Abe et al v. Yamaguchi & Friends, Inc. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Hisami Abe and Taisei Abe,
Plaintiffs,
v.
Yamaguchi & Friends, Inc. d/b/a/ Taka
Sushi, 	Takafumi 	Yamaguchi, 	and 	Rie
Yamaguchi,
Defendants.
MEMORANDUM AND ORDER
22-cv-3164 (NRM) (ARL)
NINA R. MORRISON, United States District Judge:
Plaintiffs Hisami Abe and Taisei Abe bring this action under the Fair Labor
Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) against Defendants
Yamaguchi & Friends, Inc., Takafumi Yamaguchi, and Rie Yamaguchi. Compl., ECF
No. 1. Familiarity with the facts and proceedings is assumed.
On January 18, 2025, after a premotion conference (“PMC”) and with notice to
the parties, the Court construed Defendants’ PMC letter in anticipation of a motion
for summary judgment and Local Rule 56.1 statement as the motion itself and
conditionally denied Defendants’ motion as to five out of six issues presented therein.
Order dated Jan. 18, 2025 (citing PMC Letter, ECF No. 68). 	The Court reserved
decision on the sixth issue, whether summary judgment should be granted on
enterprise coverage for Plaintiffs’ FLSA claims for certain years. 	Id. 	The Court
directed the parties to further brief that issue after the premotion conference. Id.; see
also Order dated Feb. 10, 2025. 	The Court also gave Defendants leave to file
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supplemental briefing on the five issues as to which the Court had conditionally
denied summary judgment, to give the Defendants the opportunity to “bring to the
Court’s attention factual matters or legal authorities that the Court may have
overlooked or misapprehended in its conditional ruling.” Order dated Jan. 18, 2025.
Having reviewed the parties’ supplemental briefing, ECF Nos. 74, 77, 79, 80,
81, 82, and 83, the Court now DECLINES to disturb the conditional ruling dated
January 18, 2025 and DENIES Defendant’s motion for summary judgment on
enterprise coverage for Plaintiffs’ FLSA claims (except as to the FLSA claims for
years 2020 and 2021). 	The Court has also considered Defendants’ arguments that
the Court should not exercise supplemental jurisdiction over Plaintiffs’ state law
claims, but finds them unpersuasive.
DISCUSSION
In supplemental briefing following the Court’s conditional ruling, Defendants
argue that the Court should grant summary judgment on Plaintiffs’ retaliation claims
under the FLSA and NYLL and on Plaintiff Hisami Abe’s 2022 FLSA minimum wage
claim. 	Further Briefing of Sum. Judg., ECF No. 74 at 1.1 	Neither argument is
persuasive.
1. 	Retaliation
Defendants’ arguments for summary judgment on Plaintiffs’ retaliation claims
largely retrace those already asserted, without success, at the premotion conference.
1 The Court refers to the page numbers assigned by the Electronic Case Filing
System (“ECF”).
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See PMC Letter, ECF No. 68. 	To the extent that Defendants ask the Court to take
judicial notice of the New York Department of Labor determination that Plaintiff
Hisami Abe left her employment voluntarily, the Court may not take judicial notice
of the Department of Labor determination “for the truth of the matters asserted”
therein. Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d
Cir. 1992). Accordingly, the Court declines to disturb its earlier conditional denial of
summary judgment on Plaintiffs’ retaliation claims. 	As previously indicated in the
Court’s conditional ruling, the Court finds that whether Plaintiff Hisami Abe was
constructively discharged or resigned from her employment is a disputed issue of fact
for the jury to resolve, and Defendants are not entitled to summary judgment.
2. 	Hisami Abe’s 2022 FLSA Minimum Wage Claim
Defendants present two new arguments for summary judgment on Plaintiff
Hisami Abe’s 2022 FLSA minimum wage claim: that Hisami Abe’s affidavit is a so-
called “sham affidavit,” and that it is inadmissible hearsay. Further Briefing of Sum.
Judg., ECF No. 74 at 3; Def. Letter Response, ECF No. 83 at 2–3.
The Second Circuit’s sham affidavit rule holds that “a party may not create an
issue of fact by submitting an affidavit in opposition to a summary judgment motion
that, by omission or addition, contradicts the affiant’s previous deposition testimony.”
Kennedy v. City of New York, 570 F. App’x 83, 84 (2d Cir. 2014) (finding plaintiff’s
post-discovery affidavit that he did not run a red light did not create genuine issue of
material fact following deposition testimony that he could not recall whether he ran
a red light) (citations omitted). 	The sham affidavit rule applies only when the
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deposition and affidavit are “actually contradictory,” and “it does not apply where the
later sworn assertion addresses an issue that was not, or was not thoroughly or
clearly, explored in the deposition.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43
(2d Cir. 2000). Accordingly, a “district court should not disregard the post-deposition
testimony because of an earlier account that was ambiguous, confusing, or simply
incomplete.” 	Id. (citation modified); see also Moll v. Telesector Res. Grp., Inc., 760
F.3d 198, 206 (2d Cir. 2014) (finding error for district court to refuse to consider
subsequent declaration). 	“[M]ere tensions or inconsistencies go to credibility, not
admissibility, and credibility determinations are not proper at summary judgment.”
Fed. Deposit Ins. Corp. v. Murex LLC, 500 F. Supp. 3d 76, 95 (S.D.N.Y. 2020); see also
id. 	at 	96 	(considering 	affidavits 	except 	to 	the 	extent 	that 	they 	“squarely
contradict[ed]” deposition testimony).
