Opinion
19-CV-3919 (AT) (JLC)
12-16-2022
JOSE VAZQUEZ REYES, Plaintiff, v. BKUK 10 CORP. et al., Defendants.
Honorable Analisa Torres, United States District Judge.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Jose Vazquez Reyes (“Vazquez”), a former employee of Bkuk 10 Corp. (d/b/a Gallo Nero (a/k/a Cara Mia)), an Italian restaurant in Manhattan, brought this action alleging that Bkuk 10 Corp. and its agent Besim Kukaj (collectively “defendants”) violated the Fair Labor Standards Act and New York Labor Laws by failing to pay him minimum wages and overtime compensation, failing to pay him a spread of hours premium, failing to provide him wage statements and wage notices, and failing to reimburse him for “tools of the trade” that he was required to purchase with his own funds.
Defendants never responded to the complaint. Accordingly, the Court granted a default judgment, and this case was referred to me for an inquest into damages. For the reasons set forth below, I recommend awarding Vazquez $313,813.13 in damages (plus prejudgment interest on $151,906.56 of the damages), $5,619.00 in attorneys' fees and costs, and post-judgment interest.
I. BACKGROUND
A. Factual Background
The following facts, which are drawn from a review of Vazquez's pleadings and his submissions related to this inquest, are deemed established for the purposes of determining defendants' liability and the damages to which Vazquez is entitled. 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.”) (internal citation 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 of [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor[.]”) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
During the entirety of Vazquez's employment, defendants owned and operated an Italian restaurant called Gallo Nero (a/k/a Cara Mia) (“Gallo Nero”) located at 623 Ninth Avenue in Manhattan. Proposed Findings of Fact and Conclusions of Law (“Pl. Mem.”), Dkt. No. 64, ¶¶ 10-12; Declaration of Jose Vazquez Reyes dated May 13, 2022 (“Vazquez Decl.”), Dkt. No. 65, Ex. J, ¶¶ 4-5. Defendants had the power to hire and fire Vazquez, establish his work schedules, manage his responsibilities, and determine the rate and method of his compensation. Complaint (“Compl.”), Dkt. No. 1, ¶ 33; Vazquez Decl. ¶ 7. Vazquez's work responsibilities “involved handling goods that traveled in interstate commerce every day, such as food and other supplies produced outside the State of New York.” Vazquez Decl. ¶ 12; see also Compl. ¶ 37.
Vazquez was employed by defendants as a dishwasher and food preparer from on or about July 1, 2017 to on or about January 30, 2019. Compl. ¶¶ 35-36; Vazquez Decl. ¶¶ 9-10; Pl. Mem. ¶¶ 9-10, 17-18. From on or about July 1, 2017 to on or about September 30, 2018, he worked an average of 92.5 hours per week- from approximately 8:00 am until 11:00 pm on Mondays, Tuesdays, Thursdays, and Sundays; approximately 8:00 am until 12:00 am on Fridays; and approximately 8:00 am until 12:30 am on Saturdays. Compl. ¶ 40; Vazquez Decl. ¶ 15. Between on or about October 1, 2018 and on or about January 30, 2019, he averaged 44.5 hours per week, working from approximately 4:00 pm until 11:00 pm on Mondays, Tuesdays, Thursdays, and Sundays; approximately 4:00 pm until 12:00 am on Fridays; and approximately 4:00 pm until 12:30 am on Saturdays. Compl. ¶ 41; Vazquez Decl. ¶ 16.
Throughout Vazquez's employment, defendants paid him by checks that would usually bounce, after which they would “pay[ ] most of his wages in cash.” Id. ¶ 17. From on or about July 1, 2017 until on or about June 30, 2018, defendants paid Vazquez a fixed salary of $1,120 per week. Compl. ¶ 43; Vazquez Decl. ¶ 18; Pl. Mem. ¶ 25. From on or about July 1, 2018 to on or about September 30, 2018, defendants paid Vazquez a fixed salary of $1,150 per week. Compl. ¶ 44; Vazquez Decl. ¶ 19; Pl. Mem. ¶ 26. And from on or about October 1, 2018 to on or about January 30, 2019, given his lesser hours, defendants paid Vazquez a fixed salary of $450 per week. Compl. ¶ 45; Vazquez Decl. ¶ 20; Pl. Mem. ¶ 27. Vazquez alleges that he never received overtime pay, meal breaks, or rest periods, and that defendants did not pay him any wages for approximately three weeks of work. Vazquez Decl. ¶¶ 21-23.
Defendants did not use any time-tracking device to record Vazquez's hours, nor did they require him to keep track of time on his own. Compl. ¶ 30; Vazquez Decl. ¶ 24; Pl. Mem. ¶ 30. At the time of hiring, defendants did not provide Vazquez notice-in English or in Spanish (his primary language)-of his rate of pay or the employer's regular pay day. Compl. ¶ 55; Vazquez Decl. ¶ 27; Pl. Mem. ¶ 33. Defendants never provided Vazquez with wage statements or notified him of the minimum wage and overtime requirements under New York State or Federal law. Vazquez Decl. ¶¶ 25-26. Defendants required Vazquez to purchase $30 uniforms with his own money. Compl. ¶ 56; Vazquez Decl. ¶ 28; Pl. Mem. ¶ 34.
B. Procedural History
On May 1, 2019, Vazquez filed his complaint. Dkt. No. 1. After being served, defendants never appeared. Dkt. Nos. 16-23, 25. Accordingly, on April 15, 2022, the Court granted Vazquez's motion for a default judgment. Dkt. No. 61.
This case was subsequently referred to me for an inquest into damages. Dkt. No. 62. Vazquez originally named as defendants Grande Doe and Nelson Doe, but he has since voluntarily dismissed his claims against them without prejudice. Dkt. Nos. 70, 71. Thus, this report and recommendation only addresses the claims against Bkuk 10 Corp. and Besim Kukaj.
