Opinion
23-CV-9029 (PKC)(PK)
12-20-2024
ERNESTO DE LOS SANTOS AGRAMONTE, Plaintiff, v. PINERIDGE COMMUNICATIONS, INC., FRANCISCO SUAZO-MARTINEZ Defendants.
REPORT AND RECOMMENDATION
PEGGY KUO UNITED STATES MAGISTRATE JUDGE
Plaintiff Ernesto de los Santos Agramonte (“Plaintiff”) brought this action against Pineridge Communications, Inc. (“Defendant Pineridge”) and Francisco Suazo-Martinez (“Defendant Martinez”) (collectively, “Defendants”) for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law §§ 650 et seq. (See
Compl., Dkt. 1.) Plaintiff has filed a Motion for Default Judgment against the Defendants (the “Motion,” Dkt 16), which the Honorable Pamela K. Chen has referred to me (Order, May 14, 2024). For the reasons stated herein, I respectfully recommend that the Motion be GRANTED.
BACKGROUND
I. Factual Background
The following facts are taken from the Complaint, the Affirmation of Ernesto de los Santos Agramonte (“Pl. Aff.,” Dkt. 16), and the Affirmation of Nicole Brenecki (“Brenecki Aff.,” Dkt. 19), which are accepted as true for the purpose of the Motion. See 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).
Defendant Pineridge, a “contractor operating in the field of telecommunications,” is a New York corporation. (Compl. ¶ 12.) Defendant Martinez is the owner and operator of Defendant Pineridge (id. ¶ 7), which “engaged in commerce” and had gross annual revenue exceeding $500,000 (id. ¶ 10).
From approximately June 1, 2022 to August 1, 2023, Plaintiff was employed by Defendants to “install antennas at various locations throughout the State of New York.” (Pl. Aff. ¶ 9.) Plaintiff worked six days per week for between 13 and 15 hours per day, for a total of between 78 and 90 hours per week. (Compl. ¶¶ 17-18; Pl. Aff. ¶¶ 10-12.) Plaintiff received $160 per day regardless of the number of hours he worked; he was never paid at an overtime rate of time-and-a-half for his hours worked beyond forty each week. (Compl. ¶¶ 19-21; Pl. Aff. ¶¶ 12-13, 15.) Defendants also failed to pay Plaintiff any wages for his last two weeks of work. (Compl. ¶¶ 37-45; Pl. Aff. ¶ 16.) Plaintiff was paid his wages in cash and never received a wage statement with his pay. (Compl. ¶¶ 46-50; Pl. Aff. ¶¶ 17-18.) Similarly, when he was hired, Plaintiff was not provided with a wage notice. (Compl. ¶¶ 51-55; Pl. Aff. ¶ 18.)
In the Complaint, Plaintiff alleged that his employment began September 1, 2022. (Compl. ¶ 16.) Plaintiff later affirmed that his employment period was from June 1, 2022 to August 1, 2023 (Pl. Aff. ¶ 10), and Defendants' letter of employment that Plaintiff submitted also states that he began work in June 2022 (Defs' Ltr., Dkt. 16-2). Thus, I find that Plaintiff's employment began June 1, 2022.
II. Procedural Background
Plaintiff filed the Complaint on December 8, 2023, and alleged five causes of action: (1) unpaid overtime wages under the FLSA; (2) unpaid overtime wages under the NYLL; (3) unpaid wages under the NYLL; (4) failure to provide wage statements under the NYLL; and (5) failure to provide a wage notice under the NYLL. (Compl. ¶¶ 25-55.)
At the Inquest held in this case, Plaintiff acknowledged that he failed to allege facts in support of an injuryin-fact sufficient to establish Article III standing for his wage notice and wage statement claims under NYLL § 195, see Guthrie v Rainbow Fencing, Inc., 113 F. 4th 300, 309 (2d Cir. 2024), and he withdrew those causes of action. (See Min. Entry & Order, November 4, 2024.)
On December 12, 2023, Plaintiff served Defendant Martinez by delivering a copy of the Complaint and Summons to his residence (Aff. of Service, Dkt. 9) and served Defendant Pineridge by delivering a copy of the Complaint and Summons to an individual designated to accept service on the company's behalf (Aff. of Service, Dkt. 8). Defendants did not file an answer by the deadline, January 2, 2024. Plaintiff requested a Certificate of Default against Defendants (Dkt. 12), which the Clerk of Court entered on February 13, 2024 (Dkt. 13). Plaintiff thereafter filed the Motion.
The Court granted Plaintiff leave to supplement his submission to request prejudgment interest and reasonable attorneys' fees (Min. Entry & Order, November 4, 2024), which Plaintiff submitted on November 8, 2024 (Brenecki Aff.).
DISCUSSION
I. Default Judgment Standard
Rule 55 of the Federal Rules of Civil Procedure prescribes a two-step process for entry of a default judgment. First, when a defendant “has failed to plead or otherwise defend,” the Clerk of Court enters the defendant's default. Fed.R.Civ.P. 55(a). The plaintiff may then move the court for an entry of default judgment. Fed.R.Civ.P. 55(b)(2). However, “just because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right.” GuideOne Specialty Mut. Ins. Co. v. Rock Cmty. Church, Inc., 696 F.Supp.2d 203, 208 (E.D.N.Y. 2010).
