SARAH L. CAVE, United States Magistrate Judge.

REPORT AND RECOMMENDATION

SARAH L. CAVE, United States Magistrate Judge.

TO THE HONORABLE JOHN G. KOELTL, United States District Judge:

I. INTRODUCTION

In this putative collective action filed under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., New York Labor Law (“NYLL”) § 650 et seq., and New York's Wage Theft Prevention Act, NYLL § 195 (“WTPA”), Plaintiff Jose Luis Aurelio Pinzon (“Pinzon”) seeks payment of unpaid minimum and overtime wages and related relief from Defendant 467 Star Deli Inc. (d/b/a Star Deli) (the “Deli”), Sultan M. Almuntaser (“Almuntaser”), and Khalil A. Aldarwish (“Aldarwish,” with the Deli and Almuntaser, “Defendants”). (ECF No. 1 (“the Complaint”)). Pinzon alleges that, between December 2020 and June 2022, Defendants employed him as a deli worker, cashier, stocker, and cleaner, and failed to pay him proper minimum and overtime wages and provide wage notices or statements required by law. (Id. ¶¶ 4-9, 14, 30, 32-33, 45-49).

After Defendants failed to appear and defend in this action, the Honorable John G. Koeltl ordered that default judgment be entered in Pinzon's favor against Defendants (ECF No. 34 (the “Default Order”) and referred the matter for an inquest on damages. (ECF No. 35). Based on Pinzon's unopposed damages submission (ECF Nos. 40 - 40-5 (the “Damages Submission”)), I respectfully recommend that Pinzon be awarded: (1) damages in the amount of $17,147.00, comprised of $1,880.00 in unpaid minimum wages and $15,267.00 in unpaid overtime wages; (2) $17,147.00 in liquidated damages; (3) prejudgment interest on Pinzon's damages for unpaid minimum and overtime wages (i.e., $17,147.00) at a rate of nine percent per annum from the period of September 22, 2021 to the date of entry of judgment; (4) post-judgment interest pursuant to 28 U.S.C. § 1961; and (5) attorneys' fees and costs in the amount of $6,906.00. In addition, I respectfully recommend that, due to lack of standing, no statutory damages be awarded under the WTPA.

II. BACKGROUND

A. Factual Background

Unless otherwise indicated, the facts are taken from the Complaint and the Damages Submission, including the declaration Pinzon submitted attesting to his hours worked and other facts concerning his employment with Defendants (the “Declaration”) (ECF Nos. 54-1 - 54-8). Given Defendants' default, the Court accepts as true all well-pleaded factual allegations in the Complaint, except as to damages. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Whitehead v. Mix Unit, LLC, No. 17 Civ. 9476 (VSB) (JLC), 2019 WL 384446, at *1 (S.D.N.Y. Jan. 31, 2019).

Defendants own, operate, and control the Deli, which is located at 467 West 125th Street in Manhattan. (ECF Nos. 1 ¶ 16; 40-1 ¶ 3). Almuntaser and Aldarwish possess operation control over the Deli. (ECF Nos. 1 ¶ 21; 40-1 ¶ 3). Defendants are joint employers who possessed substantial control over Pinzon's working conditions and the employment policies and practices at the Deli. (ECF Nos. 1 ¶¶ 22-23; 40-1 ¶ 6). In each of the years 2020 through 2022, Defendants had a gross annual volume of sales greater than $500,000.00. (ECF No. 1 ¶ 28). The Deli sold and used items that had been produced outside of the State of New York. (Id. ¶ 29).

Pinzon worked at the Deli from December 21, 2020 until June 25, 2022 as a deli worker, cashier, and general worker who stocked merchandise and cleaned. (ECF Nos. 1 ¶¶ 30, 32-33; 40-1 ¶¶ 8-9). Throughout his employment, Pinzon regularly worked more than 40 hours per week. (ECF No. 1 ¶ 36). From December 21, 2020 until October 2021, he worked seven days per week in ten-hour shifts, from either 4:00 p.m. until 2:00 a.m. or 2:00 p.m. until 12:00 a.m., for a total of 70 hours per week. (Id. ¶ 37; ECF No. 40-1 ¶ 14). From November 2021 until May 31, 2022, Pinzon worked seven days per week in nine-hour shifts, from either 5:00 p.m. until 2:00 a.m. or 3:00 p.m. until 12:00 a.m., for a total of 63 hours per week. (ECF Nos. 1 ¶ 38; 40-1 ¶ 15). From June 1, 2022 until June 25, 2022, he worked six days per week from 6:00 a.m. until 2:00 p.m., typically 48 hours per week. (ECF Nos. 1 ¶ 39; 40-1 ¶ 16). Defendants did not require Pinzon to record his time nor did they use a time tracking device. (ECF Nos. 1 ¶ 46; 40-1 ¶ 25).

Defendants paid Pinzon his wages in cash. (ECF Nos. 1 ¶¶ 40, 54; 40-1 ¶ 17). Defendants paid him $13.00 per hour from December 21, 2020 until April 2021, $14.00 per hour from May 2021 until July 2021, $15.00 per hour from July 2021 until May 2022, and $16.00 per hour from June 1, 2022 until June 25, 2022. (ECF Nos. 1 ¶¶ 41-44; 40-1 ¶ 18-21). Defendants did not afford Pinzon breaks or meal periods. (ECF Nos. 1 ¶ 45; 40-1 ¶ 24). Despite requiring him to work more than 40 hours per week, Defendants did not pay Pinzon appropriate overtime pay. (ECF Nos. 1 ¶ 5; 40-1 ¶¶ 22-23).

Defendants did not post or distribute to Pinzon notices regarding overtime and wages under the FLSA and NYLL, nor did they give him accurate wage statements or notices of his rate of pay and regular pay day. (ECF Nos. 1 ¶¶ 47-49, 55, 59-60; 40-1 ¶¶ 26-27).

B. Procedural Background

On August 11, 2022, Pinzon filed the Complaint. (ECF No. 1). Pinzon asserts that Defendants failed to pay him minimum and overtime wages in violation of the FLSA and NYLL (First through Fourth Causes of Action), and failed to give him wage notices and statements in violation of the WTPA (Fifth and Sixth Causes of Action). (Id. ¶¶ 64-89).

Pinzon served the Summons and Complaint on the Deli on August 22, 2022 and on Almuntaser and Aldarwish on August 24, 2022. (ECF Nos. 10-12). The deadline for the Deli to answer, move, or otherwise respond to the Complaint was September 12, 2022, and for Almuntaser and Aldarwish, September 14, 2022. (ECF Nos. 10-12). On September 28, 2022, after Defendants failed to respond to the Complaint, Judge Koeltl permitted Pinzon to move by order to show cause for entry of default judgment. (ECF Nos. 13-14). On October 4, 2022, the Clerk of the Court entered certificates of default as to the Defendants. (ECF Nos. 22-24).

