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Szabelski v. AM&G Waterproofing LLC

FLSA Claims Dismissed for Failure to State Claim, Minimum Wage Not Violated

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MEMORANDUM & ORDER Plaintiff Henryk Szabelski commenced the above-captioned action on October 28, 2022, against Defendants AM&G Waterproofing, LLC (“AM&G”), Mike Rivera, William Rivera, and John Does 1-10. (Compl., Docket Entry No. 1.) On February 9, 2023, Plaintiff filed an Amended Complaint alleging, individually and on behalf of a putative class, that Defendants violated the prevailing wage payment provision of the Fair Labor Standards Act, 29 U.S.C. §201 et seq. (“FLSA”), and the prevailing wages, notice and record-keeping, and wage statement provisions of the New York Labor Law §§190 et seq. and 650 et seq. (“NYLL”).1 (Am. Compl., Docket Entry No. 15.) Plaintiff also alleges breach of contract and third-party beneficiary claims. (Id.) Defendants move to dismiss the Amended Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Plaintiff opposes the motion.2 For the reasons set forth below, the Court grants Defendants’ motion. I. Background AM&G is a general contractor providing waterproofing and construction services in the non-residential industry and performing city, state, and federally-financed projects.3 (Am. Compl.

19-20.) Defendants William Rivera and Mike Rivera, Chief Operating Officer (“COO”) and member of AM&G, respectively, were in charge of paying wages to Plaintiff and others similarly situated. (Id. 7.) John Does 1-10 are unidentified supervisors and foremen who directly supervised Plaintiff and kept track of his hours and those of others similarly situated. (Id. 9.) Plaintiff was employed by Defendants from 2014 through April of 2021, during which time he performed masonry work, pointing, and scaffolding work for “publicly financed projects.” (Id.

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