Opinion
20-CV-119 (JGK) (VF)
03-20-2023
JOEL VENTURA, on behalf of himself and all others similarly situated, Plaintiff, v. PUTNAM GARDENS PARKING CORP. and JOHN GERASOVLIS, Defendants.
TO THE HONORABLE JOHN G. KOELTL, United States District Judge.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
Plaintiff Joel Ventura brought this action on behalf of himself and others similarly situated against Defendants Putnam Gardens Parking Corporation (“Putnam Gardens”) and John Gerasovlis to recover unpaid wages, overtime wages, and other damages arising from Defendants' violations of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and New York state labor regulations. After entry of a default judgement against Putnam Gardens, the Honorable John G. Koeltl referred this action for a Report and Recommendation on damages. Putnam Gardens did not file an opposition to Plaintiff's motion for a default judgment, nor did Putnam Gardens appear at any point in the damages inquest proceeding. After review of the submissions, I respectfully recommend that Plaintiff be awarded damages as set forth in detail below.
Defendant John Gerasovlis was dismissed from this action on July 30, 2020. See Order, ECF No. 19.
FACTUAL AND PROCEDURAL BACKGROUND
The facts recounted here are established by the evidence submitted in support of this inquest and the allegations in the Complaint, which are deemed admitted except as to damages, because of Putnam Gardens' default. See Finkel v. Romanowicz, 577 F.3d 79, 83-84 (2d Cir. 2009).
Plaintiff Joel Ventura was employed by Putnam Gardens as a garage attendant from approximately April 2008 until around April 16, 2019. See Compl. ¶¶ 1, 4-5, 17, 30, ECF No. 1. Defendant Putnam Gardens, a parking garage, is a New York State corporation located at 3815 Putnam Avenue in Bronx, New York. Id. ¶¶ 2, 20, 22. Defendant John Gerasovlis is the owner of Putnam Gardens. Id. ¶¶ 3, 21, 23. Putnam Gardens is a business engaged in interstate commerce with gross sales exceeding $500,000 per year. Id. ¶¶ 28-29. Throughout the relevant period, Defendants had the power to hire and fire Ventura, controlled the terms and conditions of his employment, and determined his rate and method of compensation. Id. ¶¶ 21, 24-26.
Throughout his employment, Ventura worked six days a week, starting at approximately 12 p.m. and ending at around 12 a.m. or 1 a.m., for an hourly rate that varied between $8.00, $9.00, and $10.00 per hour. Id. ¶¶ 34-40; see also Declaration of Joel Ventura (“Ventura Decl.”) ¶ 6, ECF No. 44. Ventura submitted a sworn declaration in connection with his motion for a default judgment. In his sworn declaration, Ventura attests that he was paid a flat rate of $98 per day, “from 2008 until 2017.” Ventura Decl. ¶ 4. “From 2017 until 2019,” Ventura attests that he was paid a flat rate of $700 per week. Id. ¶ 5. In the complaint, Ventura alleges that he was not permitted to retain any tips received from customers. Compl. ¶ 46.
During his shift, Ventura was not provided any rest or meal breaks. Compl. ¶ 47; Ventura Decl. ¶ 8. Ventura attests that he was “regularly” required to work past the scheduled end of his shift because the employee relieving him would arrive late, and he was not paid “additional wages” for working past the scheduled end time of his shift. Ventura Decl. ¶¶ 9, 11-13; Compl. ¶¶ 43-45. Defendants never provided any written notification of Ventura's pay rate or regular pay day, and did not provide Ventura with accurate wage statements. Ventura Decl. ¶¶ 14-15; see also Compl. ¶¶ 50-51, 57, 61-62. Additionally, Ventura was paid in cash, and he did not receive any pay stubs with his wages. Compl. ¶¶ 37, 56; Ventura Decl. ¶ 15.
Ventura filed his complaint on January 8, 2020. See ECF No. 1. He seeks unpaid minimum wages under the NYLL, unpaid overtime wages under the FLSA and NYLL, spread-of-hours pay under the NYLL, statutory damages under the NYLL, liquidated damages, prejudgment interest, post-judgment interest, and attorneys' fees and costs. See Compl. ¶¶ 12, 63, 67-91, Prayer for Relief; Declaration of Michael K. Chong (“Chong Decl.”) ¶¶ 2, 11-24, ECF No. 43; Proposed Findings of Fact & Conclusions of Law ¶ 22, ECF No. 42.
Defendant Putnam Gardens was served on May 1, 2020. See Aff of Service, filed May 4, 2020, ECF No. 17. Putnam Gardens failed to answer the complaint, and the Clerk of Court issued a certificate of default on September 25, 2020. See Cert. of Default, ECF No. 25. Ventura attempted to serve Gerasovlis with the complaint but was unsuccessful. See Chong Decl. ¶¶ 7-9. Having failed to serve Gerasovlis, on July 30, 2020, the Court dismissed the complaint as against him without prejudice. See id. ¶ 10; Order, ECF No. 19.
On September 30, 2020, Ventura filed a motion for default judgment against Putnam Gardens. See Mot. for Default Judgment, ECF Nos. 26-28. The motion was served on Putnam Gardens the same day. See Decl. of Service ¶ 4, ECF No. 32. The Honorable John G. Koeltl issued an order granting the motion for default on October 29, 2020. See Order, ECF No. 33. The matter was subsequently referred to the undersigned for an inquest on damages following entry of default judgment. See Order of Reference, ECF No. 34. To date, Putnam Gardens has not responded to Plaintiff's inquest submissions or otherwise appeared in this action. The following recommendations are based on the facts asserted in the Complaint, as well as the evidence presented in Plaintiff's declaration and moving papers submitted in support of the motion for default judgment.
The matter was originally referred to the Honorable Debra C. Freeman on February 1, 2021, and was reassigned to the undersigned on April 30, 2022.
DISCUSSION
In light of Putnam Gardens' default, the Court accepts as true the well-pleaded allegations in the Complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (“When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true.”) (internal citations, alterations, and quotation marks omitted). As to damages, a district court must “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.
Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers and Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (internal quotation marks and citation omitted); see also Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Ventura's submissions have not been contested and the submissions provide all the information needed to determine Ventura's damages. As such, a hearing on the damages inquest is not necessary.