The Court may “first assure itself that it has personal jurisdiction over the defendant.” City of N.Y. v. Mickalis Pawn Shop, LLC (“Mickalis”), 645 F.3d 114, 133 (2d Cir. 2011) (internal quotation omitted). Plaintiff must demonstrate proper service of the summons and complaint, see Advanced Cap. Com. Grp., Inc. v. Suarez, No. 09-CV-5558 (DRH)(GRB), 2013 WL 5329254, at *2 (E.D.N.Y. Sept. 20, 2013), and establish compliance with the procedural requirements of Local Civil Rules 7.1 and 55.2.
In addition, the Court must also determine whether Plaintiff's “allegations establish [the defendant's] liability as a matter of law.” Finkel, 577 F.3d at 84; see also Mickalis, 645 F.3d at 137. In considering a motion for default judgment, a court accepts a plaintiff's “factual allegations as true and draw[s] all reasonable inferences in [the plaintiff's] favor....” Finkel, 577 F.3d at 84. However, a default is “not considered an admission of damages.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “The plaintiff bears the burden of presenting proof of damages, which may take the form of documentary evidence or detailed affidavits.” Joe Hand Promotions, Inc. v. Benitez, No. 18-CV-6476 (ARR)(PK), 2020 WL 5519200, at *3 (E.D.N.Y. Aug. 27, 2020), R&R adopted, 2020 WL 5517240 (E.D.N.Y. Sept. 14, 2020).
In the context of a motion for default judgment on FLSA and NYLL claims, “the plaintiff's recollection and estimates of hours worked are presumed to be correct.” Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 83 (E.D.N.Y. 2012); see Santillan v. Henao, 822 F.Supp.2d 284, 294 (E.D.N.Y. 2011) (presuming “correct” an “employee's recollection and estimates of hours” where employer defaults).
A court “possesses significant discretion” in granting a motion for default judgment, “including [determining] whether the grounds for default are clearly established....” Klideris v. Trattoria El Greco, No. 10-CV-4288 (JBW)(CLP), 2011 WL 7114003, at *2 (E.D.N.Y. Sept. 23, 2011), R&R adopted, 2012 WL 273078 (E.D.N.Y. Jan. 30, 2012).
II. Jurisdiction
A. Subject Matter Jurisdiction
The Court has original subject matter jurisdiction over Plaintiff's FLSA claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.
B. Personal Jurisdiction
“[S]erving a summons . . . establishes personal jurisdiction over a defendant . . . who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (quoting Fed.R.Civ.P. 4(k)(1)(A)). New York has general jurisdiction over corporations formed under its laws and operating within the state. Francis v. Ideal Masonry, Inc., No. 16-CV-2839 (NGG)(PK), 2018 WL 4292171, at *3 (E.D.N.Y. Aug. 3, 2018), R&R adopted, 2018 WL 4288625 (E.D.N.Y. Sept. 7, 2018). New York also has general jurisdiction over its residents. See Brown v. Lockheed Martin Corp., 814 F.3d 619, 622 n.1 (2d Cir. 2016).
Defendant Pineridge was “registered in the State of New York” and was “operating in the field of telecommunications” in New York. (Compl. ¶ 12.) It was served with the Complaint and the Summons, and the Court, therefore, has personal jurisdiction over Defendant Pineridge.
Similarly, Defendant Martinez's last known place of residence is in Brooklyn. (See Summons, Dkt. 6.) Plaintiff properly effectuated service on Defendant Martinez, and the Court, therefore, has personal jurisdiction over him.
III. Procedural Compliance
A. Local Civil Rules
As part of the Motion and in compliance with the Local Civil Rules, Plaintiff submitted the Clerk's Certificate of Default (Dkt. 16-1), see Local Civil Rule 55.2(b)(1); proof of having mailed the motion papers to Defendant Martinez at his last known residence and to Defendant Pineridge at its last known business address (Dkt. 16), see Local Civil Rule 55.2(a)(3); and Plaintiff's affidavit that shows the proposed damages and basis for each element of damages, including costs (Pl. Aff.), and Plaintiff's Counsel's affidavit that demonstrates the basis for his attorneys' fees request (Brenecki Aff.), see Local Civil Rule 55.2(c). Plaintiff also submitted an affirmation that Defendant Martinez is not an infant, in the military, or an incompetent person, see Local Civil Rule 55.2(a)(1)(C). (Req. for Cert. of Default, Dkt. 12.)
While Plaintiff failed to provide a proposed judgment and a memorandum of law in support of the motion, pursuant to Local Civil Rules 7.1(a)(2) and 55.2(b)(3), “the Second Circuit has made it clear that the court has broad discretion to excuse noncompliance with Local Rules.” Gustavia Home, LLC v. Vaz, 17-CV-5307 (ILG) (RER), 2019 WL 3752772, at *4 (E.D.N.Y. Aug. 8, 2019), aff'd, 2020 WL 5868286 (2d Cir. Oct. 2, 2020); see also Ass'n for Retarded Citizens of Connecticut, Inc. v. Thorne, 68 F.3d 547, 554 (2d Cir. 1995) (“The district court's inherent discretion to depart from the letter of the Local Rules extends to every Local Rule regardless of whether a particular Local Rule specifically grants the judge the power to deviate from the Rule.”). Indeed, there is “a line of cases that have excused a plaintiff's failure to strictly comply with Local Civil Rule 55.2(b)....” Guanglei Jiao v. Shang Shang Qian
Inc., 18-CV-5624 (ARR)(VMS), 2020 WL 6370148, at *7 (E.D.N.Y. Aug. 11, 2020) (collecting cases), R&R adopted, 2020 WL 5105063 (E.D.N.Y. Aug. 31, 2020).
