Opinions and documents
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FIDEL HERNANDEZ GIL,
Plaintiff,
v. MEMORANDUM & ORDER
26-CV-5222 (HG)
A&L II NEW YORK CORPORATION
D/B/A BAGELS & CO., MEEMA N.Y.
CORPORATION D/B/A BAGELS & CO.,
and HILA ASHKENAZI,
Defendants.
HECTOR GONZALEZ, United States District Judge:
Defendants have moved to dismiss Plaintiff’s First Amended Complaint, which asserts
claims under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”)
based on allegations that Defendants failed to pay Plaintiff overtime compensation, failed to pay
him spread-of-hours premium compensation, and failed to provide him a wage notice and wage
statements. ECF No. 18 (“FAC”).1 For the reasons set forth below, the Court DENIES
Defendants’ motion as to (i) the overtime compensation claims, (ii) the spread-of-hours claim,
and (iii) the claims against Individual Defendant Ashkenazi, and GRANTS Defendants’ motion
as to the wage notice and wage statements claim. ECF No. 20 (“Mot.”). Defendants shall file an
answer that responds to the remaining claims on or before October 5, 2026.
1 Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”).
BACKGROUND2
Plaintiff Fidel Hernandez Gil was employed by Defendants’ restaurant, located in Fresh
Medows, New York, and doing business under the name Bagels & Co., from approximately
December 15, 2024, to June 30, 2025. FAC ¶¶ 14–17. Individual Defendant Hila Ashkenazi is
“an owner or part owner and principal of Bagels & Co., and/or a manager of the business” who
allegedly exercised control over the terms and conditions of Plaintiff’s employment. Id. ¶¶ 8–9.
Plaintiff alleges that he worked approximately 58.5 hours per week for Bagels & Co. “as
a cook, performing cleaning, and making smoothies” and was paid a flat salary of $900 per week
in cash but was not paid an hourly wage and was not paid overtime. Id. ¶¶ 17, 20–21.
According to Plaintiff, he typically worked “Monday, Tuesday, Wednesday, Thursday, and
Sunday from 6:00 a.m. to 3:30 p.m. (9.5 hours per day); and Friday from 4:30 a.m. to 3:30 p.m.
(11 hours)” with Saturday off. Id. ¶ 20. Plaintiff also alleges that Defendants failed to provide
him with a wage notice and failed to provide wage statements or pay stubs with each payment he
received. Id. ¶¶ 28–31.
Plaintiff asserts four causes of action against Defendants. His first claim alleges that
Defendants violated the FLSA by failing to pay him proper overtime compensation. Id. ¶¶ 32–
37. His second claim alleges that Defendants violated the NYLL by (i) failing to pay him an
hourly rate and (ii) failing to pay him proper overtime compensation. Id. ¶¶ 38–42. His third
claim alleges that Defendants violated the NYLL by failing to pay him an additional hour’s pay,
at the applicable minimum wage, for each shift worked lasting more than ten hours (the “spread-
2 The Court “recite[s] the substance of the allegations as if they represented true facts, with
the understanding that these are not findings of the [C]ourt, as [I] have no way of knowing at this
stage what are the true facts.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d
Cir. 2021).
of-hours” premium). Id. ¶¶ 43–47. Finally, his fourth claim alleges that Defendants violated the
NYLL by (i) failing to provide him with notice of his wage rate at the time he was hired or at any
time thereafter and (ii) failing to provide him with wage statements. Id. ¶¶ 48–53. Plaintiff
further alleges that Defendants’ failure to provide him with a wage rate notice or wage
statements caused him financial harm by preventing him from receiving his lawfully owed
compensation, including minimum wage, overtime premium, and spread-of-hours premium. Id.
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim is plausible ‘when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d
Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “The purpose of a motion to
dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of
[p]laintiff’[s] claims for relief.” Amadei v. Nielsen, 348 F. Supp. 3d 145, 155 (E.D.N.Y. 2018).
Although all allegations contained in a complaint are assumed to be true, this tenet is
“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
DISCUSSION
The Court denies Defendants’ motion to dismiss as to the overtime compensation and
spread-of-hours claims and as to the claims against Individual Defendant Ashkenazi, but grants
Defendants’ motion to dismiss as to the wage notice and wage statements claim.
I. Plaintiff’s Overtime Compensation Claims
Defendants state in a conclusory fashion that Plaintiff’s overtime compensation claims
should be dismissed because Plaintiff’s allegation that he regularly worked approximately 58.5
hours per week is insufficient. Mot. at 2, 6–8. Defendants grossly mischaracterize Plaintiff’s
allegation by claiming that it lacks “any supporting factual context, such as how many hours he
actually worked in a given week or how much he was actually paid during that week compared
to what he was entitled to under the law.” Id. at 2. This assertion is incorrect. Plaintiff clearly
sets out the number of hours he worked not just for each week but for each day of the weeks he
was employed by Defendants. See FAC ¶ 20. Defendants’ contention that Plaintiff “admits in
the same sentence that his hours varied” is also inaccurate. Mot. at 4. Plaintiff does not mention
any variation in his weekly schedule. See generally FAC.