A. Defendant's Liability under the Fair Labor Standards Act and New York Labor Law
1. Statute of Limitations under the FLSA and NYLL
Ventura asserts a cause of action under the FLSA and NYLL for unpaid overtime wages (Compl. ¶¶ 67-70, 76-79) and a claim under the NYLL only for violation of the state's minimum wage requirement (Compl. ¶¶ 71-75). Claims brought under the FLSA must be raised within two years of a non-willful violation or within three years of a willful violation. See Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 674 (S.D.N.Y. 2011) (citing 29 U.S.C. § 255(a)). Willfulness under the FLSA is found where an employer “knew or showed reckless disregard for the matter of whether [the employer's] conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). “[A] defendant's default, in itself, may suffice to support a finding of willfulness.” Santillan v. Henao, 822 F.Supp.2d 284, 297 (E.D.N.Y. 2011) (citations omitted).
Claims brought pursuant to the NYLL must be raised within six years. See Pineda, 831 F.Supp.2d at 674 (citing N.Y. Lab. Law § 663(1), (3)). Although a defendant may be simultaneously liable under both the FLSA and NYLL, a plaintiff may not recover damages under both the FLSA and NYLL for the same injury. See Hernandez v. Jrpac Inc., No. 14-CV-4176 (PAE), 2016 WL 3248493, at *31 (S.D.N.Y. June 9, 2016). Where both the FLSA and NYLL apply to a plaintiff's claims, courts apply the statute that provides the greatest measure of damages. See Elisama v. Ghzali Gourmet Deli Inc., No. 14-CV-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), report and recommendation adopted, 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498 n.7, 505, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
The limitations period under the NYLL is six years, regardless of a finding of willfulness. See N.Y. Lab. Law § 663(3). Ventura commenced his employment with Putnam Gardens in 2008, Compl. ¶ 17, more than six years before he filed his complaint on January 8, 2020. See ECF No. 1. Given the length of Ventura's employment, the limitations period under the NYLL will provide him the greatest recovery. As such, Ventura is entitled to damages under the NYLL dating back six years from the date he commenced this action-that is, beginning on January 8, 2014.
2. Employer-Employment Relationship under the FLSA and NYLL
To establish a claim for wages under the FLSA, a plaintiff must show that: “(1) the defendant is an enterprise participating in commerce or the production of goods for the purpose of commerce; (2) the plaintiff is an ‘employee' within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA.” Pelgrift v. 335 W. 41st Tavern Inc., No. 14-CV-08934 (AJN), 2017 WL 4712482, at *7 (S.D.N.Y. Sept. 28, 2017) (citation and internal quotation marks omitted). A wage-and-hour claim under the NYLL involves a similar analysis to that under the FLSA, “except that the NYLL does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales.” Tackie v. Keff Enter., Inc., No. 14-CV-2074 (JPO), 2014 WL 4626229, at *2 n.2 (S.D.N.Y. Sept. 16, 2014); see also Santillan, 822 F.Supp.2d at 292 (“Although the Labor Law does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales, it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime.”) (internal quotation marks and citations omitted); N.Y. Comp. Codes R. Regs. Tit. 12, § 142-2.2 (same methods as employed in the FLSA for calculating overtime wages).
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). The term “employer” is afforded “an expansive definition with ‘striking breadth.'” Mondragon v. Keff, 15-CV-2529 (JPO) (BCM), 2019 WL 2551536, at *7 (S.D.N.Y. May 31, 2019) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)). To determine whether Putnam Gardens was Ventura's “employer” for FLSA purposes, the Court examines the “economic reality” of the working relationship. Irizarry v. Catsimatidis, 722 F.3d 99, 104-106, 111 (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 104-105 (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 very 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-CV-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 (internal citation and quotation marks omitted). “Accordingly, courts in this District regularly apply the same tests to determine whether entities were joint employers under NYLL and the FLSA.” Martin v. Sprint United Mgmt Co., 273 F.Supp.3d 404, 422 (S.D.N.Y. 2017).
Ventura's allegations are sufficient to establish the existence of an employer-employee relationship with Putnam Gardens. Ventura alleges that he was employed at Putnam Gardens, a parking garage, as a parking attendant. Compl. ¶¶ 5, 22, 30; see also Ventura Decl. ¶ 2. Ventura's work as a parking attendant was thus integral to the operation of Putnam Gardens. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir. 1988) (looking at “extent to which the work” performed by employee was “an integral part of the employer's business” when assessing existence of employer-employee relationship). Moreover, Putnam Gardens, through Gerasovlis, exercised a fair degree of control over Ventura. Defendants determined Ventura's wages and compensation; they established his work schedule; they maintained employee records; and Defendants had the power to hire and fire employees. Compl. ¶¶ 21, 24-26, 33. And, there is no indication that Ventura had any investment in Putnam Gardens or opportunity for profit outside of his flat daily or weekly lump-sum pay. See Tackie, 2014 WL 4626229, at *3. By its default, Putnam Gardens has admitted its status as Ventura's employer. See Burns v. Scott, No. 20-CV-10518 (JGK), 2022 WL 10118491, at *7 (S.D.N.Y. Oct. 17, 2022).
A claim under the FLSA, requires that Ventura also establish that Putnam Gardens was 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) (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”). The complaint alleges that “Defendants were employers engaged in interstate commerce within the meaning of 29 U.S.C. § 203.” Compl. ¶ 28. On its face, this allegation is conclusory, insofar as it merely restates the statutory definition of enterprise coverage without providing additional factual support. And on a defendant's default, only the plaintiff's “well pleaded allegations” are deemed admitted for purposes of establishing liability. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).