On October 14, 2022, Pinzon filed a proposed order to show cause and supporting documents. (ECF Nos. 25; 27; 29). On October 17, 2022, Judge Koeltl ordered Defendants to show cause by October 31, 2022 why a default judgment should not be entered. (ECF No. 28 (the “OTSC”)). Pinzon served the OTSC on Defendants the same day, but Defendants did not respond. (ECF Nos. 31; 34). Accordingly, on November 9, 2022, Judge Koeltl entered the Default Order finding that Pinzon is entitled to a default judgment against Defendants and referred the action for a damages inquest. (ECF Nos. 34; 35).

On November 16, 2022, the Court ordered Pinzon to file the Damages Submission by December 9, 2022, and Defendants to respond by December 23, 2022. (ECF No. 36 (the “Scheduling Order”)). The Court warned Defendants that if they failed to respond to the Damages Submission or otherwise contact the Court to request an in-court hearing, the inquest would be decided on Pinzon's submission alone without a hearing. (Id. ¶ 21) Pinzon promptly served the Scheduling Order on Defendants. (ECF Nos. 37; 38). On December 8, 2022, Pinzon filed, and served on Defendants, the Damages Submission. (ECF Nos. 40 - 40-5; 42). To date, Defendants have not responded to the Complaint or Damages Submission or contacted the Court to request an in-person hearing.

III. DISCUSSION

A. Legal Standards

1. Obtaining a Default Judgment

A party seeking a default judgment must follow the two-step procedure set forth in Federal Rule of Civil Procedure 55. See Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 186-87 (2d Cir. 2015); Fed.R.Civ.P. 55. First, under Rule 55(a), where a party has failed to plead or otherwise defend in an action, the Clerk of the Court must enter a certificate of default. See Fed.R.Civ.P. 55(a). Second, after entry of the default, if the party still fails to appear or move to set aside the default, the Court may enter a default judgment. See Fed.R.Civ.P. 55(b). Whether to enter a default judgment lies in the “sound discretion” of the trial court. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Because a default judgment is an “extreme sanction” that courts are to use as a tool of last resort, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981), the district court must “carefully balance the concern of expeditiously adjudicating cases, on the one hand, against the responsibility of giving litigants a chance to be heard, on the other.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 29 (E.D.N.Y. Mar. 19, 2015) (citing Enron, 10 F.3d at 96).

In considering whether to enter a default judgment, district courts are “guided by the same factors [that] apply to a motion to set aside entry of a default.” First Mercury Ins. Co. v. Schnabel Roofing of Long Is., Inc., No. 10 Civ. 4398 (JS) (AKT), 2011 WL 883757, at *1 (E.D.N.Y. Mar. 11, 2011). “These factors include: (1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense.” J & J Sports Prods. Inc. v. 1400 Forest Ave. Rest. Corp., No. 13 Civ. 4299 (FB) (VMS), 2014 WL 4467774, at *4 (E.D.N.Y. Sept. 10, 2014) (citing Swarna v. Al-Awadi, 622 F.3d 123, 142 (2d Cir. 2010)); see Enron, 10 F.3d at 96 (noting that “[a]lthough the factors examined in deciding whether to set aside a default or a default judgment are the same, courts apply the factors more rigorously in the case of a default judgment because the concepts of finality and litigation repose are more deeply implicated in the latter action”).

2. Determining Liability

A defendant's default is deemed “a concession of all well-pleaded allegations of liability,” Rovio Entm't, Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 545 (S.D.N.Y. 2015), but a default “only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants.” Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015). The Court must determine “whether the allegations in [the] complaint establish the defendants' liability as a matter of law.” Id. If the Court finds that the well-pleaded allegations establish liability, the Court then analyzes “whether plaintiff has provided adequate support for [his requested] relief.” Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008). If, however, the Court finds that the complaint fails to state a claim on which relief may be granted, the Court may not award damages, “even if the post-default inquest submissions supply the missing information.” Perez v. 50 Food Corp., No. 17 Civ. 7837 (AT) (BCM), 2019 WL 7403983, at *4 (S.D.N.Y. Dec. 4, 2019), adopted by, 2020 WL 30344 (S.D.N.Y. Jan. 2, 2020).

3. Determining Damages

Once liability has been established, the Court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15 Civ. 5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016), adopted by, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). A plaintiff “bears the burden of establishing [its] entitlement to recovery and thus must substantiate [its] claim with evidence to prove the extent of damages.” Dunn v. Advanced Credit Recovery Inc., No. 11 Civ. 4023 (PAE) (JLC), 2012 WL 676350, at *2 (S.D.N.Y. Mar. 1, 2012). The evidence the plaintiff submits must be admissible. See Poulos v. City of New York, No. 14 Civ. 3023 (LTS) (BCM), 2018 WL 3750508, at *2 (S.D.N.Y. July 13, 2018), adopted by, 2018 WL 3745661 (S.D.N.Y. Aug. 6, 2018); see also House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order) (“[D]amages must be based on admissible evidence.”). If the documents the plaintiff has submitted provide a “sufficient basis from which to evaluate the fairness of” the requested damages, the Court need not conduct an evidentiary hearing. Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989); see Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (noting that a court may determine appropriate damages based on affidavits and documentary evidence “as long as [the court has] ensured that there [is] a basis for the damages specified in the default judgment”).

With respect to claims for unpaid wages, when the employer's payroll records are inaccurate or incomplete, “an employee has carried out his [or her] burden if he [or she] proves” enough for the court to make an “inference” that he or she “has in fact performed work for which he was improperly compensated and if he [or she] produces sufficient evidence to show the amount and extent of that work[.]” Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). The Court may credit a plaintiff's “recollections regarding [her] hours and pay in conducting [the] inquest.” Coley v. Vannguard Urban Improvement Ass'n, Inc., No. 12 Civ. 5565 (PKC) (RER), 2018 WL 1513628, at *7 (E.D.N.Y. Mar. 27, 2018), as amended, (Mar. 29, 2018). The Court “must ensure that [his] approximations and estimates are reasonable and appropriate.” Id. Ultimately, the default judgment the Court enters “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c); see Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (limiting damages to those specified in demand in complaint “ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount, and then default without the need to hire a lawyer”); Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16 Civ. 1318 (GBD) (BCM), 2018 WL 4760345, at *1 (S.D.N.Y. Sept. 28, 2018) (holding that plaintiff could not recover damages for unalleged claims against defaulted defendant).