II. DISCUSSION
A. Legal Standards for an Inquest Into Damages
Although a default is an admission of all well-pleaded allegations against the defaulting party, “a court is still ‘required to determine whether the plaintiff's allegations establish the defendant's liability as a matter of law.'” Bolivar v. FIT Int'l Grp. Corp., No. 12-CV-781 (PGG) (DF), 2017 WL 11473766, at *13 (S.D.N.Y. Mar. 16, 2017) (quoting Mickalis Pawn Shop, 645 F.3d at 137), adopted by 2019 WL 4565067 (Sept. 20, 2019); see also Zhen Ming Chen v. Y Cafe Ave B Inc., No. 18-CV-4193 (JPO), 2019 WL 2324567, at *1 (S.D.N.Y. May 30, 2019) (“[B]ecause a party in default does not admit conclusions of law, the Court must determine whether those allegations establish a sound legal basis for liability.”). Therefore, the Court “must still scrutinize the plaintiff's pleadings and find the claims sufficiently pleaded.” Related Companies, L.P. v. Ruthling, No. 17-CV-4175 (JSR) (DF), 2019 WL 10947100, at *3 (S.D.N.Y. July 23, 2019).
In determining liability, the non-defaulting party is “entitled to all reasonable inferences from the evidence offered.” Mun. Credit Union v. Queens Auto Mall, Inc., 126 F.Supp.3d 290, 295 (E.D.N.Y. 2015) (quoting Au Bon Pain, 653 F.2d at 66). Once liability has been established, the only remaining issue before the Court is “whether the plaintiff has provided adequate support for the relief [he] seeks.” Bleecker v. Zetian Sys., Inc., No. 12-CV-2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013) (quoting Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997)); see also Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages.”).
Establishing the appropriate amount of damages involves two steps: “(1) ‘determining the proper rule for calculating damages on . . . a claim'; and (2) ‘assessing plaintiff's evidence supporting the damages to be determined under this rule.'” Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *4 (S.D.N.Y. Jan. 16, 2015) (alteration in original) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must submit “sufficient evidence, in the form of detailed affidavits and other documentary materials to enable the district court to ‘establish damages with reasonable certainty.'” Natl Photo Grp., LLC v. Bigstar Entm't, Inc., No. 13-CV-5467 (VSB) (JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (quoting Transatl. Marine Claims Agency, 109 F.3d at 111) (internal citations omitted); see also Fed.R.Civ.P. 55(b)(2). Although Rule 55 of the Federal Rules of Civil Procedure allows the Court to conduct hearings to determine damages, no such hearing is mandatory. See, e.g., Cement & Concrete Corkers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012).
The Second Circuit has long approved the process of conducting an inquest by affidavit, without an in-person court hearing, “as long as [the court has] ensured that there was a basis for the damages specified in the default judgment.” Transatl. Marine Claims Agency, Inc., 109 F.3d at 111 (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). The Court concludes here that “a hearing is not necessary, as documents submitted in this action provide a ‘sufficient basis from which to evaluate the fairness' of the damages requested.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *4 (S.D.N.Y. June 15, 2016) (quoting Fustok, 873 F.2d at 40), adopted by 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016).
Plaintiffs have the burden of establishing their entitlement to “damages . . . based on admissible evidence.” House v. Kent Worldwide Mach. Works. Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010). To establish damages upon default, plaintiffs must demonstrate that the “compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.” Greyhound Exhibitgroup, Inc. v. E.L. U.L. Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992).
An employee seeking to recover unpaid wages “‘has the burden of proving that he performed work for which he was not properly compensated.'” Jiao v. Chen, No. 03-CV-165 (DF), 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689 (1946)). “[T]he employee should not speculate, but may rely on his present memory and recollection to carry the burden.” Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341, at *3 (S.D.N.Y. May 14, 2012) (internal citations and quotation marks omitted), adopted by Order dated Aug. 9, 2012 (Dkt. No. 20). Absent “rebuttal by defendants . . . [the employee's] recollection and estimates of hours worked are presumed to be correct.” Kernes v. Global Structures, LLC, No. 15-CV-659 (CM) (DF), 2016 WL 880199, at *6 (S.D.N.Y. Feb. 9, 2016) (internal citations and quotation marks omitted) (alterations in original), adopted by Order dated Mar. 1, 2016 (Dkt. No. 27).
B. Liability
Vazquez alleges a number of Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) violations, including minimum wage, overtime, and “tools of the trade.” Compl. ¶¶ 72-93, 104-06. He also claims that defendants violated the New York spread of hours wage order and its statutory requirements for wage notices and statements. Compl. ¶¶ 94-103.
Because no liability findings were made at the time the default judgment motion was granted, see Dkt. No. 61, the Court first considers whether Vazquez has established defendants' liability. See, e.g., Antetokounmpo v. Costantino, No. 21-CV-2198 (JMF) (JLC), 2021 WL 5916512, at *2 (S.D.N.Y. Dec. 15, 2021) (considering liability first), adopted by 2022 WL 36232 (Jan. 4, 2022). As discussed above, the Court accepts the allegations in Vazquez's complaint and in his inquest submissions as true for liability purposes.
There is no applicable statute of limitations defense here, as Vazquez's employment began on approximately July 1, 2017 and he filed the complaint on May 1, 2019. Vazquez Decl. ¶ 9; Dkt. No. 1; see also NYLL § 663(3); 29 U.S.C. § 255(a) (six-year statute of limitations under NYLL; two or three-year statute of limitations under FLSA).