In order to plead a plausible FLSA overtime claim, Plaintiff “must sufficiently allege 40
hours of work in a given workweek as well as some uncompensated time in excess of the 40
hours.” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013).
Plaintiff must also “provide sufficient detail about the length and frequency of [his] unpaid
work.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir.
2013). “Where [a plaintiff] plausibly allege[s] that [he] worked more than forty hours per week
as part of [his] regularly scheduled workweek, [he has] adequately stated a claim under the
FLSA and need not list the specific workweeks during which [he] worked more than forty
hours.” Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 112 (2d Cir. 2023). Plaintiff’s
allegation, which details the number of hours he worked for every day of the workweek during
the specific time he was employed by Defendants, and the exact compensation he received for
each one of those workweeks, easily meets this standard. Defendants’ conclusory and
misleading assertions about Plaintiff’s overtime claims do not provide the Court with a sufficient
basis to dismiss these claims. Accordingly, Defendants’ motion to dismiss Plaintiff’s overtime
compensation claims is denied.
II. Plaintiff’s Spread-of-Hours Claim
Under the NYLL, employees are entitled to an additional hour’s pay, at the applicable
minimum wage, for each shift worked lasting more than ten hours. See 12 NYCRR § 142-2.4.
Plaintiff alleges that for the duration of his employment, he worked an 11-hour shift every week
on Friday without receiving an additional hour’s pay at the applicable minimum wage for those
shifts. See FAC ¶¶ 20, 26–27. Defendants’ motion, which barely addresses Plaintiff’s spread-
of-hours claim, does not provide the Court with a basis to dismiss this claim. See generally Mot.
Accordingly, Defendants’ motion to dismiss the spread-of-hours claim is denied.
III. Plaintiff’s Claims Against Individual Defendant Ashkenazi
Defendants also argue that Individual Defendant Ashkenazi cannot be held liable under
the FLSA and the NYLL because Plaintiff does not sufficiently allege that she was his employer.
Mot. at 3, 8–10. The Court disagrees.
In determining whether an employer-employee relationship exists under the FLSA and
the NYLL, the Court’s analysis “should be grounded in economic reality rather than technical
concepts.” Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013); see also Gyalpo v.
Holbrook Dev. Corp., 577 B.R. 629, 638 (E.D.N.Y. 2017) (the definition of an employee under
the NYLL, “closely resembles the definition in the FLSA”). Moreover, “[i]ndividual liability
under the FLSA is premised upon personal responsibility for making decisions about the conduct
of the business that contributed to the violations of the Act.” Mendez v. U.S. Nonwovens Corp.,
2 F. Supp. 3d 442, 458 (E.D.N.Y. 2014). In assessing whether an individual within a company
can be held personally liable, courts in this Circuit “look[] to the totality of the circumstances,
and also consider[] the putative employer’s level of operation control.” Sethi v. Narod, 974 F.
Supp. 2d 162, 186 (E.D.N.Y. 2013). Factors that help courts determine whether an individual
had sufficient operational control over a company to be liable under the FLSA and the NYLL
include whether the individual: “(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.” Tapia v. Blch 3rd Ave LLC,
906 F.3d 58, 61 (2d Cir. 2018). Being an employer under the FLSA and the NYLL “does not
require the continuous monitoring of employees, looking over their shoulders at all times.” Hart
v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 912 (S.D.N.Y. 2013). “[A]n individual’s
authority over management, supervision, and oversight of a company’s affairs in general is
relevant to the totality of the circumstances in determining the individual’s operational control of
the company’s employment of the plaintiff employee[].” Irizarry, 722 F.3d at 110.
Plaintiff alleges that Ashkenazi “has the power to hire and fire employees, set wages and
work schedules, and maintain their records, including those of Plaintiff.” FAC ¶ 8 (emphasis
added). Plaintiff further alleges that Ashkenazi “has been involved in the day-to-day operations
of Bagels & Co. and played an active role in managing the business, as well as scheduling,
managing, supervising and paying Plaintiff during his employment with Defendants.” Id. ¶ 9.
Although Plaintiff’s claims against Ashkenazi are fairly bare bones, at this stage of the litigation,
Plaintiff has pled facts that, if true, plausibly suggest that Ashkenazi was his employer under the
FLSA and the NYLL. See Irizarry, 722 F.3d at 105; Matson, 631 F.3d at 63; see also Winfield v.
Babylon Beauty Sch. of Smithtown, Inc., 89 F. Supp. 3d 556, 569 (E.D.N.Y. 2015) (finding that
plaintiff had pled sufficient facts to suggest that the individual defendants who owned the
business at issue had operational control despite “somewhat vague” allegations in the complaint
that did “not provide any non-conclusory details regarding the nature of the [i]ndividual
[d]efendants’ positions, what their duties entailed, [or] how many employees they controlled”).