B. Default Judgment

In accordance with the two-step process in Rule 55, the Clerk of the Court entered certificates of default as to all Defendants (ECF Nos. 22-24), and Judge Koeltl entered the Default Order. (ECF No. 34). Furthermore, an analysis of the relevant factors set forth above reveals first that the Court can infer, from Defendants' failure to submit any written reply to Pinzon's Damages Submission, after having been properly served, that their default was willful. See Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865 (LTS) (GWG), 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (finding that a failure to respond to a complaint and subsequent motion for default judgment “indicate[s] willful conduct”). Second, delaying entry of a default judgment might prejudice Pinzon. See Inga v. Nesama Food Corp., No. 20 Civ. 909 (ALC) (SLC), 2021 WL 3624666, at *6 (S.D.N.Y. July 30, 2021) (finding that FLSA plaintiff would “be prejudiced in the absence of a default judgment, not only by the delay in resolving this action, but by his inability to recover from another source for the lost wages and other losses he sustained while working for Defendants”), adopted by, 2021 WL 3617191 (S.D.N.Y. Aug. 16, 2021). Third, Defendants have failed to respond to the Court's orders to appear and defend in this action. Thus, because the requirements of Rule 55 are satisfied and the relevant factors weigh in Pinzon's favor, the Court finds that entry of default judgment is proper in this case.

C. Liability

1. Jurisdiction and Venue

As a threshold matter, because Pinzon sues in part under a federal statute-the FLSA- the Court has subject matter jurisdiction under 28 U.S.C. § 1331. The Court may exercise supplemental jurisdiction over Pinzon's New York law claims because they arise out of the same facts and circumstances as his FLSA claim.

The Court also has personal jurisdiction over Defendants. Personal jurisdiction is “a necessary prerequisite to entry of a default judgment.” Reilly v. Plot Commerce, No. 15 Civ. 5118 (PAE) (BCM), 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016), adopted by, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). The Court has personal jurisdiction over the Deli, which is a New York corporation located in this District, as well as Almuntaser and Aldarwish, who own and operate the Deli. (ECF No. 1 ¶¶ 2, 16-19). Pinzon also properly served each Defendant. (ECF Nos. 10-12).

Venue is proper because the Deli is a New York corporation that operates in this District, and because the events and omissions giving rise to Pinzon's claims occurred in this District. (ECF Nos. 1 ¶¶ 2, 4, 13, 14, 16-17; 40-1 ¶¶ 2, 5, 8). See 28 U.S.C. §§ 1391(b)(1)-(2).

2. Statute of Limitations

Under the NYLL, the statute of limitations is six years. See NYLL § 198(3). Under the FLSA, the statute of limitations is two years, or, if the violations were “willful,” three years. See 29 U.S.C. § 255(a); see also McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988). An FLSA violation is willful if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited.” McLaughlin, 486 U.S. at 133. Although plaintiffs may not recover under both the FLSA and the NYLL for the same injury, courts allow plaintiffs to recover under the statute that provides for the greatest relief. Ni v. Bat-Yam Food Servs. Inc., No. 13 Civ. 7274 (ALC) (JCF), 2016 WL 369681, at *1 (S.D.N.Y. Jan. 27, 2016).

Here, Pinzon worked at the Deli from December 21, 2020 until June 25, 2022, and filed the Complaint on August 11, 2022. (ECF Nos. 1 ¶¶ 14, 32, 37-44; 40-1 ¶ 8). Thus, his employment period is entirely within both the NYLL's six-year statute of limitations, as well as the shorter FLSA two- and three-year statutes of limitations.Because the NYLL provides for equal relief relative to the FLSA, I respectfully recommend awarding Pinzon damages under the NYLL. See Suriel v. Cruz, No. 20 Civ. 8442 (VSB) (SLC), 2022 WL 1750232, at *9 (S.D.N.Y. Jan. 10, 2022), adopted by, 2022 WL 1751163 (May 31, 2022); Schalaudek v. Chateau 20th St. LLC, No. 16 Civ. 11 (WHP) (JLC), 2017 WL 729544, at * 5 (S.D.N.Y. Feb. 24, 2017).

3. FLSA and NYLL Elements

To state a claim for unpaid wages under the FLSA, a plaintiff must allege that: (1) he was the defendant's employee; (2) his work involved interstate activity; and (3) he worked for hours for which he did not receive minimum or overtime wages. See Tackie v. Keff Enter., Inc., No. 14 Civ. 2074 (JPO), 2014 WL 4626229, at *2 (S.D.N.Y. Sept. 16, 2014). A wage-and-hour claim under the NYLL involves a similar analysis, “except that the NYLL does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales.” Id. at *2 n.2. To recover overtime compensation, a plaintiff “must allege sufficient factual matter to state a plausible claim that [he] worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013).

a. The Employment Relationship

Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Courts afford the term employer “an expansive definition with ‘striking breadth.'” Mondragon v. Keff, No. 15 Civ. 2529 (JPO) (BCM), 2019 WL 2551536, at *7 (S.D.N.Y. May 31, 2019), adopted by, 2019 WL 2544666 (S.D.N.Y. June 20, 2019) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)). Under the FLSA, “[a]n individual may have multiple ‘employers,'” such that “‘all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA].'” Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 421 (S.D.N.Y. 2017) (quoting 29 C.F.R. § 791.2(a)).

To determine whether the Defendants were Pinzon's “employer” for FLSA purposes, the Court must examine the “economic reality” of the working relationship. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). Courts in the Second Circuit consider four non-exclusive factors to assess the “economic reality” of an alleged employment relationship, including “whether the alleged employer (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.” Id. at 105 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)). This “inquiry is a totality-of-the-circumstances approach, so no one factor is dispositive[.]” Tackie, 2014 WL 4626229, at *2.

Under the NYLL, the definition of “employer” is also broad, see NYLL § 190(3),“and the crucial inquiry, in determining whether an employer-employee relationship exists, is the ‘degree of control exercised by the purported employer over the results produced or the means used to achieve the results.'” Mondragon, 2019 WL 2551536, at *7 (quoting Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013)). In the absence of a decision from the New York Court of Appeals answering “the question whether the test for ‘employer' status is the same under the FLSA and the NYLL,” Camara v. Kenner, No. 16 Civ. 7078 (JGK), 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018), “[t]here is general support for giving FLSA and the [NYLL] consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa).” Hart, 967 F.Supp.2d at 924. “Accordingly, courts in this District regularly apply the same tests to determine whether entities were joint employers under NYLL and the FLSA.” Martin, 273 F.Supp.3d at 422.

Pinzon alleges that Defendants employed him as a deli worker, cashier, and general worker in the Deli. (ECF Nos. 1 ¶¶ 30, 33; 40-1 ¶¶ 3-5, 9). He claims that Almuntaser and Aldarwish own and operate the Deli, determine the wages and compensation of its employees, including Pinzon, establish employee schedules, maintain payroll records, and have the authority to hire and fire employees. (ECF Nos. 1 ¶¶ 18-26; 40-1 ¶¶ 3-7). Pinzon alleges that Defendants were therefore jointly his employers within the meaning of the FLSA and NYLL. (ECF Nos. 1 ¶ 24; 40-1 ¶ 4). Pinzon has therefore adequately alleged employer-employee relationships with Defendants. Perez, 2019 WL 7403982, at *6.