Vazquez alleges that “[a]t all relevant times, [d]efendants were [his] employers within the meaning of the FLSA and New York Labor Law.” Compl. ¶ 29. Defendants operated a restaurant, grossed more than $500,000 each year from 2017 to 2019, Compl. ¶ 31, and “engaged in interstate commerce” using numerous items on a daily basis that were “produced outside the State of New York.” Compl. ¶ 32. Vazquez further alleges that “[d]efendants had the power to hire and fire . . . [him], controlled the terms and conditions of employment, and determined the rate and method of any compensation in exchange for . . . [his] services.” Compl. ¶30. Such allegations, together with defendants' default, sufficiently establish that Bkuk 10 Corp. and Besim Kukaj were Vazquez's “‘employer[s]' for purposes of [the] FLSA and NYLL,” and “therefore impose joint and several liability” on each defendant. Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 686 (S.D.N.Y. 2011) (citing Shim v. Millennium Grp., LLC, No. 08-CV-4022 (FB) (VVP), 2010 WL 409949, at *2 (E.D.N.Y. Jan. 27, 2010) (on default judgment, finding both individual defendants and corporation liable under FLSA where complaint contained allegations of actions taken collectively by defendants)); Moon v. Kwon, 248 F.Supp.2d 201, 237 (S.D.N.Y. 2002) (corporate officer considered employer under FLSA jointly and severally liable with corporation).
1. Defendants are Liable for Unpaid Minimum Wages
a. Legal Standard
The FLSA and NYLL require employers to pay employees a statutory minimum wage for the first 40 hours they work each week. See 29 U.S.C. §§ 206(a)(1), 207(a)(1); 12 N.Y.C.R.R. §§ 146-1.2, 146-1.4. 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). Absent “rebuttal by defendants . . . [the employee's] recollection and estimates of hours worked are presumed to be correct.” Kernes v. Global Structures, LLC, No. 15-CV-659 (CM) (DF), 2016 WL 880199, at *6 (S.D.N.Y. Feb. 9, 2016) (internal citations and quotation marks omitted) (alterations in original). An employer is liable for unpaid minimum wages if the plaintiff's “regular rate” of pay was less than the applicable minimum wage. See, e.g., Tambriz v. Taste & Sabor LLC, 577 F.Supp.3d 314, 325 (S.D.N.Y. 2021), adopted by 2022 WL 282918 (Jan. 31, 2022). Under NYLL, a restaurant employee's regular rate is calculated “by dividing the employee's total weekly earnings . . . by the lesser of 40 hours or the actual number of hours worked by that employee during the work week.” Id. at 325 (quoting 12 N.Y.C.R.R. § 146-3.5(b)). Courts then compare the regular rate to the minimum wage to determine if the employee has been underpaid. Id. (citations omitted).
b. Application
Vazquez alleges that defendants failed to pay him minimum wage throughout his employment, and that “[f]or approximately three weeks, [d]efendants did not pay [him] any wages for his work.” Compl. ¶¶ 46, 77. Vazquez was employed by defendants for three years, from 2017 to 2019. In 2017, the applicable minimum wage for large employers was $11 per hour; in 2018 it was $13 per hour; and in 2019 it was $15 per hour. NYLL § 652(1)(a)(i); see also 29 U.S.C. § 218(a) (if state minimum wage exceeds federal, state wage applies). As Vazquez worked more than 40 hours per week throughout his term of employment, his regular rate of pay is equal to his weekly pay divided by 40. See N.Y.C.R.R. § 146-3.5(b). Therefore, Vazquez's regular rate of pay was $28 from July 1, 2017 to June 30, 2018; $28.75 from July 1, 2018 to September 30, 2018; and $11.25 from October 1, 2018 to January 30, 2019. Vazquez's regular rate of pay thus fell below the minimum wage during the period of October 1, 2018 to January 30, 2019 because he was being paid less than $13.00 in 2018 and less than $15.00 in 2019. That Vazquez's regular rate was below the minimum wage establishes that defendants violated NYLL's minimum wage requirements between October 1, 2018 and January 30, 2019, and are therefore liable for unpaid wages to Vazquez during that period. Defendants are not liable, however, for unpaid wages from July 2017 to September 30, 2018 because Vazquez's regular rate of pay was more than the minimum wage during that time period.
In New York City, the minimum wage for large employers-those with 11 or more employees-is higher than the rate for small employers. NYLL § 652(1)(a). In his submissions to the Court, Vazquez does not indicate the number of employees that worked for defendants during the relevant time period. However, a reasonable inference can be made that the number of employees was 11 or more. See, e.g., Tambriz, 577 F.Supp.3d at 326 (large employer rate applied to case brought by three restaurant employees after considering operational needs of restaurant and hours of activity). Moreover, courts give plaintiffs in similar situations the benefit of the doubt and apply the minimum wage rate for “large employers.” See, e.g., Canaveral v. Midtown Diner NYC, Inc., No. 19-CV-635 (GBD) (JLC), 2019 WL 4195194, at *3 (S.D.N.Y. Sept. 5, 2019) (“[I]n light of defendants' default, the Court recommends employing the minimum wage for large employers as [plaintiff] has requested.”) (citations omitted), adopted by 2019 WL 6170058 (Nov. 19, 2019). Vazquez's damages should therefore be calculated using the minimum wage for large employers.
Vazquez's weekly pay between July 1, 2017 and June 30, 2018 was $1,120 per week which, when divided by 40, equals a regular rate of pay of $28. Compl. ¶ 48. His weekly pay from July 1, 2018 to September 30, 2018 was $1,150 per week, which, divided by 40, equals a regular rate of pay of $28.75. Id. ¶ 44. And his weekly pay from October 1, 2018 to January 30, 2019 was $450 per week, which, divided by 40, equals a regular rate of pay of $11.25. Id. ¶ 45.
