Opinion
22 Civ. 6409 (JLR) (GWG)
04-11-2023
SALLIE CAPUTI-RICHARDS, Plaintiff, v. CHUCK'S VINTAGE, INC., Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Sallie Caputi-Richards brought this action against defendant Chuck's Vintage, Inc. (“Chuck's”) and Vincent Cammarata for violations of the New York Labor Law §§ 190 et seq. (“NYLL”) and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). See Complaint, filed July 28, 2022 (Docket # 1) (“Compl.”). Caputi-Richards never served Cammarata with the complaint in this case, and the complaint was dismissed as to Cammarata. See Order, filed Feb. 6, 2023 (Docket # 19). Caputi-Richards now seeks entry of a default judgment against Chuck's.
See Motion for Default Judgment, filed Feb. 21, 2023 (Docket # 20) (“Mot.”); Declaration of Casey Wolnowski, filed Feb. 21, 2023 (Docket # 21) (“Wolnowski Decl.”); Memorandum of Law, filed Feb. 21, 2023 (Docket # 22); Proposed Findings of Fact and Conclusions of Law, filed Mar. 3, 2023 (Docket # 26) (“PFFCL”); Declaration, filed Mar. 3, 2023 (Docket # 26-1) (“Caputi-Richards Decl.”); Amended Memorandum, filed Mar. 3, 2023 (Docket # 27) (“Mem.”).
I. BACKGROUND
A. Procedural Background
Caputi-Richards brought this action on July 28, 2022. See Compl. Chuck's was served on August 12, 2022. Affidavit of Service, filed Aug. 21, 2022 (Docket # 6). Caputi-Richards obtained a certificate of default as to Chuck's after the deadline to answer expired. See Clerk's Certificate of Default, filed Sept. 6, 2022 (Docket # 9).
On February 21, 2023, Caputi-Richards moved for a default judgment as to Chuck's. See Mot. The district judge then referred this matter to the undersigned for an inquest. See Order, filed Feb. 23, 2023 (Docket # 23). The undersigned issued an order directing plaintiff to file proposed findings of fact and conclusions of law. See Scheduling Order for Damages Inquest, filed Feb. 24, 2023 (Docket # 25) (“Scheduling Order”). Caputi-Richards filed proposed findings of fact and conclusions of law on March 3, 2023. See PFFCL. Chuck's has not responded to any filing in this case, including the motion for default judgment and proposed findings.
B. Facts
Chuck's is a California corporation that owned, operated, and maintained a store called Chuck's Vintage at 173 East 91st St, New York, NY 10128. See Compl. ¶¶ 8-9. Caputi-Richards worked as a “store manager” at this store and was responsible for “opening and closing the store, creating weekly reports, handling and developing the store's social media, and facilitating transactions.” Id. ¶ 20. Caputi-Richards received “approximately $6,000” per month, paid at the end of each month, since she began this job “[i]n or around mid-September 2021.” Id. ¶ 19. She worked from noon to 7:00 PM for five days a week, averaging 35 hours a week. Id. ¶ 20.
At the end of January 2022, Chuck's did not pay Caputi-Richards her monthly salary. See id. ¶¶ 21-23. Caputi-Richards worked her normal hours and fulfilled her normal duties from January 1 to March 19, 2022, but did not receive any pay for working during this period. Id. ¶ 22. Caputi-Richards stopped working “[o]n or about” March 19, 2022 due to the lack of pay. Id. ¶ 24. She returned to the store to pick up some belongings on March 27, 2022, only to discover the locks were changed and the store was shut down. Id. ¶ 26.
II. LAW GOVERNING DEFAULT JUDGMENTS
In light of defendant's default, plaintiff's properly pleaded allegations in the amended complaint, except those related to damages, are accepted as true. See, e.g., 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.” (punctuation omitted)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor.”).
As to damages, “[t]he district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim” and (2) “assess[ ] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Plaintiff bears the burden of establishing her entitlement to the amount sought. See Trs. of Local 813 Ins. Tr. Fund v. Rogan Bros. Sanitation Inc., 2018 WL 1587058, at *5 (S.D.N.Y. Mar. 28, 2018). In the case of a default where the defendant has never appeared, “a court may base its determination of damages solely on the plaintiff's submissions.” Id. (citing Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). While a court must “take the necessary steps to establish damages with reasonable certainty,” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997), a court need not hold a hearing “as long as it ensure[s] that there [is] a basis for the damages specified in a default judgment,” Fustok, 873 F.2d at 40.