By their default, Defendants have admitted their status as Pinzon's employers. See Suriel, 2022 WL 1750232, at *11; Rovio Entm't, 97 F.Supp.3d at 545. As a result, Defendants are jointly and severally liable under the FLSA and NYLL for any damages award. See Fermin, 93 F.Supp.3d at 37 (imposing joint and several liability on defaulting corporate and individual defendants); Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 685 (S.D.N.Y. 2011) (imposing joint and several liability on defaulting corporate and individual defendants where allegations that individual defendant “was an owner, partner, or manager,” along with his default, established him as employer under the FLSA and the NYLL).

b. Interstate Commerce

Under the FLSA, Plaintiffs must establish that they or their employer were engaged in interstate commerce. See Ethelberth v. Choice Sec. Co., 91 F.Supp.3d 339, 353 (E.D.N.Y. 2015) (“Engagement in interstate commerce, either by an employee or by the employer as a whole, is a prerequisite for liability for the FLSA's overtime requirement.”); 29 U.S.C. § 207(a)(1) (stating that employees “engaged in commerce or in the production of goods for commerce” are entitled to overtime compensation at “one and one-half times the regular rate at which [they are] employed”); 29 U.S.C. § 203(s)(1)(A) (defining “[e]nterprise engaged in commerce”).

Pinzon has plausibly alleged that Defendants engaged in interstate commerce. He alleges that “numerous items that were used in the Deli on a daily basis are goods produced outside of the State of New York. (ECF No. 1 ¶ 29; see ECF No. 40-1 ¶ 11). Pinzon also alleges that, between 2020 and 2022, Defendants “had a gross annual volume of sales of not less than $500,000[.]” (ECF No. 1 ¶ 28; see ECF No. 40-1 ¶ 12). “[L]ocal business activities fall within the reach of the FLSA when an enterprise employs workers who handle goods or materials that have moved or been produced in interstate commerce.” Cabrera v. Canela, 412 F.Supp.3d 167, 173 (E.D.N.Y. 2019) (quoting Archie v. Grand Cent. P'ship, Inc., 997 F.Supp. 504, 530 (S.D.N.Y. 1998)); see Gora v. Acer Restorations LLC, No. 13 Civ. 4776 (JBW), 2014 WL 10537433, at *3 (E.D.N.Y. Oct. 8, 2014) (finding allegations that New York-based construction company with employees who handle, sell or otherwise work on goods or materials that have been moved in or produced for interstate commerce and with annual profits exceeding $500,000 were “sufficient to establish that the defendants were engaged in interstate commerce and thus are subject to liability under the FLSA”). Accordingly, Pinzon's allegations meet the threshold for enterprise liability under the FLSA, see 29 U.S.C. § 203(s)(1)(A), such that he has satisfied the interstate commerce element for FLSA liability. See Mondragon, 2019 WL 2251536, at *9.

c. Unpaid Minimum Wages

The FLSA and NYLL require an employer to pay at least the statutory minimum wage for each hour an employee works in a work week (“Straight Time Wages”). See 29 U.S.C. § 206(a); 12 N.Y.C.R.R. § 146-1.1(a). The FLSA requires employers to pay employees at least the federal minimum wage for every hour worked, see 29 U.S.C. § 206, or the state minimum wage, if it is greater. See 29 U.S.C. § 218(a). “[I]n the absence of a rebuttal by defendants, plaintiffs' recollection and estimates of hours worked are presumed to be correct.” Liu v. Jen Chu Fashion Corp., No. 00 Civ. 4221 (RJH) (AJP), 2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004).

Under both the FLSA and NYLL, “all of the time worked during a continuous workday is compensable, save for bona fide meal breaks.” Hart v. Rick's Cabaret Int'l Inc., 60 F.Supp.3d 447, 475 n.15 (S.D.N.Y. 2014) (“Hart II”) (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005)). A meal break is “bona fide” when the employee is “completely relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19(a); see Cazares v. 2898 Bagel & Bakery Corp., No. 18 Civ. 5953 (AJN) (DF), 2022 WL 1410677, at *19 n.12 (S.D.N.Y. Apr. 7, 2022), adopted by, 2022 WL 1406203 (S.D.N.Y. May 4, 2022). Where the plaintiff “asserts that he did not receive any meal or rest breaks[,] . . . all of [his] time worked [will be] compensable.” Villanueva v. 179 Third Ave. Rest. Inc., 500 F.Supp.3d 219, 235 (S.D.N.Y. 2020), adopted by, No. 16 Civ. 8782 (AJN) (RWL), 2021 WL 2139441 (S.D.N.Y. May 26, 2021).

The NYLL requires certain employers to provide: (i) a meal period of at least thirty minutes for employees who work a shift of more than six hours over the period encompassing 11:00 a.m. to 2:00 p.m., within that period; (2ii) an additional 20-minute period between 5:00 p.m. and 7:00 p.m. for employees whose shift started before 11:00 a.m. and continued later than 7:00 p.m.; and/or (iii) a 45-minute meal period at a time midway between the beginning and end of the shift for employees whose shift lasts more than six (6) hours and starts between 1:00 p.m. and 6:00 a.m. See NYLL § 162(2)-(4); see also Victor v. Sam's Deli Grocery Corp., No. 19 Civ. 2965 (SLC), 2022 WL 3656312, at *9 (S.D.N.Y. Aug. 25, 2022) (citing NYLL § 162(2)-(4)).

As an initial matter, Pinzon alleges that Defendants never granted him “any breaks or meal periods of any kind.” (ECF No. 1 ¶ 45; see ECF No. 40-1 ¶ 24). Thus, “all of [his] time worked [will be] compensable.” Villanueva, 500 F.Supp.3d at 235; accord Victor, 2022 WL 3656312, at *9.