2. Defendants are Liable for Unpaid Overtime Wages
a. Legal Standard
Federal and State law require employers to pay employees time and a half for time worked in excess of 40 hours a week. See 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 146-1.4. To establish a claim for unpaid overtime, a plaintiff must prove: (1) he worked more than 40 hours in a week, (2) with the employer's actual or constructive knowledge, and (3) he was not properly compensated. See, e.g., Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011); Tambriz, 577 F.Supp.3d at 327 (citing Lundy v. Catholic Health System Of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013)).
b. Application
Vazquez alleges he worked more than 40 hours per week throughout his entire employment but never received overtime compensation because of his fixed weekly rate. Compl. ¶¶ 39, 43-45, 81; Vazquez Decl. ¶¶ 14, 18-20, 22. Therefore he “has adequately stated a claim for unpaid overtime wages under the FLSA and . . . NYLL.” Victor v. Sam's Deli Grocery Corp., No. 19-CV-2965 (SLC), 2022 WL 3656312, at *10 (S.D.N.Y. Aug. 25, 2022); see Suriel v. Cruz, No. 20-CV-8442 (VSB) (SLC), 2022 WL 1750232, at *13 (S.D.N.Y. Jan. 10, 2022) (plaintiff stated claim for unpaid overtime wages), adopted by 2022 WL 1751163 (May 31, 2022); Agureyev v. H.K. Second Ave. Rest., Inc., No. 17-CV-7336 (SLC), 2021 WL 847977, at *7 (S.D.N.Y. Mar. 5, 2021) (same); Mondragon v. Keff, No. 15-CV-2529 (JPO) (BCM), 2019 WL 2551536, at *9 (S.D.N.Y. May 31, 2019) (same), adopted by 2019 WL 2544666 (June 20, 2019).
3. Defendants are Liable for Unpaid Spread of Hours Pay
a. Legal Standard
Under NYLL, employees are entitled to receive “spread of hours” pay-“one hour's pay at the basic minimum hourly wage rate” for any workday that lasts longer than 10 hours. 12 N.Y.C.R.R. § 142-2.4(a); see also 12 N.Y.C.R.R; § 146-1.6(a) (“On each day on which the spread of hours exceeds 10, an employee shall receive one additional hour of pay at the basic minimum hourly rate.”). “The spread of hours regulations apply to all employees in restaurants regardless of a given employee's regular rate of pay.” Victor, 2022 WL 3656312, at *11 (cleaned up).
b. Application
Vazquez claims that from approximately July 1, 2017 to September 30, 2018 he worked 15 hours on Mondays, Tuesdays, Thursdays and Sundays; 16 hours on Fridays; and 16.5 hours on Saturdays-more than ten hours a day for six days a week. See Compl. ¶¶ 40-41; Vazquez Decl. ¶ 15. Defendants are therefore liable for unpaid spread of hours pay for the days Vazquez worked between July 1, 2017 and September 30, 2018. Defendants are not liable for unpaid spread of hours pay for the days Vazquez worked between October 1, 2018 and January 30, 2019, the period when he did not work more than ten hours per day. See id. ¶ 16.
4. Defendants are Liable for Violations of Statutory Wage Notices and Statements
a. Legal Standard
NYLL requires employers to provide their employees notice of certain information in English and in the employee's primary language at the time of hiring. NYLL § 195(1)(a). Required information includes:
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances . . . the name of the employer; any ‘doing business as' names used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information . . . material and necessary.Id. It also requires employers to provide a wage statement with every payment of wages, listing
the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage.§ 195(3). An employer who fails to provide such notices violates NYLL.
b. Application
Vazquez alleges that throughout his employment, he never received the notice or wage statements required by NYLL. See Compl. ¶¶ 53-55; Vazquez Decl. ¶¶ 24-27. Vazquez's allegations, in conjunction with the default judgment against defendants, sufficiently establish that defendants violated NYLL wage notice and statement requirements. See Victor, 2022 WL 3656312, at *12 (“Defendants are again deemed to have admitted these allegations by their default, and therefore, . . . [the plaintiff] is entitled to recover statutory damages under §§ 195(1) and 195(3).”) (citing Suriel v. Cruz, No. 20-CV-8442 (VSB) (SLC), 2022 WL 1750232, at *14 (S.D.N.Y. Jan. 10, 2022), adopted by 2022 WL 1751163 (May 31, 2022)).
5. Defendants are Not Liable for “Tools of the Trade” Violation
a. Legal Standard
Federal and State law require that employers “compensate employees for the purchase and maintenance of required uniforms if the employees' expenditures for these purposes would reduce their wages to below minimum wage.” Cocoletzi v. Fat Sal's Pizza II, Corp., No. 15-CV-2696 (CM) (DF), 2019 WL 92456, at *7 (S.D.N.Y. Dec., 6, 2018), adopted (Jan. 3, 2019), order clarified 2019 WL 5727472 (Jan. 7, 2019). However, “clothing that may be worn as part of an employee's ordinary wardrobe” is not eligible for reimbursement. 12 N.Y.C.R.R. § 146-3.10; see also 29 C.F.R. § 531.35; Cocoletzi, 2019 WL 92456, at *7 (citing Hernandez v. Spring Rest Group, LLC, No. 17-CV-6084 (AJN), 2018 WL 3962832, at *4 (S.D.N.Y. Aug. 17, 2018)).
b. Application
Vazquez claims that the $30 uniform he was required to buy was a tool of the trade that should be reimbursed. Compl. ¶ 105; Vazquez Decl. ¶ 28. In order to qualify for reimbursement of his uniform, Vazquez must allege facts sufficient to prove that it was specifically required for his work and did not consist of ordinary clothing that could be worn as part of his wardrobe. See 29 C.F.R. § 531.35; 12 N.Y.C.R.R. § 146-3.10; Pinzon v. 168 8th Ave. Food Corp., No. 20-CV-6156 (PAE) (SN), 2021 WL 4894678, at *5 (S.D.N.Y. July 14, 2021) (plaintiff must include specific details alleging what uniform was comprised of, if it bore company logo, or otherwise was not of a “general type of ordinary basic street clothing”), adopted by 2021 WL 4894614 (Sept. 1, 2021) (internal quotations and citations omitted); see also Hernandez, 2018 WL 3962832 at *4.