As discussed herein, Plaintiff's submissions provide a sufficient basis for the Court to determine liability. Accordingly, I find that Plaintiff's compliance with the Local Civil Rules is satisfied.
IV. Liability under the FLSA and NYLL
A. Statute of Limitations
The FLSA statute of limitations is two years, “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued....” 29 U.S.C. § 255(a). “When a defendant defaults, the violation is considered ‘willful' and the three year statute of limitations applies.” Rodriguez v. Queens Convenience Deli Corp., No. 09-CV-1089 (KAM)(SMG), 2011 WL 4962397, at *2 (E.D.N.Y. Oct. 18, 2011) (citation omitted). “The statute of limitations starts to run when the employee begins to work for the employer.” Id. (citation omitted).
Under the NYLL, the statute of limitations is six years. NYLL §§ 198(3), 663(3).
Because Plaintiff commenced this action on December 8, 2023, all the alleged violations that occurred during his employment from June 1, 2022 to August 1, 2023 are within both statutes of limitation.
B. Employment Relationship
The FLSA is to be “construed . . . liberally” because its “broad coverage is essential to accomplish the goal of outlawing from interstate commerce goods produced under conditions that fall below minimum standards of decency.” Tony & Susan Alamo Found. v. Sec'y of Lab., 471 U.S. 290, 296 (1985) (citations omitted). “To plead a cause of action under the FLSA, [a plaintiff] must establish that: (1) defendant is an employer subject to the FLSA; (2) plaintiff is an employee within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA.” Rowe v. CC Rest. & Bakery, Inc., No. 17-CV-01423 (CBA)(PK), 2019 WL 4395158, at *4 (E.D.N.Y. Aug. 15, 2019), R&R adopted, 2019 WL 4393987 (E.D.N.Y. Sept. 13, 2019).
1. Whether the Defendants are Employers Under the FLSA
For an employee to be covered by the FLSA, he must “show either that [his] employer was an enterprise engaged in interstate commerce or that [his] work as [an] employee[] regularly involved [him] in interstate commerce.” Marine v. Vieja Quisqueya Rest. Corp., No. 20-CV-4671 (PKC)(RML), 2022 WL 17820084, at *3 (E.D.N.Y. Sept. 8, 2022), R&R adopted Sept. 23, 2022; see 29 U.S.C. §§ 206, 207. These two methods of establishing FLSA coverage are known as “enterprise coverage” and “individual coverage,” respectively. Solis v. Tropical Rest. Bar Inc., No. 23-CV-1707 (ENV)(MMH), 2024 WL 4271234, at *7 (E.D.N.Y. Sept. 19, 2024).
The individual coverage test considers the “employment actions of each” plaintiff to determine whether “the employees themselves are ‘engaged in commerce.'” Rowe, 2019 WL 4395158, at *4 (quoting 29 U.S.C. §§ 203(s)(1)(A)(i-ii)). Even if a plaintiff is not herself engaged in commerce, a defendant may meet the enterprise coverage test if the defendant has employees engaged in commerce or in the production of goods for commerce, “or . . . has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and . . . whose annual gross volume of sales made or business done is not less than $500,000.” 29 U.S.C. §§ 203(s)(1)(A)(i-ii); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (E.D.N.Y. 2015). “Commerce” is “trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b). Even local activities may meet this test if “an enterprise employs workers who handle goods or materials that have moved or been produced in interstate commerce....” Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 121 (E.D.N.Y. 2011) (internal quotation omitted).
Plaintiff alleges that Defendant Pineridge had at least $500,000 in annual revenue and that Plaintiff worked with “telecommunication equipment that originated out of state.” (Compl. ¶¶ 10- 11.) Because Plaintiff installed antennas, it is reasonable to infer that he handled equipment and supplies that were moved in interstate commerce. See, e.g., Bhagwat v. Queens Carpet Mall, Inc., No. 14-CV-5474 (ENV)(PK), 2018 WL 4921637, at *4 (E.D.N.Y. Sept. 12, 2018) (finding reasonable that carpet installation employee handled “goods moved from or produced in other states-i.e., carpets”), R&R adopted, 2018 WL 4941771 (E.D.N.Y. Oct. 11, 2018); Wing Kwong Ho v. Target Const. of NY, Corp., No. 08-CV-4750 (KAM)(RER), 2011 WL 1131510, at *8 (E.D.N.Y. Mar. 28, 2011) (reasoning that “tools and construction materials [that plaintiff used] undoubtedly traveled in interstate commerce”).
