By notice of motion dated July 24, 2012, defendants move pursuant to CPLR 3212 for an order granting them summary judgment dismissing this action. Plaintiffs oppose.

In their complaint, plaintiffs allege three causes of action. In their first cause of action, they allege a violation of New York Labor Law §§ 650, et seq., in that defendants withheld from plaintiff Erich Mancero overtime wages of not less than one and one-half times his regular rate for hours worked in excess of 40 hours a week. In their third cause of action, they allege that Erich was constructively terminated from his employment as a superintendent of the 42-unit cooperative residential building located at 242 East 38th Street. (NYSCEF 31). By stipulation dated August 21, 2012, plaintiffs withdrew their second cause of action. (NYSCEF 51).

Defendants rely on section 141-1.4 of the Minimum Wage Order for the Building Services Industry, effective January 1, 2005, for the proposition that plaintiff, a superintendent in a residential building, is not entitled to overtime pay. (NYSCEF 31). That regulation provides as [*2]follows:

An employer shall pay an employee, except a janitor in a residential building, for overtime at a wage rate of 1 ½ times the employee's regular rate for hours worked in excess of 40 hours in a workweek.

In opposition, plaintiffs maintain that the regulation does not prohibit overtime pay, just overtime pay at 1 ½ times the regular rate, relying on Edwards v Jet Blue, 21 Misc 3d 1107(A) (Sup Ct, Kings County 2008). (NYSECF 43). Edwards, however, is inapposite, and plaintiffs' argument is, in any event, not persuasive. (See Niemiec v Ann Bendick Realty, 2007 WL 5157027, n 6 [ED NY 2008] ["the NYLL implementing regulations do not provide for either minimum wages or overtime wages for janitors' . . ."]). Defendants also observe, without dispute and dispositively, that plaintiffs lived in the building rent-free, that the cooperative paid for his utilities, and that plaintiffs have no records establishing their claim to overtime. Consequently, there is no issue of fact requiring a trial of this cause of action.

Defendants argue that plaintiffs are barred or estopped by an adverse determination of the New York State Division of Human Rights from pleading constructive termination. They rely on the following finding:

Furthermore, the record suggests that, prior to his resignation, [defendants] perceived that [Erich] had work performance problems and counseled him regarding these issues. He had accepted another job prior to submitting his resignation to respondent, and there is insufficient evidence to support a claim of constructive discharge.

Having had a sufficient opportunity to litigate their claim of constructive termination at the Division of Human Rights, and having failed to appeal that determination, plaintiffs are barred and estopped from advancing the claim here. In any event, as Erich was an at-will employee of the cooperative's board, plaintiffs have no viable cause of action for constructive termination. Thus, there is no material issue of fact requiring a trial of this claim.

Accordingly, it is hereby

ORDERED, that defendants' motion for summary judgment dismissing the complaint is granted and the complaint is dismissed; and it is further

ORDERED, that the Clerk is directed to enter judgment accordingly.

ENTER:

Barbara Jaffe, JSC

DATED:July 12, 2013

New York, New York