Vazquez did not submit any information to the Court about what his uniform was comprised of or when he purchased it, so there is no way to ascertain if his uniform was specifically required for his work or how his uniform costs relate to his weekly wage. See Hernandez, 2018 WL 3962832, at *4 (“Equally critical, plaintiffs have failed to state how . . . [uniform] costs relate to their weekly wage.”) (quoting Guan Ming Lin v. Benihana Nat'l Corp., 755 F.Supp.2d 504, 512 (S.D.N.Y. 2010)). Defendants are therefore not liable for any reimbursement for “tools of the trade” expenses.
* * *
In sum, the defaulting defendants' liability is established for unpaid minimum and overtime wages, unpaid spread of hours pay, and statutory wage notice and statement damages, but not for reimbursement of “tools of the trade.”
C. Damages
Vazquez seeks damages for unpaid minimum wages, overtime compensation and spread of hours pay; liquidated damages; statutory damages for wage notice and wage statement violations; and pre- and post- judgment interest. See Pl. Mem. ¶¶ 36, 86; Declaration of William K. Oates dated May 13, 2022 (“Oates Decl.”), Dkt. No. 65, Ex. K. Where there is liability under both the FLSA and NYLL, the plaintiff recovers “under the statute which provides the greatest amount of damages.” Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14-CV-7850 (VEC) (DF), 2016 WL 8650464, at *7 (S.D.N.Y. Nov. 7, 2016), adopted by 2017 WL 1194682 (Mar. 30, 2017); see also e.g., Salazar v. 203 Lena Inc., No. 16-CV-7743 (VB) (JLC), 2020 WL 5627118, at *4 (S.D.N.Y. Sept. 18, 2020) (NYLL applied to damages award because it provides greater relief), adopted by 2020 WL 6257158 (Oct. 23, 2020). As NYLL provides for greater relief, it applies to the calculation of damages in this case.
1. Unpaid Minimum Wage and Overtime
a. Legal Standard
NYLL entitles prevailing plaintiffs to “the full amount of wages owed, not just the statutory minimum wage for the hours worked.” Mendoza v. Cavallo's of Chelsea, Inc., No. 18-CV-11147 (VSB) (DF), 2022 WL 2531343, at *5 (S.D.N.Y. Apr. 12, 2022)), adopted by 2022 WL 4387494 (Sept. 22, 2022).
b. Application and Calculation
Vazquez seeks damages for unpaid minimum wages and overtime compensation in the amount of $147,148.56. Based on the following, Vazquez should be awarded the $147,148.56 he requests in unpaid minimum wages and overtime compensation.
Vazquez provides a combined figure to request both unpaid minimum wage and overtime owed for the relevant time period. Pl. Mem. ¶¶ 39, 86. This report and recommendation calculates damages for unpaid minimum wage and overtime separately to verify the total amount to which Vazquez is entitled.
i. Unpaid Minimum Wages
As discussed above, Vazquez's regular rate of pay only fell below the minimum wage during the period of October 1, 2018 to January 30, 2019. Therefore, defendants are only liable for minimum wage violations during that time period. Vazquez should thus be awarded unpaid minimum wage as follows:
Pay Period
Large Employer Minimum Wage Rate
Actual Rate
Underpayment per Hour
Underpayment per Week (Underpayment per Hour X 40 Hours)
Weeks in Period
Total Unpaid Minimum Wages (Underpayment per Week X Weeks in Period)
10/1/2018 - 12/30/2018
$13.00
$11.75
$1.75
$70
13
$910
12/31/2018 - 1/30/2019
$15.00
$11.75
$3.75
$150
4
$600
TOTAL UNPAID MINIMUM WAGE
$1,510
In addition to the $147,148.56, Vazquez also requests $1,350 in “nonpayment of wages” because he asserts that defendants did not pay him any wages for approximately three weeks. Vazquez Decl. ¶¶ 21, 30; Pl. Mem. ¶ 86. However, because Vazquez does not indicate when the period of non-payment occurred, the Court is unable to determine his regular rate of pay at the time and cannot “ascertain the amount of damages with reasonable certainty.” Credit Lyonnais, 183 F.3d at 155. The Court is therefore unable to award damages for the alleged three weeks of non-payment.
ii. Overtime Compensation
Overtime wages are “calculated by multiplying [an employee's] regular hourly rate (or the minimum wage rate, if his regular hourly rate falls below the minimum wage) by one and one-half. That rate then is multiplied by the number of hours in excess of forty hours the employee worked each week.” Rosendo v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL 1600057, at *4 (S.D.N.Y. Apr. 7, 2015), adopted by 2015 WL 4557147 (July 28, 2015). As Vazquez's regular rate exceeded the minimum wage rate between July 1, 2017 and September 30, 2018, his overtime compensation for that period is his regular pay multiplied by one and one-half. For the period of October 1, 2018 to January 30, 2019-when Vazquez's regular rate fell below the minimum wage-his overtime compensation is the statutory minimum wage multiplied by one and one-half. See Vazquez Decl. ¶¶ 18-20. Vazquez's award for unpaid overtime compensation should therefore be calculated as follows:
Pay Period
Large Employer Min. Wage Rate
Actual Rate
Overtime Rate
Overtime Hours Per Week
Overtime Owed per Week
Weeks in Period
Total owed Overtime (Overtime Owed per Week X Weeks in Period)
7/1/2017 - 12/30/2017
$11.00
$28
$42.00
52.5
$2,205.00
26
$57,330.00
12/31/2017 - 6/30/2018
$13.00
$28
$42.00
52.5
$2,205.00
26
$57,330.00
7/1/2018 - 9/30/2018
$13.00
$28.75
$43.13
52.5
$2,264.06
13
$29,432.81
10/1/2018 - 12/30/2018
$13.00
$11.75
$19.50
4.5
$87.75
13
$1,140.75
12/31/2018 - 1/30/2019
$15.00
$11.75
$22.50
4.5
$101.25
4
$405.00
TOTAL UNPAID OVERTIME COMPENSATION
$145,638.56
Vazquez should be awarded $145,638.56 in unpaid overtime compensation.