It is also not inferable from the allegations in the complaint that the employees at the parking garage would have handled goods or materials that moved or were produced in interstate commerce, as could be the case if, for example, the business were a restaurant. See Cabrera v. Canela, 412 F.Supp.3d 167, 179 (E.D.N.Y. 2019) (explaining that courts in this District have accepted “similarly conclusory allegations of enterprise coverage” where “it may be inferred from the type of business enterprise that it was engaged in interstate commerce”). Because the complaint does not provide a sufficient basis from which to conclude that Putnam Gardens' activities fall within the reach of the FLSA, I recommend finding that Ventura has not established Defendant's liability under the FLSA for purposes of his First Cause of Action, which seeks unpaid overtime wages under the FLSA. However, Ventura also asserts a claim for unpaid overtime wages under the NYLL (see Compl. ¶¶ 76-79), and the NYLL does not require a connection to interstate commerce. Ventura can thus obtain recovery for unpaid overtime wages under the NYLL.
a. Unpaid Overtime
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); Tackie, 2014 WL 4626229, at *2-3; Burns, 2022 WL 10118491, at *6. The complaint alleges that Ventura worked from 12 p.m. to 12 a.m. six days a week, for a total of 72 hours per week. Compl. ¶¶ 34-36; see also Ventura Decl. ¶ 6. The complaint also asserts that Ventura did not receive an overtime premium for the hours he worked in excess of 40 hours each week. See Compl. ¶¶ 38-40, 43, 52; see also Ventura Decl. ¶¶ 9-11. These allegations adequately state a claim for unpaid overtime wages under the NYLL. See Mondragon, 2019 WL 2551536, at *9; Burns, 2022 WL 10118491, at *8.
b. Unpaid Spread-of-Hours Pay
Under the NYLL, an employee must “receive one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage” for each workday “in which . . . the spread of hours exceeds 10 hours.” 12 N.Y.C.R.R. § 142-2.4(a). “The ‘spread of hours' refers to ‘the length of the interval between the beginning and end of an employee's workday[, and] . . . includes working time plus time off for meals plus intervals off duty.'” Hernandez, 2016 WL 3248493, at *28 (alterations in original) (quoting 12 N.Y.C.R.R. § 146-1.6). NYLL § 663 expressly authorizes an employee to sue his employer to recover unpaid wages otherwise due to him under the statute. N.Y. Labor Law § 663(1). An employee may recover spread-of-hours wages in addition to federal and state overtime wages. Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327, 339-40 (S.D.N.Y. 2005). Further, although there are spread-of-hour provisions applicable to workers in the hospitality industries and building service industry, “[m]ost New York workers” receive the spread-of-hours pay pursuant to the minimum wage order for “Miscellaneous Industries and Occupations.” Almonte v. 437 Morris Park, LLC, No. 14-CV-5951 (KPF), 2015 WL 7460019, at *3 (S.D.N.Y. Nov. 24, 2015).
Here, Ventura alleges that he worked from 12 p.m. until 12 a.m. or 1:00 a.m., six days a week, during his entire employment with Putnam Gardens. Compl. ¶¶ 35-36; see also Ventura Decl. ¶ 6. Ventura thus worked 12-hour shifts, which is plainly more than the 10 hours required for payment of spread-of-hours pay. Ventura further alleges that Putnam Gardens did not pay him the required spread-of-hours pay for any day in which he worked more than 10 hours a day. Compl. ¶ 8; see also Ventura Decl. ¶ 13. Those allegations establish Ventura's entitlement to recover spread-of-hours pay.
c. Statutory Wage Notices and Statements
Ventura also seeks statutory damages for Putnam Garden's failure to provide wage notices and wage statements, as required by New York's Wage Theft Prevention Act (“WTPA”), and NYLL §§ 195(1), (3). See Compl. ¶¶ 83-88. The WTPA requires employers to provide, with every payment of wages, a statement that lists the following:
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; and net wages . . . [T]he statement shall include the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked.N.Y. Lab. Law § 195(3).
The WTPA also requires that employers furnish each employee with a wage notice at the time of hiring that contains the following information:
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 regular pay day designated by the employer in accordance with section one hundred ninety-one of this article; 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 as the commissioner deems material and necessary.N.Y. Lab. Law § 195(1)(a). As of April 9, 2011, and prior to December 29, 2014, the WTPA required employers, in addition to the wage notice at time of hiring, to provide wage notices “on or before February first of each subsequent year of the employee's employment with the employer.” N.Y. Lab. Law § 195(1)(a) (eff. April 9, 2011 to Dec. 28, 2014). Following December 29, 2014, the WTPA was amended such that the annual February notice is no longer required. See N.Y. Lab. Law § 195(1)(a).
Ventura alleges that he never received a written wage notice at the time of hiring or any time thereafter, as required under NYLL § 195(1). Compl. ¶ 84; Ventura Decl. ¶ 14. Ventura also alleges that he did not receive written wage statements with his pay, as required under NYLL § 195(3). Compl. ¶ 87; Ventura Decl. ¶ 15. Because Putnam Gardens is in default, I accept Ventura's allegations that Putnam Gardens failed to provide the required wage notice and statements. I thus recommend that Ventura be awarded statutory damages for these violations.
B. Plaintiff's Damages
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. Shi Ya 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, 687 (1946)). Under both the FLSA and the NYLL, an employer is required to maintain “records of the wages, hours, and persons employed by him.” Calle v. Yoneles Enterprises, Inc., No. 16-CV-1008 (NGG), 2017 WL 6942652, at *11 (E.D.N.Y. 2017) (citation and internal quotation marks omitted). A defaulting defendant, however, “deprive[s] the plaintiff of the necessary employee records required by the FLSA, thus hampering [the] plaintiff's ability to prove his damages.” Santillan, 822 F.Supp.2d at 294. Consequently, where a defendant defaults, a plaintiff may meet his burden of proof “by relying on recollection alone” to establish that he “performed work for which he was improperly compensated.” Elisama, 2016 WL 11523365, at *4 (citation omitted).
1. Unpaid Minimum Wages
In his complaint, Ventura asserts a claim for violation of the NYLL's minimum-wage requirement, alleging that Putnam Gardens failed to pay him the statutorily required hourly minimum wage. Compl. ¶¶ 71-75. In his declaration, Ventura attests that from 2008 until 2017, he worked 12-hour shifts, six days a week, for a flat sum of $98 per day. Ventura Decl. ¶¶ 4, 6. From 2017 until 2019, Ventura attests that he received a flat sum of $700 per week, while still working 12-hour shifts, six days a week. Id. ¶¶ 5-6. Ventura does not say when in 2017 his pay switched from $98 per day to $700 per week (when his daily pay would have been approximately $116).