Here, the Court's Scheduling Order notified the parties that the Court might conduct the inquest into damages based upon the written submissions of the parties, but that a party may seek an evidentiary hearing. See Scheduling Order ¶ 3. No party has requested an evidentiary hearing. Moreover, because plaintiff's submissions provide a basis for an award of damages, no hearing is required.
III. DISCUSSION
Caputi-Richards brought suit under both the NYLL and the FLSA. It is settled that while a plaintiff may be entitled to recover unpaid minimum wages and overtime pay under both the FLSA and the NYLL, he or she may not recover twice. Instead, where a plaintiff is entitled to damages under both federal and state wage law, a plaintiff may recover under the statute which provides the greatest amount of damages.
Ergin v. 8th Hill Inc., 2022 WL 1037655, at *3 (S.D.N.Y. Apr. 6, 2022) (internal citations omitted), adopted, 2022 WL 1256996 (S.D.N.Y. Apr. 26, 2022). Because the NYLL provides for the greater recovery in Caputi-Richards' case, we do not address any provisions of the FLSA.
A. Unpaid Earned Wage
Caputi-Richards makes no claim to overtime or unpaid minimum wage in this case. Under the FLSA, Caputi-Richards would not be entitled to recover what she seeks because “[w]ith respect to non-overtime wages . . . -commonly referred to as straight time-[t]he FLSA allows recovery for unpaid straight time only up to the minimum wage rate.” Contrera v. Langer, 314 F.Supp.3d 562, 572 (S.D.N.Y. 2018) (citations and punctuation omitted). As the Second Circuit has noted, “[a]n employee who has not worked overtime has no claim under FLSA for hours worked below the 40-hour overtime threshold, unless the average hourly wage falls below the federal minimum wage.” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir. 2013).
Here, however, Caputi-Richards relies on NYLL § 191, see Mem. at 6-8, which provides that a worker “be paid the wages earned in accordance with the agreed terms of employment.” NYLL § 191(1)(d). Under this section, “a plaintiff can recover for unpaid ‘straight' time at the agreed-upon (or regular) rate where it exceeds the minimum wage.” Espinoza v. La Oficina Bar Corp., 2022 WL 987429, at *11 (E.D.N.Y. Mar. 1, 2022) (collecting cases), adopted as modified, 2022 WL 985836 (E.D.N.Y. Mar. 31, 2022); accord Soto v. Armstrong Realty Mgmt. Corp., 2016 WL 7396687, at *2 (S.D.N.Y. Dec. 21, 2016), adopted, 2017 WL 2191625 (S.D.N.Y. May 17, 2017).
This ruling is consistent with Contrera, which found that a particular provision of NYLL § 198, § 198(3), did not permit a claim for straight time, 314 F.Supp.3d at 568-59, but did not reach the issue of whether NYLL § 191 permitted such a claim, see id. at 571 n.2.
Based on the allegations in her complaint, Caputi-Richards is owed unpaid wages for January, February, and March 1-19, 2022, which equal $16,500 in unpaid wages.
Caputi-Richards asserts both that she ceased working on March 19, 2022, see Compl. ¶¶ 22, 24, and that she regarded finding the store closed a week later as the date of her termination, see id. ¶ 28. Based on the facts alleged, Caputi-Richards has shown that her employment in fact ended on March 19, 2022, the date on which she “let Defendant Cammarata know that she was unable to work.” Id. ¶ 24.
B. Liquidated Damages
Caputi-Richards seeks liquidated damages for her unpaid wages. See Mem. at 9-10. N.Y. Lab. Law § 198(1-a) allows employees to recover “an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due” “unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.” Accord Callender v. Panabori Food Corp., 2018 WL 4565876, at *13 (S.D.N.Y. July 11, 2018), adopted, 2018 WL 3728931 (S.D.N.Y. Aug. 6, 2018). Chuck's defaulted and therefore has not provided any evidence to suggest it had a good faith basis to believe its underpayment complied with the law. Accordingly, Caputi-Richards should be awarded 100% of her “unpaid wages.” Villanueva v. 179 Third Ave. Rest. Inc., 500 F.Supp.3d 219, 239 (S.D.N.Y. 2020); accord Cavalotti v. Daddyo's BBQ, Inc., 2018 WL 5456654, at *19 (E.D.N.Y. Sept. 8, 2018) (awarding 100% liquidated damages for “unpaid straight-time wages” under the NYLL). This amounts to $16,500.