Employers may compensate tipped employees at a lower hourly rate by crediting a portion of their tips against the minimum wage. See 29 U.S.C. § 203(m)(2)(A)-(B); 12 N.Y.C.R.R. § 146-1.3(b); Andrade v. First Ave. Rest. Ltd., No. 14 Civ. 8268 (JPO) (AJP), 2016 WL 3141567, at *4 (S.D.N.Y. June 3, 2016), adopted by, 2016 WL 3948101 (S.D.N.Y. July 19, 2016); see also Zhang v. Hiro Sushi at Ollies, Inc., No. 17 Civ. 7066 (JPC), 2022 WL 2668263, at *8 (S.D.N.Y. July 11, 2022). “To be eligible to take a tip credit, however, the employer must satisfy certain prerequisites.” Kim v. Kum Gang, Inc., No. 12 Civ. 6344 (MHD), 2015 WL 2222438, at *23 (S.D.N.Y. Mar. 19, 2015). These prerequisites include the requirement that the employer notify the employee, before the employment begins, “of its intention to include tip income when calculating wages actually paid for minimum wages purposes.” Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08 Civ. 3725 (DC), 2010 WL 4159391, at *2 (S.D.N.Y. Sept. 30, 2010). The employer bears the burden of proving that this notice was given. See Reyes v. Cafe Cousina Rest. Inc., No. 18 Civ. 1873 (PAE) (DF), 2019 WL 5722475, at *5 (S.D.N.Y. Aug. 27, 2019).

The NYLL also allows an employer to pay tipped food service workers a lower minimum wage under certain conditions. See NYLL § 652(4). “An employer may receive the benefit of this tip credit only if the employer provides to each employee a statement with every payment of wages listing allowances claimed as part of the minimum wage and maintains and preserves for not less than six years weekly payroll records which shall show for each employee allowances claimed as part of the minimum wage[.]” Cao, 2010 WL 4159391, at *2 (quoting Padilla v. Manlapaz, 643 F.Supp.2d 302, 309-10 (E.D.N.Y. 2009)) (internal quotation marks and alterations omitted); see 12 N.Y.C.R.R. §§ 146-1.3, 146-2.2. Under both the FLSA and the NYLL, the notice must be sufficient to apprise the employee of the tip credit provision and the fact that the employer intends to take the credit as to the employee's wages. See Cafe Cousina, 2019 WL 5722475, at *5; Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442, 467 (S.D.N.Y. 2015) (finding generic FLSA posters to be insufficient notice).

The Court finds that Defendants do not meet the requirements for taking a tip credit. Pinzon alleges, and Defendants have admitted by their default, that they never notified him that any tips would be included as an offset to his wages. (ECF No. 1 ¶¶ 60, 85). Because Defendants have not met the notice requirements of the FLSA and NYLL, they are therefore not entitled to any tip credit against the minimum wage. See Victor, 2022 WL 2656312, at *10 (denying tip credit); Agureyev v. H.K. Second Ave. Rest. Inc., No. 17 Civ. 7336 (SLC), 2021 WL 847977, at *7 (S.D.N.Y. Mar. 5, 2021); Schalaudek, 2017 WL 729544, at *6-7.

“Because Defendants are not entitled to any tip credit, [they] were required to pay [Pinzon] full minimum wage, rather than the lower minimum wage for tipped workers.” Lopez v. Emerald Staffing Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *9 (S.D.N.Y. Feb. 26, 2020). Pinzon does not state the number of employees who worked for Defendants (see ECF Nos. 1; 401), so the Court applies the lower, small employer minimum wage rate. See Campos Marin v. J&B 693 Corp., No. 19 Civ. 569 (JGK) (KHP), 2022 WL 377974, at *7 (S.D.N.Y. Jan. 21, 2022) (applying lower, small employer rate where plaintiff failed to allege that employer had eleven or more employees); Reyes v. Lincoln Deli Groc. Corp., No. 17 Civ. 2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018) (same). The Court's use of the lower minimum wage impacts its determination whether Defendants are liable for minimum and overtime wage violations, and the calculation of damages, discussed further below.

Although Pinzon's Complaint and Damages Submission broadly contend that Defendants failed to pay him the applicable hourly minimum wage, he does not specify during which periods he was paid less than the minimum wage. (ECF No. 1 ¶¶ 5, 8, 9, 50, 52, 62, 64-70, 75-79; see ECF No. 40-1). Only through the Court's review of his Damages Submission and performance of its own damages calculation is it possible to discern whether Defendants failed to pay Pinzon less than the required minimum wage. Based on the record, the Court finds that Pinzon was only paid less than minimum wage for the period from December 21, 2020 until July 15, 2021, and was in fact paid more than the statutory rate for the final month he worked at the Deli:

d. Unpaid Overtime Wages

Both the FLSA and the NYLL require an employer to pay an overtime rate of one and one-half times the employee's “regular rate” of pay. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2.

To state an overtime claim, a plaintiff “must allege only that [he] worked compensable overtime in a workweek longer than forty hours, and that [he] was not properly compensated for that overtime.” Tackie, 2014 WL 4626229, at *3.

Pinzon alleges that he regularly worked more than 40 hours per week, and that Defendants failed to pay him an overtime rate for the hours worked over 40 hours per week. (ECF Nos. 1 ¶¶ 5, 8, 36-39, 50, 62; 40-1 ¶¶ 13, 23, 28). Thus, Pinzon has adequately stated a claim for unpaid overtime wages. See Suriel, 2022 WL 1750232, at *13 (holding that plaintiff stated claim for overtime wages); Agureyev v. H.K. Second Ave. Rest., Inc., No. 17 Civ. 7336 (SLC), 2021 WL 847977, at *7 (S.D.N.Y. Mar. 5, 2021) (same); Mondragon, 2019 WL 2551536, at *9 (same).

e. Liquidated Damages

Under the FLSA, “a plaintiff who demonstrates that he was improperly denied either minimum or overtime wages may recover, in addition to reimbursement of these unpaid wages, an ‘additional equal amount as liquidated damages.'” Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14 Civ. 10234 (JGK) (JLC), 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016) (quoting 29 U.S.C. § 216(b)), adopted by, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). “[W]here the employer shows that, despite its failure to pay appropriate wages, it acted in subjective ‘good faith' with objectively ‘reasonable grounds' for believing that its acts or omissions did not violate the FLSA,” the Court has the discretion to deny liquidated damages. Barfield, 537 F.3d at 150 (quoting 29 U.S.C. § 260). This burden is “a difficult one,” id. (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)), and where “defendants never made this showing in light of their default, they have not rebutted the presumption in favor of a liquidated damages award.” Guaman v. J & C Top Fashion, Inc., No. 14 Civ. 8143 (GBD) (GWG), 2016 WL 791230, at *7 (S.D.N.Y. Feb. 22, 2016). A plaintiff who “is entitled to liquidated damages under the FLSA, but has been awarded wage and overtime damages pursuant to the NYLL because state law provided the greater relief” is entitled to FLSA liquidated damages “based on ‘the amount of actual damages that would have been awarded had the federal minimum wage rate applied.'” Kernes v. Glob. Structures, LLC, No. 15 Civ. 659 (CM) (DF), 2016 WL 880199, at *4 (S.D.N.Y. Feb. 9, 2016) (quoting Angamarca v. Pita Grill 7 Inc., No. 11 Civ. 7777 (JGK) (JLC), 2012 WL 3578781, at *7 (S.D.N.Y. Aug. 2, 2012)).