In calculating the amount of unpaid minimum wages that Ventura is owed, counsel first determined Ventura's hourly rate of pay. Counsel determined the hourly rate by dividing Ventura's daily pay ($98) by 15 hours. Chong Decl. ¶ 16, Ex. D. In his declaration, Ventura explained that he “regularly” had to work after the scheduled end of his shift because the employee who relieved him would arrive late. Ventura Decl. ¶¶ 9-10. But Ventura does not provide any estimate or specific details as to how many hours beyond his scheduled end time he worked or how frequently that occurred. Instead, Ventura “estimate[s]” that he “consistently worked 15 hours per day, six days a week during the entire time [he] was employed by the Defendants” due to other employees being late to relieve him. Ventura Decl. ¶ 12. It is not credible, however, to believe that over the span of 11 years-the entire length of Ventura's employment-Ventura worked an extra three hours each day, six days a week, because the employee assigned to relieve him was always three hours late every day that Ventura worked for Putnam Gardens. Ventura “bears the burden of establishing [his] entitlement to recovery and thus must substantiate [his] claim with evidence to prove the extent of damages.” Dunn v. Advanced Credit Recovery, Inc., No. 11-CV-4023 (PAE) (JLC), 2012 WL 676350, at *2 (S.D.N.Y. Mar. 1, 2012); see also Broach v. Metro. Exposition Servs., Inc., No. 20-CV-0165 (LJL), 2020 WL 3892509, at *4 (S.D.N.Y. July 10, 2020) (“A default judgment entered on well-pleaded allegations does not reach the issue of damages, and Plaintiffs must therefore substantiate their claim for damages with evidence to prove the extent of those damages.”) (citation, alteration, and internal quotation marks omitted). Apart from his own estimates, Ventura has provided nothing else to establish that he worked 15 hours a day, six days a week for 11 years.
Consequently, for purposes of calculating Ventura's hourly rate of pay, I assume he worked the hours he has indicated were his “shift”-namely, from 12 p.m. to 12 a.m. for a total of 12 hours a day. See Coulibaly v. Millennium Super Car Wash, Inc., No. 12-CV-4760 (CBA) (CLP), 2013 WL 6021668, at *7 (E.D.N.Y. Nov. 13, 2013) (“Where a plaintiff's testimony is found to be inconsistent with corresponding facts submitted to the court or is otherwise not credible, the court must resolve the inconsistencies in favor of the defendant.”) (citation omitted). Accordingly, Ventura's hourly rate during the time period when Ventura was earning a flat daily sum was $8.16 ($98 per day divided by 12 hours). See Diaz v. AJE Management Corp., No. 15-CV-1602 (AT) (JCF), 2017 WL 746439, at *3 (S.D.N.Y. Jan. 10, 2017) (calculating hourly rate by dividing employee's daily flat sum payment by the number of hours the employee worked).
In 2017, Ventura began earning a fixed weekly salary of $700 per week, while still working 12 hours per day, six days a week. Ventura Decl. ¶¶ 5-6. “The FLSA and the NYLL carry a rebuttable presumption that a weekly salary covers only the first forty hours, unless the parties have an alternate agreement.” Pinovi v. FDD Enterprises, Inc., No. 13-CV-2800 (GBD) (KNF), 2015 WL 4126872, at *4 (S.D.N.Y. July 8, 2015); see Rosendo v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL 1600057, at *3 (S.D.N.Y. Apr. 7, 2015) (noting rebuttable presumption that weekly salary covers 40 hours of work when employee's pay does not vary based on the number of hours worked each week), report and recommendation adopted, 2015 WL 4557147 (S.D.N.Y. July 28, 2015). The Court “calculates the employee's regular hourly rate by dividing his weekly salary by forty hours.” Id. Consequently, from 2017 until his employment ended on April 16, 2019, Ventura earned an hourly rate of $17.50 (calculated by dividing his $700 weekly pay by 40 hours).
From January 8, 2014, until December 30, 2014, the statutory minimum wage in New York was $8.00 per hour. See N.Y. Lab. Law § 652(1). The statutory minimum wage rose to $8.75 per hour between December 31, 2014, and December 30, 2015. Id. From December 31, 2015, until December 31, 2016, the statutory minimum wage was $9.00 per hour. Id. In 2017, when Ventura's hourly rate rose to $17.50, the statutory minimum wage was $11 per hour, for employers with eleven or more employees, and $10.50 per hour for employers with ten or less employees. Id.; see also 12 N.Y.C.R.R. § 146-1.2(a)(1)(i). As this discussion illustrates, at all times during his employment, Ventura earned more than the state minimum wage.
Ventura's allegations establish that at all times during his employment his hourly wage exceeded the applicable state minimum wage. I therefore do not recommend an award of unpaid minimum wages under the NYLL.
2. Unpaid Agreed-Upon Wages
Ventura also asserts a claim under NYLL § 191 for unpaid wages. See Compl. ¶¶ 89-91. That statute requires that employees be paid the wages earned “in accordance with the agreed terms of employment.” N.Y. Lab. Law. § 191(1)(a). Courts have used NYLL § 191 to authorize recovery of the total amount of unpaid wages, even where it exceeds the minimum wage. See, e.g., Gabal v. Scoutsee Inc., No. 18-CV-2236 (VSB) (OTW), 2019 WL 6220546, at *3 (S.D.N.Y. Oct. 25, 2019), report and recommendation adopted, 2019 WL 6211386 (S.D.N.Y. Nov. 21, 2019); Villar v. Prana Hospitality, Inc., No. 14-CV-8211 (RA) (JCF), 2017 WL 1333582, at * 4 (S.D.N.Y. Apr. 11, 2017), report and recommendation adopted, 2018 WL 3579841 (S.D.N.Y. July 25, 2018); Calle v. Yoneles Enterprises, Inc., No. 16-CV-1008 (NGG) (RLM), 2017 WL 6942652, at *7 (E.D.N.Y. Oct. 24, 2017), report and recommendation adopted, 2018 WL 401269 (E.D.N.Y. Jan. 12, 2018); see also Dreyfuss v. eTelecare Glob. Solutions-US, Inc., No. 08-CV-1115 (RJS), 2010 WL 4058143, at *5 (S.D.N.Y. Sept. 30, 2010) (noting that the NYLL allows “greater than ordinary protection to an employee's right to wages” where “an employer wrongfully withholds earned wages”).
Ventura attests that “throughout [his] employment, there were weeks that [he] received only partial payment of [his] regular wages” and subsequently “never received the balance for the partial wage payments.” Ventura Decl. ¶ 17; see also Compl. ¶¶ 42, 52. Ventura, however, does not explain when he received partial payments or how frequently he was paid only a portion of his agreed-upon wages. Nor does Ventura attempt to estimate how much he received when he was only paid part of his agreed-upon wages. Likewise, Ventura provides no estimate of the number of hours he worked for which he was not paid the agreed-upon wages. Instead, Ventura provides a lump sum estimate. As he explains in his declaration, his “best estimate” is that he accrued unpaid wages of $12,000, between 2014 and the end of his employment. Ventura Decl. ¶ 18.