C. Prejudgment Interest
Caputi-Richards seeks prejudgment interest. See Mem. at 10-12. A plaintiff who prevails on a NYLL-wage claim is entitled to prejudgment interest on any “underpayment” of wages. See N.Y. Lab. Law § 198(1-a); Santana v. Latino Express Rests., Inc., 198 F.Supp.3d 285, 294-95 (S.D.N.Y. 2016); Castillo v. RV Transport, Inc., 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016). While “a plaintiff who receives FLSA liquidated damages may not also receive prejudgment interest[,] . . . liquidated damages under the NYLL are considered punitive in nature, thus enabling a plaintiff to recover both liquidated damages and pre-judgment interest.” Villanueva, 500 F.Supp.3d at 243. However, “the award of prejudgment interest applies only to the amount of underpayment of wages, not the liquidated damages.” Salustio v. 106 Columbia Deli Corp., 264 F.Supp.3d 540, 557 (S.D.N.Y. 2017).
Post-judgment interest will accrue automatically pursuant to 28 U.S.C. § 1961.
Prejudgment interest in New York runs at the rate of nine percent per annum. N.Y. C.P.L.R. § 5004 (a). The starting date from which a court computes this interest is “the earliest ascertainable date the cause of action existed.” Conway v. Icahn & Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994) (quoting N.Y. C.P.L.R. § 5001(b)). However, “[w]here such 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.” N.Y. C.P.L.R. § 5001(b); see also Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998) (“New York law leaves to the discretion of the court the choice of whether to calculate prejudgment interest based upon the date when damages were incurred or ‘a single reasonable intermediate date'”) (citing 155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560-61 (2d Dep't 1996)).
Here, Caputi-Richards' claims for unpaid wages arose on different dates from January 1 to March 19, 2022. See Compl. ¶ 22. As is common in cases under the NYLL, see, e.g., Urena v. 0325 Tuta Corp., 2022 WL 4284879, at *8 (S.D.N.Y. Sept. 16, 2022), adopted, 2022 WL 17249362 (S.D.N.Y. Nov. 28, 2022), we will calculate prejudgment interest from the midpoint date of this employment period: here, February 9, 2022. Accordingly, Caputi-Richards is entitled to prejudgment interest on her unpaid wage damages of $16,500.00 from February 9, 2022, until the date judgment is entered. This amounts to $4.07 per day ([16500 * .09] / 365 days).
D. Attorney's Fees
Caputi-Richards has prevailed on her NYLL claims and is therefore entitled to seek an award of reasonable attorney's fees. See N.Y. Lab. Law § 663(4). In determining a statutory fee award, “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (punctuation omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a “presumptively reasonable fee,” Arbor Hill, 522 F.3d at 183, and is commonly referred to as the “lodestar,” id.; see also Miroglio S.P.A. v. Conway Stores, Inc., 629 F.Supp.2d 307, 312 (S.D.N.Y. 2009). Using the “lodestar” method, plaintiff requests $6,847.70 in attorneys' fees. See PFFCL ¶ 23; Exhibit 5, attached to PFFCL (Docket # 26-5) (“Time Records”).
1. Reasonable Hours
It is well-established that “any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); accord Ergin v. 8th Hill Inc., 2022 WL 1037655, at *6 (S.D.N.Y. Apr. 6, 2022), adopted, 2022 WL 1213432 (S.D.N.Y. Apr. 25, 2022), and 2022 WL 1256996 (S.D.N.Y. Apr. 26, 2022). Here, Casey Wolnowski has attached time records for all attorneys and paralegals involved in this case, see Time Records, and he has sworn that the records were contemporaneously made, see PFFCL ¶ 24. When reviewing such records, courts must make “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) (per curiam). “The critical inquiry is ‘whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *12 (S.D.N.Y. Aug. 2, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). In addressing this question, courts should not, however, engage in “an ex post facto determination of whether attorney hours were necessary to the relief obtained.” Grant, 973 F.2d at 99.