Plaintiff has, therefore, established that Defendants meet the enterprise coverage test and were thus required to comply with FLSA's requirements. Huerta v. Victoria Bakery, No. 10-CV-4754 (RJD)(JO), 2012 WL 1107655, at *2 (E.D.N.Y. Mar. 30, 2012) (finding that courts can “infer[ ] the requisite interstate commerce connection under [a] sensible approach”).
Plaintiff alleges that Defendant Martinez was also his employer and should thus be liable for any damages under the FLSA. (Compl. ¶ 7.) The FLSA broadly defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d), and does not define the term “employer” in the first instance, Irizarry v. Catsimatidis, 722 F.3d 99, 103 (2d Cir. 2013). “[E]mployment for FLSA purposes [is] a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances.” Id. at 104 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 42 (2d Cir. 2008)).
In Carter v. Dutchess Community College, the Second Circuit outlined the multi-factor “economic reality” test to determine whether an individual defendant is an employer of a FLSA plaintiff. 735 F.2d 8, 12 (2d Cir. 1984). The Carter factors ask “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. (internal quotation removed).
Defendant Rodriguez “supervised [Plaintiff's] work and paid [his] wages” (Pl. Aff. ¶ 8) and “had the power to hire and fire Plaintiff, control the terms and conditions of his employment, maintain employment records, and determine the rate and method of [his] compensation” (Compl. ¶ 9). Along with Defendant Pineridge, Defendant Rodriguez is, therefore, properly considered to be Plaintiff's “employer” under the FLSA.
2. Whether Plaintiff Was an Employee Under the FLSA
An “employee” under the FLSA is likewise broadly defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). Because Defendants were Plaintiff's “employer,” Plaintiff was their “employee” under the FLSA.
3. Whether Any FLSA Exemption Applies
Finally, Plaintiff must show that he is not exempt from the FLSA's protections. Fermin, 93 F.Supp.3d at 32. “Section 13 of the FLSA contains a litany of exemptions to the minimum wage requirement.” Chen v. Major League Baseball, 6 F.Supp.3d 449, 454 (S.D.N.Y. 2014), aff'd sub nom., 798 F.3d 72 (2d Cir. 2015).
Plaintiff installed antennas and was therefore engaged in non-exempt employment under the FLSA. (See Pl. Aff. ¶ 9.) The Court finds no basis for exempting Plaintiff's employment from the FLSA's coverage.
4. Employment Relationship under the NYLL
To prevail on a NYLL claim, Plaintiff must establish that his employment relationship with Defendants falls within the NYLL, which applies to “any person employed for hire by an employer in any employment.” NYLL § 190. “Unlike the FLSA, the NYLL does not require that a defendant achieve a certain minimum in annual sales or business in order to be subject to the law.” Garcia v. Badyna, No. 13-CV-4021 (RRM)(CLP), 2014 WL 4728287, at *6 (E.D.N.Y. Sept. 23, 2014). Otherwise, the NYLL's definition of “employer” is “nearly identical” to that of the FLSA, and the analysis of the employment relationship under both statutes is based on the same factors. Mahoney v. Amekk Corp., No. 14-CV-4131 (ENV)(VMS), 2016 WL 6585810, at *9 (E.D.N.Y. Sept. 30, 2016) (collecting cases holding that the FLSA and NYLL are interpreted consistently with one another on the question of employment status), R&R adopted, 2016 WL 6601445 (E.D.N.Y. Nov. 7, 2016).
As the NYLL and FLSA definitions of “employer” are essentially coextensive, see Fermin, 93 F.Supp.3d at 37, I find that Defendants were Plaintiff's “employers” and Plaintiff was their “employee” within the meaning of the NYLL.
C. Overtime Claims
Under both the FLSA and the NYLL, an employee must “be compensated at a rate of no less than one and one-half times the regular rate of pay for any hours worked in excess of forty per week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)); see also NYLL §§ 650 et seq.; 12 N.Y.C.R.R. § 142-2.2. To support “a reasonable inference” that he worked more than forty hours in a given week, Nakahata, 723 F.3d at 201, Plaintiff must allege some uncompensated time in excess of forty hours of work, Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013), and provide “sufficient detail about the length and frequency” of the unpaid work. Nakahata, 723 F.3d at 201; see also Fermin, 93 F.Supp.3d at 44-45 (finding sufficient plaintiffs' allegation of working over forty hours each week).
Plaintiff alleges that he worked six days per week for approximately thirteen to fifteen hours per day (Compl. ¶¶ 17-18), between 78 and 90 hours per week. (Pl. Aff. ¶ 12.) Plaintiff alleges that he “received the sum of one hundred sixty dollars ($160.00) a day regardless of the number of hours [he] worked” and was not paid the appropriate overtime rate. (Id. ¶¶ 13-15.)
These allegations are sufficient to establish Defendants' liability for failure to pay Plaintiff overtime under both the FLSA and the NYLL. See Newman v. W. Bar & Lounge, Inc., No. 20-CV-1141 (KAM)(RER), 2021 WL 2401176, at *7 (E.D.N.Y. June 11, 2021) (where employer defaulted, finding that a plaintiff's sworn statement estimating his schedule and pay was sufficient to establish that he worked over forty hours a week without time-and-a-half compensation, subjecting employer to liability under the FLSA and the NYLL).