* * *
In sum, Vazquez is owed $147,148.56 in unpaid wages ($1,510) and overtime compensation ($145,638.56).
2. Spread of Hours
a. Legal Standard
Vazquez is further entitled to spread of hours pay-“one hour's pay at the basic minimum hourly wage rate”-for any workday that lasts longer than ten hours. 12 N.Y.C.R.R. § 142-2.4(a) . “Spread of hours compensation is calculated by multiplying the minimum wage by the number of days an employee worked more than ten hours.” Angamarca v. Pita Grill 7 Inc., No. 11-CV-7777 (JGK) (JLC), 2012 WL 3578781, at *7 (S.D.N.Y. Aug. 2, 2012); see also Mendoza, 2022 WL 2531343, at *13 (“Even though Plaintiff was paid more than the minimum wage as his base rate of pay, he would have been entitled to spread-of-hours pay . . . as he was a restaurant worker, and as he consistently worked for more than 10 hours per day.”) (citations omitted).
b. Application and Calculation
Vazquez is entitled to spread of hours compensation from July 1, 2017 until September 30, 2018, when he worked more than ten hours a day, six days per week (15 hours on Mondays, Tuesdays, Thursdays, Fridays and Sundays; 16 hours on Fridays; 16.5 hours on Saturdays). See Vazquez Decl. ¶ 15. Vazquez's award for spread of hours compensation should be calculated as follows:
Pay Period
Large Employer Min. Wage rate
Days per Week Over 10 Hours
Spread of Hours Pay Per Week (Min. Wage X Days per Week Over 10 Hours)
Weeks in Period
Total Spread Hour Damages (Spread of Hours Pay per Week X Number of Weeks)
7/1/2017 - 12/30/2017
$11.00
6
$66.00
26
$1,716.00
12/31/2017 - 6/30/2018
$13.00
6
$78.00
26
$2,028.00
7/1/2018 - 9/30/2018
$13.00
6
$78.00
13
$1,014.00
10/1/2018 - 12/30/2018
$13.00
0
$0
13
$0.00
12/31/2018 - 1/30/2019
$15.00
0
$0
4
$0.00
TOTAL UNPAID SPREAD OF HOURS PAY
$4,758.00
Vazquez should be awarded $4,758.00 in damages for unpaid spread of hours pay.
3. Liquidated Damages
a. Legal Standard
NYLL entitles an employee to liquidated damages “equal to [100%] of the total of such underpayments 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.” §§ 198(l-a), 663(1); 29 U.S.C. §§ 216(b), 260. “[D]efaulting defendants . . . obviously [have] made no showing of good faith.” Schalaudek v. Chateau 20th St. LLC, No. 16-CV-11 (WHP) (JLC), 2017 WL 729544, at *10 (S.D.N.Y. Feb. 24, 2017) (quoting Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *18 (S.D.N.Y. Sept. 8, 2016), adopted as modified by 2017 WL 1968677 (S.D.N.Y. May 11, 2017)).
b. Application and Calculation
Because defendants defaulted, Vazquez is entitled to liquidated damages for all of his unpaid wages-“unpaid minimum wage, unpaid overtime, and unpaid spread-of-hours.” See, e.g., Gomez v. NYHS Design Inc., No. 20-CV-4174 (ALC) (GWG), 2022 WL 4284143, at *4 (S.D.N.Y. Sept. 16, 2022) (awarding all three), adopted by 2022 WL 6175174 (Oct. 6, 2022). Defendants therefore owe $151,906.56 to Vazquez in liquidated damages.
This amount represents the total underpayment owed to Vazquez, which equals the sum of unpaid minimum wages ($1,510.00), plus unpaid overtime compensation ($145,683.56), plus unpaid spread of hours pay ($4,758.00).
4. Record Keeping and Wage Statement Violations
a. Legal Standard
“Employees who were not provided a wage notice within ten business days of their first day of work can recover damages of ‘$50 for each workday that a violation occurs or continues to occur, not to exceed $5,000' [(100 days)] and employees can recover ‘$250 for each workday that a wage statement violation occurs or continues to occur, not to exceed $5,000'” (20 days). See Canaveral, 2019 WL 4195194, at *5-6 (quoting Pastor v. Alice Cleaners, Inc., No. 16-CV-7264 (JLC), 2017 WL 5625556, at *5 (S.D.N.Y. Nov. 21, 2017)); see also NYLL § 198(1-b), (1-d).
b. Application and Calculation
Vazquez alleges that he never received wage notice or wage statements for the duration of his employment-well over the period needed to reach the statutory maximum damages. See Compl. ¶¶ 53-55, 102; Vazquez Decl. ¶¶ 24-27. Vazquez is therefore entitled to the maximum statutory damages of $5,000 for each claim, for a total of $10,000.00. See, e.g., Victor, 2022 WL 3656312, at *13.
5. Prejudgment Interest
a. Legal Standard
Vazquez also seeks prejudgment interest. Vazquez Decl. ¶ 30; Pl. Mem. ¶¶ 77-81, 86. “[C]ourts typically award prejudgment interest on damages for NYLL violations.” Pineda v. Frisolino, Inc., No. 15-CV-3774 (GBD), 2017 WL 3835882, at *13 (S.D.N.Y. Aug. 29, 2017) (quoting McLean v. Garage Mgmt. Corp., No. 09-CV-9325 (DLC), 2012 WL 1358739, at *10 (S.D.N.Y. Apr. 19, 2012)). Prejudgment interest is available only for compensatory damages, not liquidated damages or damages recovered due to violations of wage statement or wage notice provisions. See Salustio v. 106 Columbia Deli Corp., 264 F.Supp.3d 540, 557 (S.D.N.Y. 2017) (collecting cases). A plaintiff is therefore “entitled to prejudgment interest on his damages for unpaid base wages, unpaid overtime, and unpaid spread-of-hours compensation.” Mendoza, 2022 WL 2531343, at *15.
