Neither does evaluating the evidence under the Zheng factors indicate that Julia is an employer, and plaintiffs do not argue that the Zheng factors compel that conclusion. Instead, plaintiffs argue, based on Hernandez v. La Cazuela de Mari Restaurant, Inc., 538 F. Supp. 2d 528 (E.D.N.Y. 2007), and Ansoumana v. Gristede's Operating Corp., 255 F. Supp. 2d 184 (S.D.N.Y. 2003), that "[a]s the sole owner, Julia Makris has full authority and control over Plaintiffs' working conditions, and is clearly an employer and thus liable for all wage violations." (Pls.' Mem. at 26.)
Willfulness "encompasses conduct that is deliberate or egregious or is carried out in bad faith." Hernandez v. La Cazuela de Mari Rest., Inc., 538 F. Supp. 2d 528, 532 (E.D.N.Y. 2007); see also American Airlines Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 60-61 (2d Cir. 1996). When a default is a strategic choice or part of a litigation tactic, the willfulness element is easily satisfied.
Nor do the costs and legal fees related to obtaining default judgment or opposing a motion to vacate. Hernandez v. La Cazuela de Mari Rest., Inc., 538 F.Supp.2d 528, 534 (E.D.N.Y. 2007).
However, "[o]f these three criteria, 'willfulness is preeminent, and a willful default will not normally be set aside.' " Arista Records, Inc. v. Musemeci, No. 03-cv-4465, 2007 U.S. Dist. LEXIS 81630, at *12 (E.D.N.Y. Sept. 19, 2007) (quoting MacEwen Petroleum, Inc. v. Tarbell, 173 F.R.D. 36, 39 (N.D.N.Y. 1997)); see Hernandez v. La Cazuela de Mari Rest., Inc., 538 F. Supp. 2d 528, 534 (E.D.N.Y. 2007) (notwithstanding the other factors, "a default judgment should not be vacated if the default was willful"); Finkel v. Hall-Mark Elec. Supplies Corp., No. 07-cv-2376, 2011 U.S. Dist. LEXIS 76716, at *8 (E.D.N.Y. July 12, 2011) ("If a default is determined to be willful, that fact alone can justify denying a motion to vacate a default judgment").
Like the FLSA, the definition of employer under NYLL is particularly broad. See N.Y. Lab. Law § 190(3) (" ‘Employer’ includes any person ... employing any individual"); see alsoHernandez v. La Cazuela de Mari Rest., Inc. , 538 F. Supp. 2d 528, 534-35 (E.D.N.Y. 2007) ("[L]ike the definition for ‘employer’ under the FLSA, the definition under New York minimum wage law is expansive."). In determining whether an individual or entity falls under the "employer" umbrella, the Court's inquiry focuses on the "economic reality" of the relationship between the purported employer and the workers in question.
Moreover, courts determining whether joint-employment exists under the FLSA and NYLL use the same standards. See Hernandez v. La Cazuela de Mari Rest., Inc., 538 F. Supp. 2d 528, 534-35 (E.D.N.Y. 2007) ("[W]hether an individual is an 'employer' under New York law involves the same legal considerations as those under federal law."); see also Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 264 n.48 (S.D.N.Y. 2008); Chen v. St. Beat Sportswear, Inc., 364 F. Supp. 2d 269, 278 (E.D.N.Y. 2005). To inform the determination of whether a person is an employer, courts conduct an "economic reality" test, using four primary factors: 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."
Courts determining whether joint-employment exists under the FLSA and NYLL use the same standards. See Hernandez v. La Cazuela de Mari Rest., Inc., 538 F. Supp. 2d 528, 534-35 (E.D.N.Y. 2007) ("[W]hether an individual is an 'employer' under New York law involves the same legal considerations as those under federal law."); see also Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 264 n.48 (S.D.N.Y. 2008); Chen v. St. Beat Sportswear, Inc., 364 F. Supp. 2d 269, 278 (E.D.N.Y. 2005). Although the FLSA defines "employer" "expansive[ly]," its definition is not unlimited.
Without any such evidence, the Court finds that FIEC has failed to meet its burden here. See Hernandez v. La Cazuela De Mari Restaurant, Inc., 538 F. Supp. 2d 528, 536 (E.D.N.Y. 2007) (refusing to vacate default judgment because defendants did not offer any evidence explaining their counsel's failure to act on their behalf and finding conclusory assertions that counsel was negligent to be insufficient). In addition to a lack of evidence, FIEC has not cited any case law to supports its argument that its former counsel's alleged failure to answer the Complaint constitutes good cause.
(citation omitted)); Hernandez v. La Cazuela de Mari Rest., Inc., 538 F.Supp.2d 528, 534 (E.D.N.Y. 2007) (“The incurrence of these costs [of moving for a default judgment] does not establish prejudice.
Thus, the Court finds that Plaintiff will be prejudiced if the default in this case were vacated.") with Hernandez v. La Cazuela de Mari Restaurant, Inc., 538 F.Supp.2d 528, 534 (E.D.N.Y. 2007) ("The incurrence of these costs [of moving for default] does not establish prejudice"). In the circumstances of this case, the Court finds that NEPG will be substantially prejudiced if Bassili's default is set aside.