D. Unpaid Promised Wages Claim
Under the NYLL, employees must be paid at least the minimum hourly wage for each hour that they work. NYLL § 652. Further, “[w]here a non-exempt employee has an agreement with his or her employer to be paid at a rate greater than the minimum wage, several courts have found that the failure to pay the promised rate is a violation of NYLL § 191, entitling the employee to damages under NYLL § 198.” Cavalotti v. Daddyo's BBQ, Inc., No. 15-CIV-6469 (PKC)(VMS), 2018 WL 5456654, at *13 (E.D.N.Y. Sept. 8, 2018) (collecting cases). “Under the NYLL . . . a plaintiff can recover for unpaid ‘straight' time at the agreed-upon rate, even if it exceeds the minimum wage.” Calle v. Yoneles Enterprises, Inc., No. 16-CV-1008 (NGG)(RLM), 2017 WL 6942652, at *7 (E.D.N.Y. Oct. 24, 2017), R&R adopted, 2018 WL 401269 (E.D.N.Y. Jan. 12, 2018).
Plaintiff alleges that Defendants failed to pay him “for the last two weeks of work.” (Compl. ¶ 41, Pl. Aff. ¶ 16). These allegations are sufficient to establish Defendants' liability for failure to pay Plaintiff two weeks of wages at his promised rate. See, e.g., Santillan v. Henao, 822 F.Supp.2d 284, 292 (E.D.N.Y. 2011) (finding that the NYLL expressly provides that employees are entitled to recover all unpaid wages).
V. Damages
A. Overtime Wage Damages
Plaintiff was entitled to overtime pay for all hours worked over 40 at 1.5 times his regular rate of pay from June 1, 2022 through August 1, 2023. Under both the FLSA and NYLL, an employee must “be compensated at a rate of no less than one and one-half times the regular rate of pay for any hours worked in excess of forty per week.” Nakahata, 723 F.3d at 200 (citing 29 U.S.C. § 207(a)); see also 12 N.Y.C.R.R. § 142-2.2.
Under the FLSA, the “regular rate” for employees who are paid a flat sum per day without any additional compensation is calculated by dividing the amount of compensation in the work week by the number of hours worked. 29 C.F.R. § 778.112; see Nuriddinov v. Masada III, Inc., No. 15-CV-5875 (KAM)(RML), 2017 WL 9253401, at *9 (E.D.N.Y. July 24, 2017), R&R adopted as modified on other grounds, 2018 WL 1251335 (E.D.N.Y. Mar. 12, 2018). Plaintiff's regular rate under the NYLL is the same. See 12 N.Y.C.R.R. 142-2.16; see Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047 (ENV)(MMH), 2024 WL 4309775, at *15-16 (E.D.N.Y. Sept. 26, 2024).
Plaintiff alleges that he worked between thirteen and fifteen hours per day (Compl. ¶ 18) and received $160 per day regardless of the number of hours he worked (id. ¶ 19; Pl. Aff. ¶ 13). For purposes of the Motion, Plaintiff calculates his damages using the lower end of the hours worked, i.e. 13 hours per day, for a total of 78 hours per week. (Pl. Aff. ¶¶ 11-12.) During a six-day work week, Plaintiff was paid $960 (six days at $160 per day). Thus, Plaintiff's regular rate is $12.31 per hour.
Using a 15-hour workweek results in an even lower regular rate ($10.67) and, thus, a greater recovery than what Plaintiff requests.
Because Plaintiff's regular rate is below the applicable New York State minimum wage rate of $15 per hour, Plaintiff is owed the difference between his regular rate ($12.31) and the minimum wage overtime rate ($22.50) for all hours worked over forty each week, i.e., $10.19 per hour. See, e.g., Calle v. Yoneles Enterprises, Inc., No. 16-CV-1008 (NGG)(RLM), 2017 WL 6942652, at *13 (E.D.N.Y. Oct. 24, 2017), R&R adopted, 2018 WL 401269 (E.D.N.Y. Jan. 12, 2018); Jacome v. Optical 49, Inc., No. 12-CV-2615(DG)(PK), 2021 WL 3375134, at *11 (E.D.N.Y. July 9, 2021), R&R adopted, 2021 WL 3373130 (E.D.N.Y. Aug. 3, 2021). I calculate Plaintiff's NYLL overtime damages as illustrated in the following chart.
Plaintiff's Overtime Damages
Time Period
Number of Weeks
Overtime Amount Owed Per Hour
Overtime Hours Per Week
Weekly Overtime Underpayment
Total Underpayment (Weekly Underpayment x Number of Weeks)
June 1, 2022 - Aug. 1, 2023
60
$10.19
38
$387.22
$23,233.20
TOTAL
$23,233.20
Accordingly, I respectfully recommend that Plaintiff be awarded $23,233.20 in unpaid overtime wages.
B. Unpaid Promised Wage Damages
Plaintiff alleges that Defendants failed to pay any wages to him for the last two weeks of his employment, July 17-August 1, 2023. Because this period is included in the overtime wage damages, supra, Plaintiff is only owed the promised wages he did not receive, i.e., $1,920 (12 days at $160 per day).
Accordingly, I respectfully recommend that Plaintiff be awarded $1,920 in unpaid promised wages.