Ventura bears the burden of establishing that he was not properly compensated for his agreed-upon wages and must substantiate his claim with evidence to prove the extent of his damages. Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14CV10234JGKJLC, 2016 WL 4704917, at *4-5 (S.D.N.Y. Sept. 8, 2016), report and recommendation adopted sub nom., 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). Ventura's declaration is wholly lacking in detail and does not provide a credible account of the instances when he did not receive the agreed-upon wages from his employer. Because Ventura has not established the amount of unpaid agreed-upon wages to a reasonable certainty, I recommend that he not be awarded any damages for this claim.
3. Unpaid Overtime Wages
The NYLL requires an employer to pay an overtime rate of one and one-half times the employee's “regular rate” of pay. 12 N.Y.C.R.R. § 142-2.2. As discussed, Ventura's hourly rate was $8.16 until 2017, when it increased to $17.50. In his declaration, Ventura attests that he never received any additional wages for working past the end of his scheduled shift and he was paid the same flat rate regardless of the number of hours he worked each day. Ventura Decl. ¶¶ 4-5, 11. Ventura worked 12 hours a day, six days a week. Ventura Decl. ¶ 6.
The NYLL entitles Ventura to recovery of unpaid overtime wages for six years. Between 2017 and April 16, 2019 (his last day of employment), Ventura's overtime rate was $26.25 (calculated by multiplying 1.5 by his hourly rate of pay of $17.50). Prior to 2017, Ventura's hourly rate of pay was $8.16. His overtime rate of pay was therefore $12.24 (calculated by multiplying 1.5 by $8.16).
Ventura worked 72 hours per week, or 32 hours of overtime a week. See Ventura Decl. ¶ 6. Between January 1, 2017, and April 16, 2019, Ventura worked approximately 119 weeks. With 32 hours of overtime accrued each week, Ventura is entitled to unpaid overtime wages for 3,808 hours of overtime work (calculated by multiplying 32 hours by 119 weeks). As such, Ventura's unpaid overtime wages from January 1, 2017, through April 16, 2019, are $99,960 (calculated by multiplying $26.25 by 3,840 hours).
Prior to 2017, Ventura's overtime rate was $12.24. Between January 8, 2014, and December 31, 2016, Ventura worked 155 weeks. Because he worked 32 hours of overtime each week, Ventura accrued 4,960 hours of overtime work (calculated by multiplying 32 hours by 155 weeks). At $12.24 per hour, Ventura is entitled to unpaid overtime wages in the amount of $60,710.40, from January 8, 2014, through December 31, 2016.
In sum, I recommend that Ventura receive an award of $160,670.40 in unpaid overtime wages.
4. Unpaid Spread-of-Hours Pay
Ventura worked in excess of 10 hours each day during his six-day work week, for the entirety of his employment at Putnam Gardens. Ventura Decl. ¶ 6. New York law thus entitles Ventura to an extra hour's worth of pay at the state minimum wage for each day he worked in excess of 10 hours. See Espinoza v. Broadway Pizza & Rest. Corp., No. 17-CV-7995 (RA) (KHP), 2021 WL 7903991, at *8 (S.D.N.Y. Nov. 18, 2021), report and recommendation adopted, 2022 WL 977068 (S.D.N.Y. Mar. 31, 2022); see also 12 N.Y.C.R.R. § 142-2.4(a).
From January 8, 2014, until December 30, 2014, the statutory minimum wage in New York was $8.00 per hour. See N.Y. Lab. Law § 652(1). The statutory minimum wage rose to $8.75 per hour between December 31, 2014, and December 30, 2015. Id. From December 31, 2015, until December 31, 2016, the statutory minimum wage was $9.00 per hour. Id. In 2017, the statutory minimum wage was $11 per hour, for employers with eleven or more employees, and $10.50 per hour for employers with ten or less employees. Id.; see also 12 N.Y.C.R.R. § 146-1.2. Because the complaint contains no allegations as to whether Putnam Gardens was a business with 10 or fewer employees, I use the lower hourly rate in determining the spread-of-hours pay. See Gao v. Umi Sushi, No. 18-CV-6439 (ALC) (SN), 2023 WL 2118203, at *4 (S.D.N.Y. Jan. 31, 2023), report and recommendation adopted sub nom., 2023 WL 2118080 (S.D.N.Y. Feb. 17, 2023) (declining to award rate for large employers in default judgment, and using rate for small employers instead, where complaint was silent as to employer's size); Anzurez v. La Unica Caridad Inc., No. 20-CV-3828 (JMF)(GWG), 2021 WL 2909521, at *4 (S.D.N.Y. July 12, 2021), report and recommendation adopted, 2021 WL 317373(S.D.N.Y. July 27, 2021) (finding plaintiff did not prove employer had 11 or more employees and therefore plaintiff “must be compensated at the rate for small employers”).
The “weekly spread-of-hours pay” was calculated by multiplying the number of days Ventura worked per week (6) by the applicable minimum-wage rate.
I recommend awarding Ventura an award for unpaid spread of hours in the amount of $15,387, calculated as detailed in the chart below.
Time Period
Weeks in Time Period
NY minimum wage
Weekly Spread-of-Hours Pay4
Unpaid Spread-of-Hours Pay
1/8/14-12/30/14
49
$8.00
$48
$2,352
12/31/14-12/30/15
52
$8.75
$52.5
$2,730
12/31/15-12/31/16
52
$9.00
$54
$2,808
1/1/17-4/16/19
119
$10.50
$63
$7,497
5. Liquidated Damages Ventura also seeks liquidated damages under the NYLL, which provides that liquidated damages may be awarded in an amount equal to “one hundred percent” of the total unpaid wages. Compl. ¶ O (Prayer for Relief); see also N.Y. Labor Law § 663(1). Under state law, “liquidated damages are presumed unless [Defendant] can show subjective good faith.” Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012). Because Putnam Gardens defaulted, it has not established good faith to rebut the presumption of liquidated damages. See Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *11 (S.D.N.Y. Feb. 26, 2020) (“Having defaulted, Defendants have not carried their burden of demonstrating good faith under the NYLL.”). I thus recommend an award of liquidated damages in the amount of $176,057.40, which is the amount of Ventura's unpaid overtime wages and spread-of-hours pay.
