, withheld from the public and presumably even his client. Inner City Press was the only media left in the courtroom and will have more on this.

Moments before in front of Judge Koeltl a doctor facing an NYPD parking ticket and reportedly saying "I'm the hero" back in 2016 was without question present as a police brutality jury trial. Rachel Wellner was at the plaintiff's table and NYPD officer Vega was on the stand, getting asked Didn't you touch near her breast? Wellner was a breast surgeon at Montefiore Hospital in The Bronx but got fired after what the tabloids called her "cop ram" incident. Both the Daily New and the New York Post at the time mocked her for saying she was the hero and the NYPD was not. Her civil complaint recites her voluntary work in Nicaragua and Israel. SDNY Judge John G. Koeltl at the end of questioning on April 15 told the jury to be sure not to check social media (how realistic that is today is a question), then held several off the record sidebars with the case's attorneys, followed by pleasantries with visitors from Australia.


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