C. Liquidated Damages
An employee may recover liquidated damages under either the FLSA or NYLL equal to the amount owed for unpaid minimum wage and overtime wages. 29 U.S.C. § 216(b); NYLL § 198(1-a). The Second Circuit has interpreted the NYLL to preclude the award of double liquidated damages- that is, liquidated damages under both the NYLL and FLSA. See Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018). Plaintiff may, therefore, be awarded liquidated damages pursuant to either the NYLL or the FLSA and may elect the higher amount. See Charvac v. M & T Project Managers of New York, Inc., No. 12-CV-05637 (CBA)(RER), 2015 WL 5475531, at *4 (E.D.N.Y. June 17, 2015), adopted as modified by 2015 WL 5518348 (E.D.N.Y. Sept. 17, 2015).
If the employer shows that “the act or omission giving rise to such action was [performed] in good faith and that he had reasonable grounds for believing that his act or omission was not a violation” of the FLSA or NYLL, a court may decide not to award liquidated damages. 29 U.S.C. § 260; see NYLL § 198(1-a); see Castillo v. Hollis Delicatessen Corp., No. 1:22-CV-5476 (AMD)(PK), 2024 WL 4111108, at *8 (E.D.N.Y. Aug. 22, 2024), R&R adopted, No. 22-CV-5476 (AMD)(PK), 2024 WL 4107258 (E.D.N.Y. Sept. 6, 2024)
By defaulting, Defendants have not shown “good faith” such that liquidated damages should not be imposed. See, e.g., Herrera v. Tri-State Kitchen & Bath, Inc., No. 14-CV-1695 (ARR)(MDG), 2015 WL 1529653, at *12 (E.D.N.Y. Mar. 31, 2015); Sarmiento v. Flagge Contracting Inc., No. 22-CV-9718 (VSB)(JLC), 2024 WL 806137, *9 (S.D.N.Y. Feb. 27, 2024), R&R adopted, 2024 WL 1908607 (S.D.N.Y. May 1, 2024); Castillo, 2024 WL 4111108, at *8.
I respectfully recommend that Plaintiff be awarded $25,153.20 in liquidated damages under the NYLL, which reflects the sum of his unpaid overtime and promised wages owed.
D. Prejudgment Interest
Plaintiff seeks prejudgment interest under the NYLL. (Brenecki Aff. ¶ 15.) Prejudgment interest is available for underpayments under the NYLL, which here consists of unpaid overtime and promised wages. See NYLL § 198(1-a); Fermin, 93 F.Supp.3d at 30 (calculating prejudgment interest based on inter alia unpaid minimum wages and overtime pay).
In New York, prejudgment interest accrues at the statutory rate of nine percent per year. N.Y. C.P.L.R. § 5004. “Where . . . damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.” Id. § 5001(b). Courts have “wide discretion in determining a reasonable date from which to award pre-judgment interest.” Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994). “Most courts in this district calculate simple prejudgment interest in NYLL actions from the midpoint date of the claims through the date judgment is entered.” Perez Campos v. Quentin Mkt. Corp., No. 16-CV-05303 (DLI)(RER), 2018 WL 9945754, at *8 (E.D.N.Y. Oct. 17, 2018) (citing Fermin, 93 F.Supp.3d at 49), adopted Mar. 31, 2019; accord Brathwaite v. Martini Collections Inc., No. 22-CV-4929 (DEH)(GWG), 2024 WL 4942355, at *8 (S.D.N.Y. Dec. 3, 2024).
As Plaintiff's wage claims under the NYLL cover the period of June 1, 2022 through August 1, 2023, the midpoint is December 30, 2022. Accruing at nine percent, the annual prejudgment interest on Plaintiff's NYLL wage damages-$25,153.20-is approximately $2,263.79. That amount divided by 365 days results in daily interest of approximately $6.20. Accordingly, I respectfully recommend that Plaintiff recover prejudgment interest at a daily rate of $6.20 from December 30, 2022, through the entry of the judgment.
E. Post-Judgment Interest
While Plaintiff does not seek post-judgment interest, the Court must award it. Westinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir. 2004); see 28 U.S.C. § 1961(a) (post-judgment interest “shall be allowed on any money judgment in a civil case recovered in a district court” and “shall be calculated from the date of the entry of the judgment at a rate equal to the weekly average 1-year constant maturity Treasury yield . . . for the calendar week preceding the date of judgment.”); Lamaka v. Russian Desserts Inc., No. 18-CV-7354 (ILG)(VMS), 2021 WL 2188280, at *18 (E.D.N.Y. Feb. 12, 2021), R&R adopted, 2021 WL 2184870 (E.D.N.Y. May 28, 2021) (awarding post-judgment interest despite plaintiff not requesting it). Accordingly, I respectfully recommend that Plaintiff be granted post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, at the rate set forth in 28 U.S.C. § 1961.