Ventura also seeks an award of liquidated damages under the FLSA. See Compl. ¶ F. But as already discussed, Ventura has not established that Putnam Gardens was an employer engaged in interstate commerce, as required for application of the FLSA.
6. Statutory Damages
Ventura also seeks statutory damages for Putnam Garden's failure to provide wage notices and statements, as required under NYLL §§ 195(1) and (3). See Compl. ¶¶ 83-88. NYLL § 198 sets the amount of statutory damages an employee may recover for violations of Section 195. An employee may recover $50 dollars for each workday that he has not received the wage notice required by Section 195(1), up to the statutory maximum of $5,000. See N.Y. Lab. Law § 198(1-b). For violation of the wage-statement requirement in Section 195(3), an employee may recover $250 for each workday that the violation occurred, up to a statutory maximum of $5,000. See N.Y. Lab. Law § 198(1-d).
Ventura attests that he never received a written wage notice at the time of hiring or any time thereafter, and also never received written wage statements with his pay. Ventura Decl. ¶¶ 14-15. Because Putnam Gardens is in default, I accept Ventura's allegations that Defendant failed to provide either of the required notices. See Xochimitl, 2016 WL 4704917, at *14 (awarding plaintiff statutory damages under NYLL §§ 195(1) and (3) where Defendant defaulted).
Ventura worked for Putnam Gardens for more than 100 days (the number of days at which the $50 per day penalty equals the statutory maximum penalty of $5,000). And Putnam Gardens violated the wage-notice requirement for the entirety of Ventura's employment. I thus recommend that Ventura be awarded $5,000 for violation of the wage-notice provision in Section 195(1). Additionally, Putnam Gardens failed to comply with the wage-statement requirement throughout the entirety of Ventura's employment-a total number of days for which the statutory cap is exceeded. I thus recommend that Ventura be awarded $5,000 for violation of Section 195(3).
In sum, I recommend that Ventura be awarded $10,000 in statutory damages for Putnam Garden's failure to provide the requisite wage notices and statements under New York law.
7. Prejudgment Interest
Ventura also requests and is entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663; see Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999) (finding that the NYLL permits an award of both liquidated damages and prejudgment interest); see also Pineda v. Tokana Cafe Bar Restorant Inc., No. 16-CV-1155 (JPO), 2017 WL 1194242, at *4 (S.D.N.Y. 2017) (“Prejudgment interest may be awarded in addition to liquidated damages under NYLL but not under the FLSA.”). A plaintiff under the NYLL may recover prejudgment interest only on the amount of compensatory damages; he may not obtain prejudgment interest on the amount of liquidated damages under the state law. Gamero, 272 F.Supp.3d at 515; Lopez, 2020 WL 915821, at *11.
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Gamero, 272 F.Supp.3d at 515; see Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998), holding modified by Baron v. Port Auth. of New York & New Jersey, 271 F.3d 81 (2d Cir. 2001) (noting courts' discretion to calculate prejudgment interest based on the “date when damages were incurred or ‘a single reasonable intermediate date,' which can be used to simplify the calculation”) (citation omitted).
To calculate prejudgment interest, the Court must multiply the total amount of Ventura's compensatory damages (for unpaid overtime wages and spread-of-hours pay) by an interest rate of nine percent which will yield the amount of prejudgment interest per year. The statute of limitations under the NYLL began on January 8, 2014, and Ventura's employment terminated on April 16, 2019. The approximate midpoint date between those two limits for calculating prejudgment interest is August 27, 2016. Although Ventura's counsel calculates a midpoint date of April 26, 2017, his calculation is based on an incorrect end date for Ventura's employment of August 12, 2020. See Chong Decl. at Ex. D, ECF No. 43 at 38. Ventura's declaration states that he ended his employment on April 16, 2019. Ventura Decl. ¶ 2. The complaint similarly alleges that same termination date for Ventura's employment with Putnam Gardens. Compl. ¶ 32. I thus determined the midpoint date by using April 16, 2019, as the last day of Ventura's employment.
Accordingly, Ventura should receive prejudgment interest on his entire compensatory damages ($176,057.40) at an interest rate of nine percent per year as applied from August 27, 2016, to the date of entry of judgment.
8. Post-Judgment Interest
Ventura also seeks an award of post-judgment interest. Compl. ¶ P (Prayer for Relief). A plaintiff is “entitled to post-judgment interest on all money awards as a matter of right.” Tacuri v. Nithin Constr. Co., No. 14-CV-2908 (CBA) (RER), 2015 WL 790060, at *12 (E.D.N.Y. Feb. 24, 2015) (citations omitted). According to 28 U.S.C. § 1961(a), an award of post-judgment interest is mandatory in any civil case where money damages are recovered. See Espinoza, 2021 WL 7903991, at *14. I thus recommend that Ventura be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Begum v. Ariba Discount, Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding postjudgment interest).
C. Attorneys' Fees & Costs
The NYLL provides for an award of reasonable attorneys' fees to a successful plaintiff. See N.Y. Lab. Law §§ 198(1-a), 663(1). Ventura was represented by Michael K. Chong, of Michael K. Chong, LLC. See Decl. of Michael K. Chong (“Chong Decl.”) Ex. E, ECF No. 43. Ventura seeks an award of attorneys' fees in the amount of $16,032.00 for 51.3 hours of work. See Chong Decl. ¶ 11. In support of Plaintiff's application, counsel submitted a statement of fees showing the date on which the services were performed, the time expended, and a description of the services completed. See ECF No. 43 at 42-47. Cong represents that the time records were maintained contemporaneously. Chong Decl. ¶ 10.
District courts exercise “considerable discretion” in awarding attorneys' fees. See D.B. ex rel. S.B. v. New York City Dep't of Educ., 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (citation and internal quotation marks omitted), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019); see also McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008). Attorneys' fee awards are typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill, 522 F.3d at 183); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay,” bearing in mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190.