New York law sets the prejudgment interest rate at nine percent per year. N.Y. C.P.L.R. § 5004. Courts in this District generally calculate prejudgment interest from the midpoint date between the start of the damages period up to and including the date judgment is entered. See, e.g., Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV-3602 (JGK) (JLC), 2018 WL 4844018, at *7 (S.D.N.Y. Oct. 5, 2018) (quoting Xochimitl, 2016 WL 4704917, at *18), adopted by 2018 WL 6173713 (Nov. 23, 2018).
b. Application and Calculation
For Vazquez, a reasonable intermediate date is April 16, 2018, the midpoint between the first time (July 1, 2017) and the last time (January 30, 2019) he was denied overtime wages. A nine percent interest rate should therefore be applied to the balance of $151,906.56 (the sum of unpaid minimum wages, overtime compensation, and spread of hours pay) from April 16, 2018 until the date that a final judgment is entered. See, e.g., Canaveral, 2019 WL 4195194, at *6; Soto, 2018 WL 4844018, at *7.
6. Post-Judgment Interest
“[P]laintiffs are entitled to post-judgment interest on all money awards as a matter of right.” Sanchez v. Jyp Foods Inc., No. 16-CV-4472 (JLC), 2018 WL 4502008, at *14 (S.D.N.Y. Sept. 20, 2018); see also 28 U.S.C. § 1961(a) (“Interest shall be allowed on any money judgment in a civil case recovered in a district court.”). “Post-judgment interest is calculated from the date of the 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 judgment.” Morales, 2016 WL 4084159, at *11 (citing 28 U.S.C. § 1961(a)). Vazquez is therefore “entitled to post-judgment interest on all sums awarded, including attorney's fees and costs, commencing when the Clerk of the Court enters judgment until the date of payment.” Canaveral, 2019 WL 4195194, at *7.
D. Attorneys' Fees and Costs
1. Attorneys' Fees
Vazquez seeks $6,315 in attorneys' fees. Oates Decl. ¶¶ 22-23. Both the FLSA and NYLL allow prevailing plaintiffs to receive reasonable attorneys' fees and costs. 29 U.S.C. § 216(b); NYLL § 198(l-a). A reasonable fee is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (“the product of a reasonable hourly rate and the reasonable number of hours required by the case[ ]creates a ‘presumptively reasonable fee.'”). A reasonable fee must be calculated from an application for fees and costs supported by contemporaneous time records that specify “for each attorney, the date, the hours expended, and the nature of the work done.” Canaveral, 2019 WL 4195194, at *7 (quoting N.Y.State Assn'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). Courts ultimately have broad discretion in determining reasonable attorneys' fees. See Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (“We afford a district court considerable discretion in determining what constitutes reasonable attorney's fees in a given case . . .”) (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir.2008); Hensley, 461 U.S. at 437).
a. Reasonable Hourly Rates
i. Legal Standard
“The reasonable hourly rate is the amount ‘a reasonable, paying client would be willing to pay,' which varies by practice area and location.” Acharya v. Solanki, No. 18-CV-8010 (MKV) (JLC), 2022 WL 1144696, at *6 (S.D.N.Y. Apr. 12, 2022), adopted by 2022 WL 1239585 (Apr. 27, 2022) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). The reasonable rate is typically determined based on prevailing market rates for “similar services by lawyers of reasonably comparable skill, experience, and reputation.” Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). “To make this determination, a court may ‘rely on its own knowledge of local, comparable rates.'” Schalaudek, 2017 WL 729544, at *12 (quoting Yuquilema v. Manhattan's Hero Corp., No. 13-CV-461 (WHP) (JLC), 2014 WL 4207106, at *3-4 (S.D.N.Y. Aug. 26, 2014), adopted as modified by 2017 WL 1968677 (May 11, 2017)).
ii. Application and Calculation
Vazquez's requested attorney rates are $450.00 per hour for Michael Faillace, $400.00 per hour for William K. Oates, $400.00 per hour for Joshua Androphy, and $125.00 per hour for paralegal work. Oates Decl. ¶ 25.
Courts in this District “generally award experienced wage-and-hour attorneys between $300.00 to $400.00 per hour.” Victor, 2022 WL 3656312, at *14. Vazquez's submissions highlight Faillace's experience and note that courts “have routinely held that hourly fees of $450 or even $500 for counsel with Mr. Faillace's level of experience . . . and expertise are reasonable.” Oates Decl. ¶ 26. However, the submissions fail to mention Faillace's suspension
from practice for two years by the Grievance Committee of the Southern District of New York on November 9, 2021,
as a result of repeatedly taking fees from settlements in excess of the amounts awarded to him by court order (effectively stealing from his clients' recoveries); refusing to follow client directions as to the amounts they wanted to settle the case; and of misrepresenting facts relating to these practices to the Southern District Committee.Victor, 2022 WL 3656312, at *14-15 (quoting Garcia Lazaro v. Best Fish Mkt. Corp., No. 21-CV-5305 (BMC), 2022 WL 280768, at *2 (E.D.N.Y. Jan. 29, 2022)). Another court in this District recently found that “[i]n light of Faillace's suspension . . . any recovery for his time spent on [plaintiff's] case would not be reasonable.” Id. at 15. Accordingly, I recommend awarding no fees for the work done by Faillace.