Additionally, if a court finds that claimed hours are “excessive, redundant, or otherwise unnecessary,” it should exclude those hours from its calculation of the presumptively reasonable fee. Hensley, 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999) (citations omitted); Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *15 (S.D.N.Y. May 13, 2015). However, as the Supreme Court noted in Hensley, “[t]here is no precise rule or formula for making these determinations.” 461 U.S. at 436. Because “it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application,” Carey, 711 F.2d at 1146, “the court has discretion simply to deduct a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application,'” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146). Thus, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday, 42 F.3d at 134.
Here, the documents submitted by plaintiff reflect that two attorneys worked on this case: Wolnowski and Jeffrey Rosenberg. See PFFCL ¶ 23; Time Records. Together, the attorneys expended 15.171 hours. See Time Records. The time records “provide detailed descriptions of the tasks completed, and the time expended on each task is reasonable.” Poon v. Apple NYC Corp., 2019 WL 75674, at *11 (S.D.N.Y. Jan. 2, 2019). Moreover, the time spent on this case by the two attorneys was not greater than the number of hours “routinely awarded in cases in similar postures.” Id. (awarding requested 24.6 hours in an FLSA and NYLL default case with more plaintiffs and issues than the instant case); Perry v. Furman's Lab LLC, 2018 WL 6576050, at *6 (E.D.N.Y. Aug. 31, 2018) (almost 23 hours found reasonable to litigate a defaulting wage-and-hour case with a single plaintiff), adopted, 2018 WL 5801539 (E.D.N.Y. Nov. 6, 2018). Thus, we view the hours expended by Caputi-Richards' attorneys as reasonable.
In addition to the attorneys, a paralegal worked .166 hours on this case. See Time Records at 2. We find the .166 hours of paralegal work billed to be reasonable given the nature of this case.
2. Reasonable Hourly Rate
In determining whether the hourly rate is reasonable, “the burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience[,] and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).
To determine an appropriate hourly rate, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original).
The “Johnson factors” are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill specifically identified the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill held that a court must “step[ ] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” Id. (emphasis added). “In other words, whether the attorneys on this case properly command the rates they seek in the marketplace is not dispositive of the rate that they are to be awarded. Rather, Arbor Hill demands that we determine the cheapest hourly rate an effective attorney would have charged.” Poon, 2019 WL 75674, at *12 (emphasis in original).
The requested attorney rates are $450.00 an hour for both Wolnowski and Rosenberg. See PFFCL ¶ 23. Other than a statement that the attorneys in this case are “at a firm that specialize[s] in employment law” and a citation to a single case, see Mem. at 12-13, plaintiff has not provided information about the background of her attorneys. After consideration of the Johnson and Arbor Hill factors, we note that this case was not especially complex, was not contested in any form, and did not impose substantial timing demands. See Wolnowski Decl. ¶¶ 12-13.
Wolnowski is a “senior managing counsel” at his firm, see id. ¶ 1, and, based on his website, he has been practicing in this field for nearly a decade. Plaintiff refers the Court to a case in which Wolnowski apparently was compensated at a rate of $450.00 per hour. See Fakir v. Skyrise Rock Corp., 16 Civ. 4695 (JPO) (Docket ## 58, 59); Mem. at 12-13. The decision to which Wolnowski refers, however, was an approval of a settlement agreement, not a determination based on the Arbor Hill/Johnson analysis, and thus we accord it no weight. Fakir, 16 Civ. 4695 (JPO) (Docket # 59). Wolnowski's requested rate of $450.00 is far above what courts have granted him previously and is more than the reasonable rate of attorneys with comparable experience. See, e.g., Perry v. Furman's Lab LLC, 2018 WL 6576050, at *6 (E.D.N.Y. Aug. 31, 2018) ($275.00 per hour for Wolnowski in a “relatively simple wage-and-hour case brought by a single plaintiff'), adopted, 2018 WL 5801539 (E.D.N.Y. Nov. 6, 2018); Roberts v. United Parcel Serv., Inc., 2016 WL 1425766, at *4 (E.D.N.Y. Mar. 16, 2016) (awarding Wolnowski $350.00 following a successful jury verdict in an employment discrimination and retaliation case), adopted, 2016 WL 1441318 (E.D.N.Y. Apr. 8, 2016). “Courts in this District routinely award hourly rates of $300 to $400 per hour for experienced attorneys in labor and employment law cases. However, courts have awarded a lower hourly rate in cases that did not present novel or difficult questions of law or evidentiary challenges due to defendants' default.” Acharya v. Solanki, 2022 WL 1144696, at *7 (S.D.N.Y. Apr. 12, 2022) (citations omitted), adopted, 2022 WL 1239585 (S.D.N.Y. Apr. 27, 2022).