The inconsistencies that Defendants identify between Hisami Abe’s deposition
testimony and her affidavit do not constitute “actual[] contradict[ion],” as required by
the sham affidavit rule. 	Corio, 232 F.3d at 43. 	Accordingly, they go to weight, not
admissibility, and are not grounds for summary judgment.
Moreover, as Plaintiff Hisami Abe is now deceased, her affidavit falls within
the residual exception to the hearsay rule. Fed. R. Evid. 807; see Lopez v. Miller, 915
F. Supp. 2d 373, 425 (E.D.N.Y. 2013) (admitting affidavits of deceased declarants
under Rule 807 and noting they were prepared under oath at a time when plaintiffs
“presumably expected to be subject to cross-examination”); Disabled in Action v. City
of New York, 437 F. Supp. 3d 298, 308 n.11 (S.D.N.Y. 2020) (finding affidavits of
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deceased declarants “as trustworthy as the other declarations submitted with this
motion that Defendants do not challenge”).
Defendants’ other arguments are unpersuasive. 	As noted at the premotion
conference, there are genuine disputes of material fact concerning whether Plaintiff
Hisami Abe was actually paid for all the hours she worked, allowed to keep all her
tips, and given the notice required for Defendants to claim the tipped wage. 	The
Court therefore declines to disturb its earlier conditional ruling and finds that
Defendants are not entitled to summary judgment on Plaintiff Hisami Abe’s 2022
FLSA minimum wage claim.
3. 	Enterprise Coverage
First, the parties agree that Defendants did not meet the enterprise coverage
threshold of $500,000 in 2020 or 2021. See Supp. Letter, ECF No. 77; Pl. Supp. Br.,
ECF No. 80. Summary judgment is therefore appropriate on the issue of enterprise
coverage for those years. See Alvarez v. Fine Craftsman Grp., LLC, No. 20 CIV 10452
(GBD) (JW), 2023 WL 2424145, at *3 (S.D.N.Y. Mar. 9, 2023) (finding employer
subject to enterprise coverage only for those years in which it met the enterprise
coverage threshold); Boekemeier v. Fourth Universalist Soc’y, 86 F. Supp. 2d 280, 286
(S.D.N.Y. 2000) (“Enterprise coverage will apply, however, only to the extent the
business done by the relevant enterprise exceeds $500,000 for any of these years.”).
Second, Defendants argue that summary judgment should be granted against
Plaintiffs on their 2019 FLSA claims because Defendant Yamaguchi & Friends, Inc.
did not meet the enterprise coverage threshold that year. Supp. Letter, ECF No. 77
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at 1–2. Defendants have produced no sales records for 2019, and rely instead on tax
returns showing that Yamaguchi & Friends, Inc. had gross receipts of $499,874.85.
Id.; ECF No. 68-9. 	In the following year, however, the restaurant’s reported sales
were significantly greater than the reported receipts on their tax return. 	Pl. Supp.
Br., ECF 80 at 2. 	Especially here, where the restaurant filed a tax return that
claimed gross receipts amounting to just $125.15 below the enterprise coverage
threshold, that discrepancy is sufficient to bar summary judgment, in that there
remains a triable issue of fact as to whether the 2019 tax return in fact reflected
Defendant Yamaguchi & Friends, Inc.’s gross sales. Cf. Yu Wei Cao v. Miyama, Inc.,
No. 15-CV-0266 (JS) (ARL), 2019 WL 4279407, at *9 (E.D.N.Y. Sept. 10, 2019)
(extrapolating from tax returns to find enterprise coverage was satisfied).
4. 	Supplemental Jurisdiction
Finally, Defendants urge the Court not to exercise supplemental jurisdiction
over Plaintiffs’ NYLL claims — with the exception of the NYLL retaliation claims —
even if the Court retains jurisdiction over Plaintiff Hisami Abe’s 2019 and 2022 FLSA
minimum wage claims. 	Further Briefing of Sum. Judg., ECF No. 74 at 4; Supp.
Letter, ECF No. 77 at 2.
Defendants’ attempt to characterize this case as presenting novel and complex
issues of state law is unpersuasive. 	The first issue Defendants identify — whether
the alleged cash guarantee counts towards the NYLL minimum wage — has not been
raised by Plaintiffs. Supp. Letter, ECF No. 77 at 3–4. The second — whether the tip
credit is available despite written notice under the NYLL — would only arise if
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Defendants demonstrated compliance with all other minimum wage requirements,
which Plaintiffs contest. Id. at 4.
Moreover, because this case has been pending for over three years, during
which time the Court has supervised discovery and decided several substantive
motions, the interests of judicial economy, convenience, and fairness are strongly
served by the Court’s continued jurisdiction. 	United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726 (1966); see also Feng v. Kelai Corp., 727 F. Supp. 3d 423, 444
(S.D.N.Y. 2024) (retaining jurisdiction over NYLL claims). 	Accordingly, the Court
continues its supplemental jurisdiction over the NYLL claims.
CONCLUSION
Defendants’ motion for summary judgment as to enterprise coverage for
Plaintiffs’ 2020 and 2021 FLSA claims is GRANTED. 	Defendants’ motion for
summary judgment is DENIED in all other respects.
SO ORDERED.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: 	November 20, 2025
Brooklyn, New York
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