Accordingly, because Plaintiff’s complaint includes facts sufficient to support his claim that
Ashkenazi was his employer and is liable under the FLSA and the NYLL, Defendants’ motion to
dismiss Plaintiff’s claims against Ashkenazi is denied.
IV. Plaintiff’s Wage Notice and Wage Statements Claim
With respect to Plaintiff’s claim under NYLL §§ 195(1) and (3), Plaintiff has not
properly established standing in light of Guthrie v. Rainbow Fencing Inc., 113 F.4th 300 (2d Cir.
2024). Plaintiff alleges that Defendants’ failure to provide him with the required wage notice
and wage statements caused him financial harm by preventing him from “being informed of the
actual amount he has been paid on an hourly basis” such that he could not “calculate or verify”
whether he was being paid the proper amount. See FAC ¶¶ 28–30, 48–53. However, as Plaintiff
acknowledges in his opposition, “[a] bare ‘informational injury’ is insufficient” to establish
Article III standing in this context. See ECF No. 22 at 15 (citing Guthrie, 113 F.4th at 308 &
n.4). Plaintiff “must show some causal connection between the lack of accurate notices and the
downstream harm” and unless he can show that he would have advocated for himself “and
plausibly would have avoided some actual harm or obtained some actual benefit if accurate
notices had been provided,” he “has not established a concrete injury-in-fact sufficient to confer
standing.” Guthrie, 113 F.4th at 308. Plaintiff cannot assume the conclusion that the lack of
accurate notices prevented him from obtaining full payment of wages without analysis or by
relying on “speculation and conjecture.” Id. at 309. “Rather, [he] must support a plausible
theory as to how he was injured by [the] defendants’ failure to provide the required documents.”
Id. Because Plaintiff has failed to establish an “actual injury,” the Court must dismiss Plaintiff’s
claims for statutory damages. See Guthrie, 113 F.4th at 305.
V. Leave to Amend
Finally, with respect to the wage notice and wage statements claim, the Court denies
leave to amend. “A court should freely give leave when justice so requires, but it may, in its
discretion, deny leave to amend for good reason, including futility, bad faith, undue delay, or
undue prejudice to the opposing party.” MSP Recovery Claims, Series LLC v. Hereford Ins. Co.,
66 F.4th 77, 90–91 (2d Cir. 2023) (affirming denial of leave to amend). Here, because Plaintiff
does not seek leave to amend, the Court declines to grant it. See Gallop v. Cheney, 642 F.3d
364, 369 (2d Cir. 2011) (“[N]o court can be said to have erred in failing to grant a request [to
amend] that was not made.”). In any event, “leave to amend would be futile because plaintiff has
already had two bites at the apple and they have proven fruitless.” Harris v. Westchester Cnty.
Med. Ctr., No. 08-cv-1128, 2011 WL 23637429, at *4 (S.D.N.Y. July 6, 2011). On January 20,
2026, Defendants filed a pre-motion conference letter outlining the deficiencies in Plaintiff’s
wage notice and wage statements claim. See ECF No. 16 at 3–4. On January 23, 2026, the
Court directed Plaintiff to file a responsive letter that “explain[s] why the Court should not sua
sponte dismiss his wage notice/wage statement claim for failure to ‘show some causal
connection between the lack of accurate notices and the downstream harm,’” as required by
Guthrie. See Jan. 23, 2026, Text Order. Three days later, Plaintiff filed a responsive letter
stating, in relevant part, that “Plaintiff suffered financial harm from Defendants’ failure to
properly inform him of the hourly wage rates he was lawfully entitled to receive.” ECF No. 17
at 3. Plaintiff’s letter attempted to distinguish the facts at issue in this case from the facts in
Guthrie in a conclusory and unconvincing fashion. Id. The Court granted Plaintiff leave to file
an amended complaint that attempts to address these deficiencies. See Feb. 2, 2026, Text Order.
As explained in Part IV, Plaintiff’s attempt was unsuccessful.
Because Plaintiff has had multiple opportunities to plead additional facts to support his
wage notice and wage statements claim and has failed to do so, the Court declines to grant
Plaintiff the opportunity to file a second amended complaint.
CONCLUSION
For the reasons set forth above, the Court DENIES Defendants’ motion to dismiss as to
(i) the overtime compensation claims, (ii) the spread-of-hours claim, and (iii) the claims against
Individual Defendant Ashkenazi, and GRANTS Defendants’ motion as to the wage notice and
wage statements claim. Defendants shall file an answer to the remaining claims on or before
October 5, 2026.
The Clerk of Court is respectfully directed to enter judgment consistent with this Order.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
September 21, 2026
Not legal advice. These patterns come from public court records, not ratings of judges as people. They may reflect the types of cases a judge handles, local procedures or other factors, and they do not account for the facts of any individual case. Past patterns do not predict future rulings. Records can be incomplete, months behind current activity, or matched to the wrong person; sealed and confidential cases are not included. Use this as one piece of information, never the sole basis for legal strategy or a recusal motion. Full disclaimer: https://judgefinder.io/legal/disclaimer Read the full disclaimer.