Courts have determined $350 to be a reasonable hourly rate for both Oates and Androphy, the remaining attorneys who worked on the case. See, e.g., Silva v. Legend Upper W. LLC., 590 F.Supp.3d 657, 665 (S.D.N.Y. 2022) (Oates); Victor, 2022 WL 3656312, at *15 (Androphy). I therefore recommend awarding Oates and Androphy each a rate of $350 per hour. Finally, “[f]or paralegals, hourly rates of $100.00 to $150.00 are typical for awards in this District.” Victor, 2022 WL 3656312, at *15 (citing Inga v. Nesama Food Corp., No. 20-CIV-0909 (ALC) (SLC), 2021 WL 3624666, at *14 (S.D.N.Y. July 30, 2021), adopted by 2021 WL 3617191 (Aug. 16, 2021)). Vazquez's requested paralegal hourly rate of $125 is therefore reasonable and should be awarded.
b. Reasonable Hours
i. Legal Standard
“After determining the appropriate hourly billing rate, the [C]ourt calculates the hours reasonably expended.” Pastor, 2017 WL 5625556, at *8 (quoting Maldonado, 2012 WL 1669341, at *13). “In evaluating the reasonableness of hours expended, courts consider ‘not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” O.R. v. N.Y.C. Dep't of Ed., 340 F.Supp.3d 357, 366-67 (S.D.N.Y. 2018) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1999)). 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.” De La Cruz Moreno v. Happy Angel Nail Spa Inc., No. 15-CV-10078 (LGS) (GWG), 2019 WL 2438966, at *9 (S.D.N.Y. June 12, 2019) (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)), adopted by 2019 WL 2717153 (June 28, 2019). “In determining what fee is reasonable, the court takes account of claimed hours that it views as ‘excessive, redundant, or otherwise unnecessary.'” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434).
ii. Application and Calculation
In support of Vazquez's request for attorneys' fees, CSM Legal, P.C. (“CSM”), the law firm representing Vazquez, provided the Court with a copy of its contemporaneous time records. See Oates Decl., Ex. L at 1-2. These records include the hours expended, dates of work, and brief descriptions of the tasks performed. Id. In total, and without including the 1.2 hours billed by Faillace, CSM billed 18.7 hours to this matter, id., a reasonable number of hours. See, e.g., Victor, 2022 WL 3656312, at *16 (28.5 hours reasonable); Xochimitl, 2016 WL 4704917, at *21 (14.80 hours reasonable); cf. Canaveral, 2019 WL 4195194, at *9 (38.95 hours not reasonable). Therefore, Vazquez should be awarded attorneys' fees for the full number of hours worked-8.6 hours for Oates, 3.9 hours for Androphy, and 6.2 hours for paralegal work-except for the 1.2 hours requested for Faillace, as discussed above.
Accordingly, attorneys' fees should be awarded in the following amounts:
Timekeeper
Requested Rate
Awarded Rate
Reasonable Hours
Fees Awarded
Oates
$400
$350
8.6
$3,010
Androphy
$400
$350
3.9
$1,365
Paralegal
$125
$125
6.2
$775
TOTAL ATTORNEYS' FEES
18.7
$5,150.00
2. Costs
a. Legal Standard
“An employee who prevails in a wage-and-hour action is entitled to recover costs,” but only if substantiated with documents such as invoices or receipts. Xochimitl, 2016 WL 4704917, at *22 (citing 29 U.S.C. § 216(b); NYLL § 663(1)); Sanchez, 2018 WL 4502008, at *17 (“[The] requesting party must substantiate the request for costs.”) (quoting Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016)); see also, e.g., Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017) (denying costs where movant did not provide substantiation “such as invoices or receipts”), adopted by 2017 WL 3084408 (July 18, 2017). However, courts are willing to award costs without documentation for routine expenditures like filing fees. See, e.g., Soto, 2018 WL 4844018, at *9; Pastor, 2017 WL 5625556, at *9.
b. Application and Calculation
Vazquez seeks $619 in costs, including a filing fee of $400 and additional fees associated with service of process. Oates Decl. ¶ 24.
The Court takes judicial notice that the filing fee is $400, which is sufficient for an award in that amount. See, e.g., Soto, 2018 WL 4844018, at *9. For the service fees, Vazquez submitted an invoice from a process-server indicating that his attorneys paid $69. See Oates Decl., Ex. M. Vazquez should therefore be awarded the $400 filing fee and the $69 fee associated with service of process for which he provided documentation.
Vazquez did not provide any documentation to support the additional $150 in service fees that he requests. See Oates Decl., Ex. L at 2-3. As “[i]t is Plaintiffs burden to demonstrate that the litigation costs sought were reasonably incurred” and to submit “supporting documentation,” Mendoza, 2022 WL 2531343, at *17, there is no basis to award the additional $150 requested. Vazquez should thus be awarded a total of $469 in costs.
III. CONCLUSION
For the reasons stated herein, the Court should award Vazquez $313,813.13 in damages (consisting of unpaid minimum and overtime wages, and liquidated and statutory damages); prejudgment interest on $151,906.56 of the damages in an amount to be calculated upon entry of judgment; attorneys' fees and costs in the amount of $5,619.00; and post-judgment interest on all sums.
The principal amount of $151,906.56 is the total amount of underpayment owed to Vazquez, consisting of the sum of all unpaid minimum and overtime wages ($147,148.56), plus unpaid spread of hours pay ($4,758.00).
Moreover, Vazquez has requested
that the judgment provide that if any amounts remain unpaid upon the expiration of ninety days following the issuance of the judgment or ninety days after the expiration of the time to appeal and no appeal is then pending, whichever is later, then the total amount of judgment under the NYLL shall automatically increase by fifteen percent (15%), as required by NYLL § 198(4).Pl. Mem. ¶ 81. Because damages are to be awarded under NYLL, the amount of the judgment should automatically increase if the conditions set forth in § 198(4) are met. See, e.g., Shanfa Li v. Chinatown Take-Out Inc., No. 16-CV-7787 (JCM), 2019 WL 3715086, at *2 (S.D.N.Y. Aug. 7, 2019), aff'd, 812 Fed.Appx. 49 (2d Cir. 2020); Hernandez v. Jrpac Inc., No. 14-CV-4176 (PAE), 2016 WL 3248493, at *36 (S.D.N.Y. June 9, 2016).
PROCEDURE FOR FILING OBJECTIONS
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 Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Judge Analisa Torres and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See 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).