The NYLL also authorizes liquidated damages. See Xochimitl, 2016 WL 4704917, at *15. Effective November 24, 2009, “an employee was entitled to NYLL liquidated damages ‘unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.'” Id. (quoting NYLL § 198(1-a)). “Courts deem defendants' actions willful where they have defaulted, see e.g., Angamarca, 2012 WL 3578781, at *8, and, consequently, such defaulting defendants will have ‘[o]bviously . . . made no showing of ‘good faith.'” Xochimitl, 2016 WL 4704917, at *15 (quoting Guaman, 2016 WL 791230, at *7). Effective April 9, 2011, the liquidated damages award under the NYLL is 100% of the amount of unpaid wages. NYLL §§ 198(1-a), 663(1).

The Second Circuit precludes a plaintiff from recovering liquidated damages under both the FLSA and the NYLL. See Chowdhury v. Hamza Express Food Corp., 666 Fed.Appx. 59, 60 (2d Cir. 2016); Mondragon, 2019 WL 2551536, at *11. A plaintiff should recover “under the statute that provides the greatest relief.” Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14 Civ. 7850 (VEC) (DF), 2016 WL 8650464, at *9 (S.D.N.Y. Nov. 7, 2016). The NYLL allows for prejudgment interest in addition to liquidated damages, see NYLL § 198(1-a), but the FLSA does not. See Valdez v. H & S Rest. Operations, Inc., No. 14 Civ. 4701 (SLT) (MDG), 2016 WL 3079028, at *6 (E.D.N.Y. Mar. 29, 2016), adopted by 2016 WL 3087053 (E.D.N.Y. May 27, 2016). The NYLL, therefore, provides greater relief. See Mondragon, 2019 WL 2551536, at *11.

Having defaulted, Defendants have not carried their burden of demonstrating good faith under the NYLL, see Mondragon, 2019 WL 2551536, at *11, and therefore, Pinzon is entitled to liquidated damages equivalent to 100% of his unpaid wages. See Victor, 2022 WL 3656312, at *11-12 (awarding liquidated damages of 100% of unpaid wages where defendants had defaulted); Suriel, 2022 WL 1750232, at *16 (same); Schalaudek, 2017 WL 729544, at *10 (same).

f. Statutory Wage Notices and Statements

“The [WTPA], which became effective April 9, 2011, required [Defendants] to provide [Pinzon], at the time of hiring, with a notice containing, inter alia, the rate and frequency of [his] pay, NYLL § 195(1), and to furnish [him] with a written statement with each payment of wages, listing, inter alia, the dates covered by the payment, the regular rate of pay, the overtime rate, and the number of hours worked. NYLL § 195(3).” Mondragon, 2019 WL 2551536, at *12.

Pinzon alleges that Defendants failed to provide him with wage notices when he was hired and failed to furnish him with weekly wage statements. (ECF Nos. 1 ¶¶ 47-49, 55, 85-89; 40-1 ¶¶ 26-27). While Pinzon sufficiently pleads that Defendants failed to comply with NYLL §§ 195(1)(a) and 195(3), but nevertheless lacks standing to maintain these claims. “Article III standing requires plaintiffs to show (1) an ‘injury in fact,' (2) a ‘causal connection' between that injury and the conduct at issue, and (3) a likelihood ‘that the injury will be redressed by a favorable decision.'” Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 19 F.4th 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). To demonstrate an injury in fact, a plaintiff “must show the invasion of a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or imminent, not conjectural or hypothetical.” Id. For an “informational injury” resulting from the failure to receive required information to give rise to standing, see TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2214 (2021), a plaintiff must allege “downstream consequences” resulting from the failure to receive the information that demonstrate an interest in using the information “beyond bringing [the] lawsuit.” Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022).

Here, Pinzon does not allege any facts describing an “injury in fact sufficient to confer standing and [has] not demonstrated how [his] lack of notice resulted in an injury greater than Defendants'” wage violations. Gao v. Umi Sushi, No. 18 Civ. 6439 (ALC) (SN), 2023 WL 2118203, at *7 (S.D.N.Y. Jan. 31, 2023), adopted by, 2023 WL 2118080 (S.D.N.Y. Feb. 17, 2023). Further, Pinzon has not identified any informational injury giving rise to consequences other than this lawsuit. Id. Following the decisions of other courts in this District, I therefore respectfully recommend that Pinzon's request for statutory damages under the WTPA be DENIED. Id.; accord Reyes v. Coppola's Tuscan Grill, LLC, No. 21 Civ. 7040 (AT) (SN), 2023 WL 4303943, at *6 (S.D.N.Y. June 13, 2023), adopted by, 2023 WL 4304676 (S.D.N.Y. June 30, 2023); Ramirez v. Urion Constr. LLC, No. 22 Civ. 3342 (LGS) (RWL), 2023 WL 3570347, at *8 (S.D.N.Y. Apr. 28, 2023), adopted by, 2023 WL 3570639, at *8 (S.D.N.Y. May 19, 2023); Belliard v. Tarnovsky, No. 20 Civ. 1055 (GBD) (KHP), 2023 WL 3004963, at *5-6 (S.D.N.Y. Mar. 6, 2023), adopted by, 2023 WL 3304723 (S.D.N.Y. May 8, 2023); Hernandez v. 99 Thai Playground LLC, No. 19 Civ. 1257 (ALC) (SN), 2022 WL 18539303, at *7 (S.D.N.Y. Nov. 28, 2022), adopted by, 2023 WL 1400626 (S.D.N.Y. Jan. 31, 2023); Pastrana v. Mr. Taco LLC, No. 18 Civ. 9374 (GBD) (SN), 2022 WL 16857111, at *7 (S.D.N.Y. Sept. 23, 2022), adopted by, 2022 WL 16857107 (S.D.N.Y. Nov. 10, 2022).

D. Damages

1. Evidentiary Basis

The Court must also determine whether Pinzon has provided sufficient evidence to support his claim for damages. See Transatlantic Marine, 109 F.3d at 111; Bleecker v. Zetian Sys., Inc, No. 12 Civ. 2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013). In his Damages Submission, Pinzon filed his Declaration attesting to the dates and circumstances of his employment. (ECF No. 40-1). Despite warnings, Defendants have not responded to the Court's orders or the Damages Submission or provided any contrary evidence. (ECF Nos. 34; 36). The Court finds that Pinzon has met his evidentiary burden of proving damages, and that an in-person hearing is unnecessary because his Damages Submission, combined with Defendants' admissions resulting from their default, constitute a sufficient basis from which to evaluate the fairness of his damages request. See Fustok, 873 F.2d at 40; see also Bos. Sci. Corp. v. N.Y. Ctr. for Specialty Surgery, No. 14 Civ. 6170 (RRM), 2015 WL 13227994, at *3 (E.D.N.Y. Aug. 31, 2015) (same), adopted by, 2016 WL 8711378 (E.D.N.Y. Jan. 29, 2016).

2. Straight Time Wages

As discussed above, Defendants were required to pay Pinzon Straight Time Wages at New York's statutory minimum wage for the first 40 hours that he worked each week, but paid him below that rate for the period December 21, 2020 until July 15, 2021. (See § III.C.3.c, supra). Having reviewed the Damages Submission, the Court observes that Pinzon has not broken out the amount of Straight Time Wages he seeks (see ECF No. 40-2), and therefore has done its own independent calculation and recommends that he be awarded Straight Time Wages in the amounts below:

3. Overtime Wages

The Court calculates the appropriate overtime wages “by multiplying [Pinzon's] regular hourly rate (or the minimum wage rate, if his regular hourly rate falls below the minimum wage) by one and one-half,” then by multiplying that rate “by the number of hours in excess of forty hours [he] worked each week.” Rosendo v. Everbrighten Inc., No. 13 Civ. 7256 (JGK) (FM), 2015 WL 1600057, at *4 (S.D.N.Y. Apr. 7, 2015). Here, Pinzon claims that Defendants paid him his regular hourly rate for all hours worked, including those over 40 hours per week, (ECF Nos. 1 ¶¶ 41-44; 40-1 ¶¶ 18-23), and he is therefore entitled to recover 50% of his normal hourly rate with respect to each overtime hour worked.

Again, because Pinzon's Damages Submission does not separate his claimed unpaid overtime wages from his claimed Straight Time Wages, the Court has done an independent calculation and recommends that Pinzon be awarded overtime wages in the amounts below:

4. Liquidated Damages

Liquidated damages are calculated as “one hundred percent of the total amount ofwages found to be due . . .” NYLL § 198(1-a). Here, that is the sum of Pinzon's unpaid Straight Time Wages ($1,880.00) and overtime wages ($15,267.00), or $17,147.00. See Victor, 2022 WL 3656312, at *13; Agureyev, 2021 WL 847977, at *10.

5. Prejudgment Interest

In the Complaint, Pinzon sought prejudgment interest, and in the Damages Submission, calculates prejudgment interest on his unpaid Straight Time and overtime wages at a rate of 0.9%. (See ECF Nos. 1 at 17 ¶ (o); 40-2 at 2; 41 at 2). Although prejudgment interest is not awarded where FLSA liquidated damages are awarded, “prejudgment interest is still appropriate where a plaintiff is awarded liquidated damages under the NYLL.” Morales v. MwBronx, Inc., No. 15 Civ. 6296 (TPG), 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016). “Prejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages.” Maldonado v. La Nueva Rampa, Inc., No. 10 Civ. 8195 (LLS) (JLC), 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012), adopted by, Order dated Aug. 9, 2012 (ECF No. 20).

Under New York law, prejudgment interest is awarded at the rate of nine percent per year. N.Y. C.P.L.R. § 5004. For damages occurring “at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.” N.Y. C.P.L.R. § 5001. “Simple prejudgment interest is calculated from a singular, midpoint date . . . [and] by multiplying the principal by the interest rate by the time period-from a singular, midpoint date-up until and including the date judgment is entered.” Maldonado, 2012 WL 1663941, at *11. The midpoint of a plaintiff's employment is often used as the date from which to calculate prejudgment interest in wage-and-hour cases. See Suriel, 2022 WL 1750232, at *17; Mondragon, 2019 WL 2551536, at *11.

Pinzon's Damages Submission describes how he computed prejudgment interest, i.e., “from the midpoints of each pay period[” (ECF No. 40 ¶ 9), which is largely consistent with the methodology in the cases cited above. See e.g., Mondragon, 2019 WL 2551536, at *11 (“Where [] damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.”) (quoting N.Y. C.P.L.R. 5001(b)). Pinzon's employment lasted from December 21, 2020 until June 25, 2022-a total of 551 days-and the midpoint of his employment was September 22, 2021 (275 days after December 21, 2020). Accordingly, the Court respectfully recommends an award of prejudgment interest at a rate of nine percent per year calculated from September 22, 2021 through the date of judgment. See Ortega v. Matilda Gourmet Deli Inc., No. 21 Civ. 10212 (LGS), 2023 WL 1861279, at *1 (S.D.N.Y. Feb. 9, 2023) (awarding prejudgment interest from “the approximate midpoint of [the plaintiff's] employment . . . until the date of judgment”).

6. Post-judgment Interest

Pinzon also seeks post-judgment interest. (ECF No. 1 at 17 ¶ (o)). The applicable federal statute provides that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court . . . calculated from the date of entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding . . . the date of the judgment.” 28 U.S.C. § 1961. The Second Circuit has explained that an award of post-judgment interest is mandatory. See Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008); see also Suriel, 2022 WL 1750232, at *17 (awarding post-judgment interest). Given the mandatory nature of postjudgment interest, the Court respectfully recommends that Pinzon be awarded post-judgment interest in an amount consistent with 28 U.S.C. § 1961.

7. Attorneys' Fees

Pinzon seeks an award of attorneys' fees in the amount of $6,370.00. (ECF Nos. 40 ¶¶ 1112; 41 at 2). The NYLL permits a successful plaintiff to recover reasonable attorneys' fees. NYLL §§ 198, 663. “Whether an attorneys' fee award is reasonable is within the discretion of the court.” De Jesus v. Sea Crest Diner-Rest., No. 17 Civ. 275 (ADS) (SIL), 2018 WL 3742778, at *11 (E.D.N.Y. May 7, 2018) (citing De Jesus Galindo v. BLL Rest. Corp., No. 15 Civ. 5885 (HBP), 2018 WL 1684412, at *3 (S.D.N.Y. Apr. 6, 2018)). To determine a “presumptively reasonable fee,” the Court multiples the hours counsel reasonably spent on the litigation by a reasonable hourly rate. Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011). “The presumptively reasonable fee boils down to what a reasonable paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.” Simmons v. N.Y.C. Transit Auth. 575 F.3d 170, 174 (2d Cir. 2009) (internal citations omitted).

a. Reasonable Hourly Rate

Pinzon was represented by William K. Oates (“Oates”) and Catalina Sojo (“Sojo”), with the assistance of paralegals, at the firm CSM Legal P.C. (the “Firm”). (ECF Nos. 40 ¶ 12; 40-3). Oates recorded his time at an hourly rate of $400, Sojo at an hourly rate of $350, and the paralegals at an hourly rate of $125. (ECF Nos. 40 ¶ 12; 40-3).