F. Fifteen Percent Increase Penalty if Damages not Paid within Ninety Days
Plaintiff does not seek an automatic increase of fifteen percent for any unpaid amount of the judgment still pending after ninety days, as provided for in NYLL § 198(4). However, that provision mandates that “any judgment or court order awarding remedies under [NYLL § 198] shall provide that if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.” NYLL § 198(4) (emphasis added); see also Rodriguez v. Solares Corp., No. 16-CV-3922 (CBA)(SMG), 2018 WL 7252949, at *12 (E.D.N.Y. Aug. 14, 2018) (citing NYLL § 198(4) and applying the automatic increase of fifteen percent to all damages awarded under the NYLL not paid after ninety days), R&R adopted, 2019 WL 486883 (E.D.N.Y. Feb. 7, 2019). This increase is therefore awarded automatically.
The increase applies only to damages awarded under state law. See Id. (recommending that the fifteen-percent increase provided for under NYLL § 198(4) be limited to amounts “awarded exclusively under the NYLL”); see also De la Cruz Casarrubias v. Surf Ave Wine & Liquor Inc., No. 20-CV-3003 (AMD), 2021 WL 2227977, at *13 (E.D.N.Y. May 11, 2021) (citing Solares Corp. and limiting the fifteen-percent enhancement to damages awarded under the NYLL), R&R adopted, 2021 WL 2223275 (E.D.N.Y. June 2, 2021). Accordingly, I respectfully recommend that Plaintiff's damages, which are awarded under the NYLL, be increased by fifteen percent if Defendants fail to timely satisfy the judgment.
G. Joint and Several Liability
When multiple defendants are found to be a plaintiff's employer, “each [d]efendant is jointly and severally liable under the FLSA and NYLL for any damages awards made in [p]laintiff['s] favor.” Fermin, 93 F.Supp.3d at 37; see also Pineda v. Masonry Constr., Inc., 831 F.Supp.2d 666, 685-86 (S.D.N.Y. 2011) (holding that a plaintiff's allegations that an individual defendant “was an owner, partner, or manager” of the corporate defendant, “coupled with [d]efendants' default, suffice to . . . impose joint and several liability on each [defendant] for their respective violations of the wage laws.” (quotation and citation omitted)).
Because I have found that both Defendants were “employers” of Plaintiff, I respectfully recommend that they be held jointly and severally liable for their violations of the FLSA and NYLL.
H. Attorneys' Fees and Costs
Both the FLSA and NYLL allow prevailing plaintiffs to recover reasonable attorneys' fees and costs. See 29 U.S.C. § 216(b); NYLL §§ 198, 663(1). Plaintiff requests $3,105 in attorneys' fees and $534.00 in costs. (Brenecki Aff. ¶ 12, Pl. Aff. ¶ 32.)
1. Attorneys' Fees
District courts have broad discretion to determine the amount of attorneys' fees awarded, and the party requesting fees must submit documentation to support its request. Mahoney v. Amekk Corp., No. 14-CV-4131 (ENV)(VMS), 2016 WL 6585810, at *18 (E.D.N.Y. Sept. 30, 2016), R&R adopted, 2016 WL 6601445 (E.D.N.Y. Nov. 7, 2016). Courts must “us[e] their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of each component of a fee award.” Century 21 Real Estate LLC v. Bercosa Corp., 666 F.Supp.2d 274, 298 (E.D.N.Y. 2009) (quotation and citation omitted).
“[T]he lodestar method-the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a ‘presumptively reasonable fee.'” Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). Courts determine what constitutes a reasonable hourly rate through application of “the forum rule,” which states that “courts should generally use the hourly rates employed in the district in which the reviewing court sits.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (quotations and citation omitted). “If the Court finds that some of the time [the attorney billed] was not reasonably necessary[,] it should reduce the time for which compensation is awarded accordingly.” Mister Softee, Inc. v. Konstantakakos, No. 15-CV-4770 (SJ)(SMG), 2016 WL 11445964, at *6 (E.D.N.Y. June 27, 2016), R&R adopted, 2016 WL 4250314 (E.D.N.Y. Aug. 11, 2016) (quotation and citation omitted). “Where time entries are vague, duplicative, or otherwise inadequate, a court may make ‘an across-the-board reduction, or percentage cut, in the amount of hours.'” Id. (quoting T.S. Haulers, Inc. v. Cardinale, No. 9-CV-451 (SJF)(ARL), 2011 WL 344759, at *3 (E.D.N.Y. Jan. 31, 2011)). “Inadequate documentation” is another “ground[ ] for reduction of a fee award.” Bercosa Corp., 666 F.Supp.2d at 299 (citation omitted).
a) Hourly Rate
Plaintiff seeks fees for the work performed by his counsel, Nicole Brenecki, at a rate of $450 per hour. Ms. Brenecki obtained her J.D. from Brooklyn Law School in 2017 and is a founding member of Jodre Brenecki LLP. (Brenecki Aff. ¶ 7.) Ms. Brenecki is “the head of the firm's employment law practice,” was “named a ‘Super Lawyer - Rising Star',” has obtained “Lawyers of Distinction Award,” “regularly appear[s] as an employment law expert in various national and local media outlets,” and “has represented plaintiffs in approximately one hundred (‘100') lawsuits for unpaid wages and overtime brought under the [FLSA] and [NYLL].” (Id. ¶¶ 6-10.)