“After establishing the appropriate hourly rate, a court must determine how much time was reasonably expended in order to arrive at the presumptively reasonable fee.” Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 241 (S.D.N.Y. 2020), report and recommendation adopted sub nom., 2021 WL 2139441 (S.D.N.Y. May 26, 2021). In assessing whether the number of hours billed by the attorney is reasonable, courts consider “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) (citation omitted). “District courts reviewing fee petitions must exclude hours that are excessive, redundant, or otherwise unnecessary, allowing only those hours that are reasonably expended.” Hernandez v. Berlin Newington Assocs., LLC, 699 Fed.Appx. 96, 97 (2d Cir. 2017) (summary order) (internal quotation marks, and alterations omitted); see Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (“In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours.”) (citation omitted). “A party seeking attorney's fees bears the burden of supporting its claim of hours expended by accurate, detailed, and contemporaneous time records.” Gamero v. Koodo Sushi Corp., 328 F.Supp.3d 165, 173 (S.D.N.Y. 2018) (citation omitted).
“A district court may exercise its discretion and use a percentage deduction as a practical means of trimming fat from a fee application, and the Supreme Court has been careful to note that only those hours reasonably expended are to be awarded.” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (cleaned up). “For example, in this district, courts have applied percentage reductions to hours worked on a simple legal question, block billing, hours worked for limited success at trial, vague or inconsistent time entries, and unnecessary or inefficient hours worked.” Mango v. BuzzFeed, Inc., 397 F.Supp.3d 368, 374-75 (S.D.N.Y. 2019) (cleaned up) (collecting cases). Further, “district courts have the legal authority and discretion to either reduce an attorney's hourly rate for time spent on clerical tasks or apply an across-the-board reduction to the hours billed or total fee award to account for time spent on clerical tasks.” Lilly v. City of N.Y., 934 F.3d 222, 234 (2d Cir. 2019); see also Williams v. Epic Security Corp., 368 F.Supp.3d 651, 656-57 (S.D.N.Y. 2019) (“Courts in this Circuit have recognized a district court's authority to make across-the-board percentage cuts in hours, as opposed to an item-by-item approach, to arrive at the reasonable hours expended.”).
1. Reasonable Hourly Rate & Hours Expended
“[C]ourts in this District have recently determined that a reasonable rate for senior attorneys handling wage-and-hour cases, in this market, typically ranges from $300 to $400 per hour.” Wan v. YWL USA Inc., No. 18-CV-10334 (CS), 2021 WL 1905036, at *5 (S.D.N.Y. May 12, 2021) (citation and internal quotation marks omitted; alteration in original); see also Lopez v. Emerald Staffing, Inc., No. 18-CV-2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour.”) (citations omitted). “[A]s for associates, rates in excess of $225.00 per hour are reserved for FLSA litigators with more than three years' experience, while associates with one to three years of experience have been awarded rates ranging from $150 to $200 per hour.” Singh v. Meadow Hill Mobile Inc., No. 20-CV-3853 (CS) (AEK), 2021 WL 4312673, at *16 (S.D.N.Y. Aug. 9, 2021), report and recommendation adopted, 2021 WL 3862665 (S.D.N.Y. Aug. 29, 2021) (citation and internal quotation marks omitted).
Chong is seeking fees on behalf of himself and another attorney, Vincent L. Gonzalez. See Chong Decl. ¶¶ 4-6, 9. Chong, the attorney of record for Plaintiff, seeks a fee of $395 per hour. Chong Decl. ¶ 6. Chong is the named partner of the firm, has been practicing law since 2000, and his practice “consists primarily” of representing clients in wage-and-hour cases. Id. ¶¶ 2-5. Chong is an experienced litigator and his requested hourly rate of $395 falls within the range of reasonable hourly rates approved by courts in this District for wage-and-hour cases. I thus recommend approval of Chong's requested hourly rate.
Gonzalez seeks an hourly rate of $350, but Chong's declaration provides no information about Gonzalez's experience or educational background. See Chong Decl. ¶ 9. It is thus not possible to determine whether Gonzalez is a partner or associate at the firm and whether he has previously represented clients in wage-and-hour cases. Moreover, it appears from the billing records that Gonzalez did not perform legal work; instead, it appears Gonzalez served as a translator for Ventura. See, e.g., ECF No. 43 at 46. “Courts in this District have awarded between $50 and $150 for interpreter or translator services.” Yuajian Lin v. La Vie En Schezuan Rest. Corp., No. 15-CV-9507 (DF), 2020 WL 1819941, at *6 (S.D.N.Y. Apr. 9, 2020) (citation omitted); see Lora v. J. V. Car Wash, LTC., No. 11-CV-9010 (LLS) (AJP), 2015 WL 4496847, at *17 (S.D.N.Y. July 24, 2015) (collecting cases awarding rates between $50 per hour and $125 per hour for translation and interpretation work), report and recommendation adopted, 2015 WL 7302755 (S.D.N.Y. Nov. 18, 2015). Given the nature of the work Gonzalez performed, as described in the billing records, and the lack of any information about his professional experience, I recommend awarding Gonzalez an hourly rate of $150.
I was also unable to uncover any information about Gonzalez from the website for Chong's firm. See Cabrera v. N.Y. Fresh Mkt., Inc., No. 15-CV-1325 (GBD) (SDA), 2018 WL 3300647, at *9 (S.D.N.Y. Mar. 29, 2018), report and recommendation adopted, 2018 WL 2192187 (S.D.N.Y. May 14, 2018) (referring to law firm's website to take judicial notice of biographical information about attorney seeking an award of fees).
Plaintiff also seeks an award of fees for the work of two legal assistants, Keiry Rodriguez and Diane Acciavatti. Chong Decl. ¶¶ 7-8. Rodriguez requests an hourly rate of $110 per hour. Here, too, Chong provides no details about Rodriguez's education or work experience at the firm. See id. ¶ 7. Acciavatti has 35 years of experience as a paralegal and requests an hourly rate of $200. Id. ¶ 8.
The standard paralegal rate in this district is $75 per hour, “unless it has been shown that the paralegal has specialized skills.” Knox v. John Varvatos Enters. Inc., No. 17-CV-772 (GWG), 2021 WL 608345, at *6 (S.D.N.Y. Feb. 17, 2021), aff d sub nom., 2021 WL 5121140 (2d Cir. Nov. 4, 2021) (citations omitted); see also Garcia-Severino v. TDL Restoration, Inc., No. 18-CV-11401 (CS), 2020 WL 7239678, at *2 (S.D.N.Y. Dec. 9, 2020) (“While $75 is the rate commonly awarded in this District for paralegal time spent on wage-and-hour cases, some courts have awarded between $100 and $125.”) (citations and quotation marks omitted). Because Plaintiff has not provided any information about Rodriguez's work experience, I recommend awarding her the standard paralegal rate of $75 per hour. Acciavatti's requested rate of $200 is above the range typically awarded for paralegal work. However, given her three decades of experience as a paralegal, she merits a rate above the $75 “standard” rate. I thus recommend a rate of $125 per hour for Acciavatti.