See Nisar Law Group, Casey Wolnowski, https://www.nisarlaw.com/our-team/casey-wolnowski/ (last visited Mar. 31, 2023).
As stated above, this case was not particularly complex, plaintiff has not provided significant information about Wolnowski's experience, and even his responsibilities as the lead attorney only required 12.66 hours. See PFFCL ¶ 23; Time Records. Accordingly, a rate of $325.00 per hour is appropriate.
Rosenberg has ten years' experience. See PFFCL ¶ 23 n.1. The instant case was relatively simple, and Rosenberg was not the lead attorney on it (working 2.511 hours compared to Robinson's 12.66). See id. ¶ 23; Time Records. After considering all relevant factors, we conclude that an appropriate hourly rate for Rosenberg is also $325.00.
Finally, the requested paralegal rate for Catherine Badia is $125.00. Id. It does not appear that the paralegal work required any special expertise, and thus we conclude that an hourly rate of $100.00, which is regularly awarded in comparable cases, should be awarded here. See, e.g., Campos Marin v. J&B 693 Corp., 2022 WL 377974, at *12 (S.D.N.Y. Jan. 21, 2022); Maldonado v. Papadopoulos, 2021 WL 5363016, at *12 (S.D.N.Y. July 17, 2021); Alonso v. New Day Top Trading, Inc., 2020 WL 9815184, at *23 (S.D.N.Y. June 29, 2020); Mercedes v. Tito Transmission Corp., 2019 WL 102007, at *14 (S.D.N.Y. Jan. 4, 2019).
Accordingly, as reflected on the chart below, Caputi-Richards is entitled to attorneys' fees in the amount of $4,947.18.
E. Costs
A prevailing plaintiff under NYLL is entitled to costs, which “include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (citation and punctuation omitted); accord Febus v. Guardian First Funding Grp., LLC, 870 F.Supp.2d 337, 341 (S.D.N.Y. 2012). Here, Caputi-Richards seeks $502.00 in costs consisting of a $402.00 filing fee and $100.00 in service fees. See PFFCL ¶ 25; Mem. at 13. Such costs are generally recoverable. See, e.g., Villanueva, 500 F.Supp.3d at 243 (awarding costs for a filing fee and process server fees). Accordingly, Caputi-Richards should be awarded $502.00 in costs. * * *
In sum, the amounts to be awarded are as follows: $16,500.00 in unpaid wages; $16,500.00 in liquidated damages; $ 4,947.18 in attorney's fees; and $ 502.00 in costs. The total of these amounts is $38,449.18. The judgment should also include prejudgment interest at a rate of $4.07 per day from February 9, 2022 and continuing until the date judgment is entered on the unpaid wages.
We note also that NYLL contains a provision automatically increasing the judgment if Chuck's does not satisfy it after entry by the Court. N.Y. Lab. Law § 198(4) provides that:
Any judgment or court order awarding remedies under this section shall provide that if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.
Accordingly, if any part of the judgment is unpaid at the expiration of such time, and no appeal is pending, the judgment should provide that it is increased by 15 percent.
CONCLUSION
For the foregoing reasons, the total damages that plaintiff Sallie Caputi-Richards should be awarded against defendant Chuck's Vintage, Inc. is $38,449.18, plus interest to be calculated by the Clerk of the Court at a rate of $4.07 per day from February 9, 2022 and until the date judgment is entered. The text of the judgment should provide that if the judgment is not entirely paid within 90 days of judgment, or 90 days after the expiration of appeal, whichever is later, and no appeal is pending, then the total amount of judgment shall automatically increase by 15 percent.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Rochon. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).