To determine whether an hourly rate is reasonable, the Second Circuit has instructed district courts to “apply the prevailing rate within the district for similar services by lawyers of comparable experience and skill.” Galeana v. Lemongrass on B'way Corp., 120 F.Supp.3d 306, 323 (S.D.N.Y. 2014) (citing Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)). A court may also adjust the hourly rate to account for case-specific variables such as:

[i] the time and labor required; [ii] the novelty and difficulty of the questions; [iii] the skill requisite to perform the legal service properly; [iv] the preclusion of employment by the attorney due to acceptance of the case; [v] the customary fee; [vi] whether the fee is fixed or contingent; [vii] time limitations imposed by the client or the circumstances; [viii] the amount involved and the results obtained; [ix] the experience, reputation, and ability of the attorneys; [x] the “undesirability” of the case; [xi] the nature and length of the professional relationship with the client; and [xii] awards in similar cases.

In this district, courts generally award experienced wage-and-hour attorneys between $300.00 to $400.00 per hour. See Surdu v. Madison Glob., LLC, No. 15 Civ. 6567 (HBP), 2018 WL 1474379, at *10 (S.D.N.Y. Mar. 23, 2018) (collecting cases regarding litigators with one or more decades of experience); see also Pastor v. Alice Cleaners, Inc., No. 16 Civ. 7264 (JLC), 2017 WL 5625556, at *7-8 (S.D.N.Y. Nov. 21, 2017) (noting fees between $250 and $450 for experienced litigators in wage-and-hour cases in this district); but see Williams v. Epic Sec. Corp., 368 F.Supp.3d 651, 658-59 (S.D.N.Y. 2019) (awarding $600 per hour to lead attorney with 32 years of experience and $350 per hour to junior partner with 11 years of non-wage-and-hour experience).

Oates is an associate at the Firm, and while he does not indicate the number of years he has been admitted to the bar or been representing clients in wage-and-hour cases, the Court observes that other courts in this District have deemed his requested hourly rate of $400 to be reasonable. See Hernandez Ramirez v. AA BC Bakery Cafe Corp., No. 21 Civ. 58 (AT), 2022 WL 3363144, at *3 (S.D.N.Y. July 5, 2022) (awarding Oates hourly rate of $400); Hernandez v. El Azteca y El Guanaco Rest. Corp., No. 20 Civ. 10316 (ER), 2021 WL 5847648, at *2-3 (S.D.N.Y. Dec. 9, 2021) (same); see also Silva v. Legend Upper W. LLC., 590 F.Supp.3d 657, 665 (S.D.N.Y. 2022) (awarding hourly rate of $350); Vazquez v. Bkuk 10 Corp., No. 19 Civ. 3919 (AT) (JLC), 2022 WL 17728033, at *11 (S.D.N.Y. Dec. 16, 2022) (same). Accordingly, the Court finds that Oates' requested hourly rate of $400 is reasonable.

Sojo has been practicing law for less than five years. See Victor, 2022 WL 3656312, at *15. Given this level of experience, other courts in this District have recently awarded Sojo a rate of $225.00. See Tarax v. Blossom W. Inc., No. 19 Civ. 6228 (JSR), 2022 WL 2132749, at *2 (S.D.N.Y. June 14, 2022) (reducing Sojo's hourly rate from $350 to $225); Espinoza v. B'way Pizza & Rest. Corp., No. 17 Civ. 7995 (RA) (KHP), 2021 WL 7903991, at *12 (S.D.N.Y. Nov. 18, 2021) (same), adopted by, 2022 WL 977068 (S.D.N.Y. Mar. 31, 2022). Accordingly, the Court awards Sojo a rate of $225.00 per hour, which is consistent with her level of experience and rates awarded in this District.

For paralegals, hourly rates of $100.00 to $150.00 are typical for awards in this District. See Inga, 2021 WL 3624666, at *14 (collecting cases). Accordingly, the Court finds that the requested hourly rate of $125.00 is reasonable.

b. Reasonable Hours Expended

Oates expended 13.3 hours, Sojo 2.0 hours, and the paralegals 2.8 hours. (ECF Nos. 40 ¶ 12; 40-3). To determine the reasonable number of hours required by a case, the critical inquiry is “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Courts must perform “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). “If the Court finds that some of the claimed hours are excessive, redundant or otherwise unnecessary, it may reduce the number of reasonable hours accordingly.” Bumble & Bumble, LLC v. Pro's Choice Beauty Care, Inc., No. 14 Civ. 6911 (VEC) (JLC), 2016 WL 658310, at *9 (S.D.N.Y. Feb. 17, 2016), adopted by, 2016 WL 1717215 (S.D.N.Y. Apr. 27, 2016); see Hensley, 461 U.S. at 434.

The Court has examined the contemporaneous billing records for Pinzon's case, including the hours expended, dates of work, and brief descriptions of the work the attorneys and paralegals performed. (See generally ECF No. 40-3). The Court finds that the hours they each expended were reasonable and not “excessive, redundant, or otherwise unnecessary[.]” Hensley, 461 U.S. at 434.

Accordingly, the Court recommends an award of attorneys' fees in the amounts below:

8. Costs

Pinzon requests costs in the amount of $786.00, consisting of: (1) the court filing fee ($402.00); (2) service costs ($200.00); and (3) due diligence inquiry fees ($184.00). (ECF Nos. 40 ¶ 14; 40-4). An employee who prevails in a wage-and-hour action is entitled to recover costs. See 29 U.S.C. § 216(b); NYLL § 663(1). Recoverable costs are “those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998).

In support of his request for these costs, Pinzon has submitted invoices that substantiate the claimed amounts. (ECF No. 40-4). See Sanchez, 2018 WL 4502008, at *17 (noting that adequate substantiation is required for award of costs). The Court may also take judicial notice of the filing fee reflected on the docket. (ECF No. 1). See Inga, 2021 WL 3624666, at *15 (collecting cases). The Court therefore recommends that Pinzon be awarded $786.00 in costs.

IV. CONCLUSION

For the reasons set forth above, I respectfully recommend that Pinzon be awarded (1) damages in the amount of $17,147.00, comprised of $1,880.00 in unpaid minimum wages and $15,267.00 in unpaid overtime wages; (2) $17,147.00 in liquidated damages; (3) prejudgment interest on Pinzon's damages for unpaid minimum and overtime wages (i.e., $17,147.00) at a rate of nine percent per annum from the period of September 22, 2021 to the date of entry of judgment; (4) post-judgment interest pursuant to 28 U.S.C. § 1961; (5) attorneys' fees and costs in the amount of $6,906.00. I also respectfully recommend that no statutory damages under the WTPA be awarded due to lack of standing.

Pinzon shall serve a copy of this Report and Recommendation on Defendants and, by August 2, 2023, file proof of service on the docket.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koeltl.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYa WILL REaULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).