Next, I turn to whether the requested hours are reasonable. Ventura's counsel has billed for 51.30 hours of work in a routine wage-and-hour case where the Defendants never appeared and ultimately defaulted. Although the hours are not excessive, the total number of hours are high for such a straight-forward case where neither Defendant appeared and the case resulted in a default judgment. See Lopez, 2020 WL 915821, at *14 (68.5 hours reasonable in multiple plaintiff wage-and-hour case litigated for nearly two years but ultimately decided on default); Gonzales v. Gan Israel Pre-Sch., No. 12-CV-6304 (MKB) (VMS), 2014 WL 1011070, at *21 (E.D.N.Y. Mar. 14, 2014) (49.9 hours reasonable in two-plaintiff wage-and-hour case where defendants defaulted). Moreover, some of the time spent on certain tasks was excessive. For instance, Chong, the firm's named partner, spent 4.4 hours drafting the complaint in this case-a bare-bones compliant in a routine wage-and-hour case. See ECF No. 43 at 42-43. Chong also billed time for administrative tasks, such as filing the complaint, reviewing the docket, revising the summonses, and modifying Plaintiffs “party designation.” Id. at 43. Because of the lack of complexity of the legal and procedural issues in this case, and given billing entries that suggest overbilling by Chong, I recommend reducing the hours expended by ten percent. See, e.g., Zhen Ming Chen v. New Fresco Tortillas Taco LLC, 15 Civ. 2158 (RA) (AJP), 2015 WL 5710320, at *10 (S.D.N.Y. Sept. 25, 2015), report and recommendation adopted, 2017 WL 818469 (S.D.N.Y. Mar. 1, 2017) (10% reduction); Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 30 (S.D.N.Y. 2015) (reducing excessive fees for one attorney by 10%); Trustees of N.Y. Oil Heating Ins. Fund v. Anchor Tank Lines Corp., No. 09 Civ. 9997, 2011 WL 767162, at *5 (S.D.N.Y. Mar. 4, 2011) (reducing attorneys' fees by 10%), report and recommendation adopted in relevant part, 2011 WL 1641981 (S.D.N.Y. Apr. 29, 2011); Andrade v. 168 First Ave Rest. Ltd., No. 14 Civ. 8268 (JPO) (AJP), 2016 WL 3141567, at *12 (S.D.N.Y. June 3, 2016), report and recommendation adopted, 2016 WL 3948101 (S.D.N.Y. July 19, 2016) (10% reduction).
I thus recommend an award of attorneys' fees in the amount of $12,506, as outlined in the table below.
Worked Performed By
Requested Hourly Rate
Approved Hourly Rate
Hours Requested
Total Award
Michael Chong
$395
$395
28
25.2
$9,954
Vincent Gonzalez
$350
$150
4.3
3.87
$581
Keiry Rodriguez
$110
$75
3.7
3.33
$249.75
Diane Acciavatti
$200
$125
15.3
13.77
$1,721.25
Total
-
-
51.30
46.17
$12,506
The hours in this column reflect a 10% reduction from the hours requested.
2. Costs
An employee who prevails in a wage-and-hour action is entitled to recover costs under the NYLL. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). An attorneys' fees award may also include “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). These “costs” may include photocopying, travel, telephone costs, id., as well as filing fees and reasonable process-server fees. Rosendo,2015 WL 1600057, at *9. “As with attorneys' fees, [a] requesting party must substantiate the request for costs.” 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 Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017), report and recommendation adopted, 2017 WL 3084408 (E.D.N.Y. July 18, 2017).
Ventura seeks costs in the amount of $551.88. Chong Decl. ¶ 11. That amount includes $400 for the case filing fee, $64.63 for “Spartan Detective Service for address/party search,” $47.50 for “Court expenses” related to downloading and printing documents from PACER, and $39.75 for “printing and copying of documents.” See ECF No. 43 at 47; ECF No. 45 at 4. The Court takes judicial notice of the $400 filing fee. See, e.g., Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV-3602 (JGK) (JLC), 2018 WL 4844018, at *9 (S.D.N.Y. Oct. 5, 2018), report and recommendation adopted, 2018 WL 6173713 (S.D.N.Y. Nov. 23, 2018), report and recommendation adopted, 2018 WL 6173713 (S.D.N.Y. Nov. 23, 2018) (taking judicial notice of $400 filing fee) (citation omitted). For the “Spartan Detective Service,” Chong has substantiated the cost with an invoice from Spartan for the services provided to the firm. See ECF No. 45 at 3. From the invoice, it appears that Spartan investigated “postal forwarding” for Defendants, and as Chong explained in his declaration, the firm expended substantial efforts to locate the address for service on individual defendant Gerasovlis. Chong Decl. ¶¶ 7-10. However, the Pacer expenses and printing costs are not supported by any documentation. Although Chong provides an “invoice” for these costs, see ECF No. 45 at 4, it is an “internal record” of the firm that does not suffice to prove payment for these costs or the accuracy of the amount requested. I thus do not recommend including the $47.50 and $39.75 prove in the award of costs to Ventura. See Andrade, 2016 WL 3141567, at *11 (declining to award costs where plaintiff did not provide supporting documentation).
In sum, I recommend an award for attorneys' fees in the amount of $12,506 and an award for costs of $464.63.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff be awarded $362,114.80, which is comprised of unpaid overtime wages, spread-of-hours wages, liquidated damages, and statutory damages. I also recommend an award of post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. Additionally, I recommend awarding Plaintiff his attorneys' fees in the amount of $12,506, and costs in the amount of $464.63. Finally, I recommend that the Clerk of the Court be directed to calculate pre-judgment interest at the statutory rate of 9% a year on Plaintiff's compensatory damages of $176,057.40, from August 27, 2016, to the date judgment is entered. Plaintiff is directed to serve a copy of this Report and Recommendation on Defendant and file proof of service of the same on the docket by no later than March 28, 2023.
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), 6(b), 6(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 the Honorable John G. Koeltl. 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).