In this district, attorneys of Ms. Brenecki's experience generally are awarded rates from $200 to $350 per hour. See, e.g., Laboy v Quality Auto. Servs., Inc., No. 21-CV-2501 (NRM)(RML), 2024 WL 472983 (E.D.N.Y Feb 7, 2024) (awarding $350 for a senior associate who had 10 years of practice and succeeded in a complex matter); Alonso v. Spicy Pizza Corp., No. 24-CV-4194 (BMC), 2024 WL 4574145, at *2 (E.D.N.Y. Oct. 24, 2024) (awarding $300 to a “less experience[d] partner or associate”); Maldonado v. Loxton, Inc., No. 20-CV-5776 (LDH)(JAM), 2024 WL 4449293, at *16 (E.D.N.Y. Oct. 9, 2024) (awarding $500 to an attorney with over twenty years of practice); Ruiz v. MAP Foods Inc., No. 24-CV-02257 (JMW), 2024 WL 4350619, at *6 (E.D.N.Y. Sept. 30, 2024) (awarding $250 to a “Managing Attorney”); Melo v. Milagro Grocery Corp., No. 21-CV-4438 (PKC)(SJB), 2024 WL 4250267, at *13 (E.D.N.Y. Sept. 26, 2024) (finding $325 at the “high end for senior associates”); Solis v. Tropical Rest. Bar Inc., No. 23-CV-1707 (ENV)(MMH), 2024 WL 4271234, at *17 (E.D.N.Y. Sept. 19, 2024) (awarding $325 for a senior associate in practice since 2016).
Courts also consider the nature of the case in determining the appropriate rate. See, e.g., Kliger v. Liberty Saverite Supermarket Inc., No. 17-CV-2520 (FB)(ST), 2018 WL 4782342, at *9 (E.D.N.Y. Sept. 7, 2018), R&R adopted, 2018 WL 4783964 (E.D.N.Y. Oct. 3, 2018) (reducing the hourly rate of an attorney with over twenty years of experience from $450 to $350 because of “the nature and complexity of the action”).
Plaintiff's counsel provided no citations to any published cases in which courts awarded her, or someone with comparable experience, an hourly rate of $450. Given the relatively straightforward nature of this case and her years of practice, I recommend reducing Ms. Brenecki's hourly rate to $325 for the purpose of calculating Plaintiff's attorneys' fees award.
b) Reasonableness of Time Billed
“To determine whether the number of hours spent by Plaintiff's counsel was reasonable, the Court must ‘use [its] experience with the case, as well as [its] experience with the practice of law, to assess the reasonableness of the hours spent . . . in a given case.'” Litkofsky v. P & L Acquisitions, LLC, No. CV-15-5429 (DRH)(AKT), 2016 WL 7167955, at *10 (E.D.N.Y. Aug. 19, 2016) (quoting Fox. Indus., Inc. v. Gurovich, No. 03-CV-5166, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005)), R&R adopted, No. 15-CV-5429 (DRH)(AKT), 2016 WL 7168069 (E.D.N.Y. Dec. 8, 2016). Plaintiff's counsel included in her affirmation a table showing work performed in this case from November 21, 2023 to November 4, 2024. (Brenecki Aff. ¶ 12.)
Plaintiff's counsel seeks reimbursement for 6.33 hours of work. (Brenecki Aff. ¶ 12.) I find this amount reasonable.
c) Calculating the Recommended Fee Award
Multiplying the hours expended (6.33) by the hourly rate ($325), I respectfully recommend that Plaintiff be awarded $2,057.25 in attorneys' fees.
2. Costs
Plaintiff requests $534 in costs, comprised of $405 for filing the Complaint and $129 for service of process. (Pl. Aff. ¶ 32.)
I take judicial notice of the filing fee. See Joe Hand Promotions, Inc. v. Bernal, No. 18-CV-85 (ILG)(SJB), 2019 WL 885930, at *6 (E.D.N.Y. Feb. 22, 2019) (awarding plaintiff filing fee after taking judicial notice of it). Plaintiff submitted an invoice to support his requested service costs, which are reasonable. (Dkt. 16-3.)
Accordingly, I respectfully recommend that Plaintiff be awarded $534 in costs.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Motion be GRANTED with respect to Plaintiff's overtime and unpaid wages claims. Accordingly, I respectfully recommend that damages be awarded as follows:
- $23,233.20 in unpaid overtime wage damages;
- $1,920.00 in unpaid promised wage damages;
- $25,153.20 in liquidated damages for failure to pay promised wages and overtime wages.
I further recommend that Plaintiff be awarded $2,057.25 in attorneys' fees and $534.00 in costs and that Plaintiff be granted prejudgment interest at a daily rate of approximately $6.20 for his unpaid wage damages under the NYLL from December 30, 2022, until the date of judgment. In addition, I recommend that Plaintiff be granted post-judgment interest at the statutory rate and the fifteen-percent increase penalty if damages under the NYLL are not paid within ninety days of judgment or the expiration of time to appeal.
Plaintiff is directed to serve a copy of this Report and Recommendation on Defendants forthwith and file proof of service on the docket by January 3, 2025. Any written objections to this Report and Recommendation must be filed within 14 days of service of this report. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Failure to file objections within the specified time waives the right to appeal any order or judgment entered based on this Report and Recommendation. Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).
SO ORDERED: