Opinion
15 Civ. 5592 (NSR) (AEK)
06-16-2023
RAMIRO LEMUS, Plaintiff, v. TODD PEZZEMENTI and NORTHERN TREE SERVICE, Defendants.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
This action was commenced on July 17, 2015, by Plaintiff Ramiro Lemus (“Plaintiff” or “Lemus”). ECF No. 1 (“Complaint”). The Complaint asserts claims against Defendants Todd Pezzementi (“Pezzementi”) and Northern Tree Service (“Northern Tree” and, collectively with Pezzementi, “Defendants”) under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) for unpaid overtime; a claim under the NYLL for failure to provide proper wage statements; an unspecified claim for failure to pay wages for Lemus's last week of work; and a common law claim against Pezzementi for assault and battery.This matter is currently before the Court for an inquest on damages after the entry of a default judgment.
The Complaint also names Pezzementi's wife, Shawn Pezzementi, as a defendant, but by letter dated October 20, 2017, Lemus's counsel advised the Court that Lemus was discontinuing his claims against Shawn Pezzementi. ECF No. 65. Your Honor issued an order on October 23, 2017 indicating that the action was to be deemed discontinued as against Shawn Pezzementi. ECF No. 67.
PROCEDURAL HISTORY
On August 11, 2017, Magistrate Judge Lisa Margaret Smith issued an Order and Report and Recommendation granting Lemus's motion to strike Defendants' Answer, recommending that a default be entered against Defendants, and further recommending that Lemus be given permission to apply for entry of a default judgment against Pezzementi on the assault and battery claim. ECF No. 58. Magistrate Judge Smith also recommended that any application for the entry of a default judgment against Defendants on the claims for violations of the FLSA and the NYLL and for unpaid wages be held in abeyance, because Shawn Pezzementi was still a codefendant on those claims at that time. Id. Your Honor adopted Magistrate Judge Smith's Report and Recommendation on September 19, 2017, and ordered the entry of defaults against Defendants pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. ECF No. 63. The Clerk of Court issued a certificate of default as to Defendants on September 26, 2017. ECF No. 64. After Lemus discontinued his claims against Shawn Pezzementi he applied for entry of a default judgment against Defendants as to all claims against them, ECF No. 70, and Defendants thereafter applied to set aside the default, ECF Nos. 71-72 (refiled at ECF Nos. 73-75).
The Court assumes the parties' familiarity with the extended procedural history that preceded the issuance of the August 11, 2017 Order and Report and Recommendation. That background information-which is not relevant to the damages issues addressed in this Report and Recommendation-is set forth in detail in the August 11, 2017 order, ECF No. 58, as well as in a prior order issued by Magistrate Judge Smith on April 27, 2017, ECF No. 49.
On January 10, 2020, Your Honor issued an Opinion and Order denying Defendants' application to set aside their default and granting Lemus's application for the entry of a default judgment against Defendants “as to liability for [Lemus's] claims sounding in violation of the overtime provisions of the NYLL and the FLSA, violation of the wage notice provisions of the [Wage Theft Protection Act], unpaid wages, and assault and battery.” ECF No. 78; Lemus v. Pezzementi, No. 15-cv-5592 (NSR), 2020 WL 133591, at *7 (S.D.N.Y. Jan. 10, 2020). The matter was referred back to Magistrate Judge Smith for an inquest into damages recoverable by Lemus on those claims, as well as the amount of reasonable attorneys' fees due under the FLSA and the NYLL. Id.; see ECF No. 77 (amended order of reference).
The Complaint pled the NYLL and FLSA claims on behalf of Lemus “and all others similarly situated,” but the default judgment entered against Defendants was only as to Lemus's individual claims. Any potential claims on behalf of a class or collective that were originally asserted here have been abandoned and do not fall within the scope of this inquest proceeding.
The Wage Theft Prevention Act (“WTPA”), NYLL § 195, is an amendment to the NYLL. See Lemus, 2020 WL 133591, at *5 n.5. Your Honor explained that “Plaintiffs failure to cite specifically to the WTPA in the Complaint does not preclude a finding that Defendants violated the WTPA.” Id.
At a conference held on February 7, 2020, Magistrate Judge Smith set a schedule for the parties' inquest submissions: Lemus's papers were due on March 9, 2020; Defendants' papers were due on April 8, 2020; and Lemus's reply papers, if any, were due on April 16, 2020. See Docket Sheet, Minute Entry dated 2/7/2020. Having not received any papers from Lemus by the March 9 deadline, on April 1, 2020, Magistrate Judge Smith issued an order directing Lemus to show cause by no later than April 8, 2020 why she should not issue a report and recommendation recommending that Your Honor deny Lemus's request for the entry of a default judgment awarding him money damages. ECF No. 81. Lemus's counsel submitted a declaration on April 8, 2020, during the height of the Covid-19 pandemic, explaining that Lemus's submission “was delayed because Mr. Lemus's Clinical Neuropsychologist was uncomfortable providing an affidavit/declaration because he had not seen Mr. Lemus in approximately three years,” and “[b]ecause Mr. Lemus needs a translator, we were no [sic] able to schedule an appointment before all non-essential medical visits were cancelled.” ECF No. 82 ¶¶ 3-4. Lemus's counsel “requested that the Court provide Mr. Lemus additional time to meet with his Clinical Neuropsychologist after the limits on non-emergent/non-essential medical care is [sic] lifted or relaxed.” Id. ¶ 7. Magistrate Judge Smith issued an order on April 9, 2020, granting Lemus's counsel's request but ordering that “Plaintiff shall provide the Court with an update 30 days from the date hereof, informing the Court as to Plaintiff's ability to meet with his clinical neuropsychologist and when such appointment will be scheduled to occur.” ECF No. 83 (emphasis in original). Magistrate Judge Smith added that “[a]lthough the Court understands that in-person, non-essential medical appointments have been cancelled for the time being, Plaintiff must provide the Court with an explanation as to why he is unable to meet with his clinical neuropsychologist remotely, even though he needs a translator, who may participate remotely as well.” Id.
Lemus failed to file an update within 30 days of the April 9 order, nor did he contact the Court in any other manner. Therefore, on May 12, 2020, Magistrate Judge Smith again issued an order directing Lemus to show cause, this time by no later than May 19, 2020, why she should not issue a report and recommendation recommending that Your Honor deny Lemus's request for the entry of a default judgment awarding him money damages. ECF No. 85. Magistrate Judge Smith instructed that in response to her order, Lemus was to provide “an explanation for his inability to meet with his clinical neuropsychologist either in person or remotely within 30 days from the date hereof,” and that there would be “no further extensions of time beyond that included herein.” Id.
On May 19, 2020, Lemus's counsel submitted another declaration, explaining that Lemus's submission “remains delayed because Mr. Lemus's Clinical Neuropsychologist is not uncomfortable [sic] providing an affirmation/declaration because he had not seen Mr. Lemus in approximately three years. He believes an examination and in office testing, which cannot be replicated remotely, should be performed before he provides an affirmation/declaration to the Court, which will, in part, comment on Mr. Lemus's future prognosis.” ECF No. 86 ¶ 3. Counsel added that “[t]he Governor's Stay At Home Order remains in place, and non-essential medical visits are not taking place. Additionally, the needed translator is subject [to] the Stay At Home Order.” Id. ¶ 4. Again, Lemus's counsel “requested that the Court provide Mr. Lemus additional time to meet with his Clinical Neuropsychologist after the limits on non-emergent/non-essential medical care is [sic] lifted or relaxed.” Id. ¶ 6.
Claiming that Lemus had failed to show good cause for his delayed filings, Defendants filed a letter motion on June 17, 2020 requesting that Magistrate Judge Smith issue a report and recommendation recommending that Your Honor deny Lemus's request for the entry of a default judgment awarding him money damages. ECF No. 87. In the alternative, “in light of the delay by plaintiff in submitting his calculation of alleged damages and the prejudice to defendants resulting from the delay,” Defendants requested that “an evidentiary hearing be held after the parties have made their respective submissions” to the Court. Id. at 1. Magistrate Judge Smith denied the letter motion without prejudice, directing Lemus's counsel “to explain why defendants' application should not be granted, [by] no later than June 25, 2020, 5:00 pm.” ECF No. 88.
Lemus's counsel filed yet another declaration on June 25, 2020, stating that he had “spoken with Dr. Robert J. Dunkle of Neuropsychological Services of Westchester, and he advises that he will be able to have an office visit with Mr. Lemus in August.” ECF No. 89 ¶ 4. Lemus's counsel added that he had “arranged for a translator to appear at the office visit.” Id. Lemus's counsel “requested that the Court not issue a Report and Recommendation recommending that [Your Honor] deny Plaintiff's request for the entry of a default judgment awarding him money damages,” and “that the Court provide Mr. Lemus additional time to meet with his Clinical Neuropsychologist in August and for Dr. Robert J. Dunkle to provide an affirmation.” Id. ¶¶ 5-6. On June 29, 2020, Magistrate Judge Smith ordered that Lemus “shall comply with his obligations to provide a report in support of his claimed psychological damages no later than August 21, 2020,” and added that his failure to do so “will result in a Report and Recommendation as previously discussed.” ECF No. 90.
On August 21, 2020, Lemus finally filed his inquest submission. ECF No. 91. His counsel's declaration in support thereof states, however, that although Lemus “was anticipating providing a medical affirmation/declaration from Mr. Lemus's Clinical Neuropsychologist, . . . lack of permanency regarding Mr. Lemus's concussion related injuries did not warrant the expense of the affirmation.” Id. ¶ 13 n.1. Defendants filed their submission in opposition on October 20, 2020. ECF Nos. 101-102.
The matter was reassigned to the undersigned following Magistrate Judge Smith's retirement from the bench. See Docket Sheet, Entries dated 10/15/2020. In reviewing the parties' submissions the Court noted various deficiencies, including the submission of and apparent reliance on unauthenticated documents. Accordingly, the Court issued an order that identified these issues and provided the parties an opportunity to file supplemental submissions to address them. ECF No. 105. Both parties filed their supplemental submissions on July 25, 2022. ECF Nos. 112-113. Because the Court found that Lemus's supplemental submission still did not provide a sufficient basis for the Court to recommend any award of damages for his FLSA and NYLL claims, the Court scheduled an in-person inquest hearing, which was conducted on February 6, 2023. See ECF No. 115; Docket Sheet, Minute Entry dated 2/6/2023. At the inquest hearing, Lemus appeared and testified through an interpreter. Shawn Pezzementi also appeared on Defendants' behalf, but she declined to testify despite being given the opportunity to do so. At Defendants' request, the Court allowed the filing of a post-hearing submission, and also permitted Lemus to file a response, on the question of whether expert testimony was required to establish a permanent physical injury resulting from the assault. Tr. at 57-60; see ECF Nos. 118, 119.
For the reasons set forth below, I respectfully recommend that Lemus be awarded damages as follows: (1) overtime wages in the amount of $12,000; (2) unpaid wages in the amount of $229.25; (3) liquidated damages in the amount of $12,000; (4) pre-judgment interest on the total award of NYLL damages (i.e., items (1) and (2)) of $12,229.25 from December 9, 2013 until the date of entry of judgment at the rate of 9 percent per annum; (5) damages for medical expenses in the amount of $702.25; (6) damages for past pain and suffering in the amount of $20,000; (7) pre-judgment interest on the award of damages for past pain and suffering from the date of this Report and Recommendation until the date of entry of judgment at the rate of 9 percent per annum; (8) $1,100.05 in costs; (9) punitive damages in the amount of $10,000; and (10) post-judgment interest in accordance with 28 U.S.C. § 1961.
FACTUAL BACKGROUND
The following facts are drawn from the Complaint, the inquest submissions filed by Lemus in support of his application for damages, and Lemus's inquest hearing testimony.
To the extent there were any inconsistencies between Lemus's testimony at the inquest hearing and any of the allegations in the Complaint, the Court relies on Lemus's sworn testimony at the hearing.
Lemus worked for Defendants as a tree cutter for multiple different periods of time; his final period of employment with Defendants-which is the only period of employment relevant to Plaintiff's wage claims in this lawsuit-began in approximately May 2013 and ended in July 2014. ECF No. 91 (“Braunstein Decl.”) ¶ 3; ECF No. 120 (Inquest Hearing Transcript) (“Tr.”) at 10, 45. Lemus was paid $25 per hour and worked on average 55 hours per week. Tr. at 11, 13. There were days when Lemus could not work due to weather conditions, and Lemus conceded that he did not always work the same number of days each week, but Lemus testified that he generally worked six days per week. Id. at 12-13. Lemus was “paid cash and a little by check.” Id. at 11, 45. Lemus was not paid overtime compensation when he worked more than 40 hours in a work week. Lemus Decl. ¶ 8. According to Lemus, Defendants knowingly and willfully operated their business with a policy of (1) not paying overtime to their employees; and (2) not providing proper wage statements to their employees. Compl. ¶¶ 28-29.
Lemus's hearing testimony on this point differed from what was stated in earlier filings in the case. See Compl. ¶¶ 18-19 (“Plaintiff had worked for Defendants in the past. In or about September 2013, Plaintiff was again hired by Defendants to work as a tree cutter for Defendants. Plaintiff was fired on July 21, 2014.”); ECF No. 91-1 (“Lemus Decl.”) ¶ 2 (“I worked at Northern Tree Services from approximately 2012 until spring 2015.”). At the same time, Lemus's hearing testimony was consistent with other submissions. See Braunstein Decl. ¶ 3 (“Mr. Lemus worked for Defendants as a tree cutter from May 2013 until July 21, 2014.”); Lemus Decl. ¶ 5 (Pezzementi fired Lemus on July 21, 2014). In their papers opposing Lemus's inquest submission, Defendants likewise state that Lemus was employed by Northern Tree from May 2013 through July 21, 2014. See ECF No. 101 (“Santos Decl.”) ¶ 5; see also ECF No. 113 (“Shawn Pezzementi Suppl. Decl.”) ¶ 3 (“Upon information and belief, from May 2013 until July 21, 2014, when Mr. Lemus was terminated, Plaintiff Ramiro Lemus . . . worked for Northern Tree as a tree trimmer and related services of Northern Tree's business.”). Lemus's first paystub for the relevant period was for the week that ended Friday, May 3, 2013; that week began on Monday, April 29, 2013. Shawn Pezzementi Suppl. Decl. Ex. A at 1, 2; see also footnote 10, infra. For purposes of this inquest, the Court credits Lemus's hearing testimony, which is consistent with other evidence in the record, including the medical and payroll records submitted to the Court and received in evidence. The relevant period of Lemus's employment with Northern Tree is April 29, 2013 through July 21, 2014.
On July 21, 2014, Lemus cut his hand with a chainsaw while working for Defendants. Id. ¶ 34; see Tr. at 14; Lemus Decl. ¶ 5. Lemus was fired the same day. Compl. ¶ 37; Lemus Decl. ¶ 5 (Pezzementi fired Lemus for injuring himself on the job); see also Tr. at 29 (day of assault was Lemus's last day working for Defendants). According to Lemus, Pezzementi arrived on the scene after Lemus cut his hand and began insulting Lemus. Tr. at 14. After Lemus explained to Pezzementi what had happened, Lemus turned around and started to walk away, but Pezzementi followed and hit Lemus on the back of his head and on his back. Id. at 15. Lemus testified that he was “thrown on the floor” and “fainted for a second or so,” and then Pezzementi “started kicking [his] back.” Id. Pezzementi said Lemus “could not do anything because [Pezzementi] had many friends in the police.” Id. In his pre-hearing declaration, Lemus described his injuries as “a closed head injury with loss of consciousness, acute cervical strain, and a lumbar contusion” and stated that he “continue[d] to suffer from headaches and have right sided tingling and numbness.” Lemus Decl. ¶ 6. Lemus testified at the inquest hearing that he still suffers from back pain and headaches as a result of the assault. Tr. at 30. Defendants did not pay Lemus's wages for his last week of work. Id. at 29.
DISCUSSION
I. Legal Standard
Upon the default of a party, a court must accept as true all of the factual allegations of the complaint except those relating to damages, and a plaintiff is entitled to all reasonable inferences from the evidence offered. See, e.g., Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). “When assessing the propriety of a damages award after a judgment by default is entered, a court must be satisfied initially that the allegations of the complaint are well pleaded.” Nwagboli v. Teamwork Transp. Corp., No. 08-cv-4562 (JGK) (KNF), 2009 WL 4797777, at *2 (S.D.N.Y. Dec. 7, 2009) (quotation marks omitted). “If the allegations are well-pleaded, or, in other words, establish liability for a claim, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible to mathematical computation.” Id. (cleaned up). The plaintiff must prove damages with “reasonable certainty.” See, e.g., Trinity Biotech, Inc. v. Reidy, 665 F.Supp.2d 377, 380 (S.D.N.Y. 2009) (citing cases). As a limit on a plaintiff's award, Rule 54(c) of the Federal Rules of Civil Procedure requires that “a default judgement must not differ in kind from, or exceed in amount, that which is demanded in the pleadings.” GAKM Res. LLC v. Jaylyn Sales Inc., No. 08-cv-6030 (GEL), 2009 WL 2150891, at *2 (S.D.N.Y. July 20, 2009) (cleaned up). But “even when the defendant defaults and is not present to object, damages must be based on admissible evidence.” House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order).
II. Analysis
Your Honor already has granted a default judgment as to Defendants' liability on Lemus's claims for (1) violation of the overtime provisions of the FLSA and the NYLL, (2) violation of the wage notice provisions of the WTPA, (3) unpaid wages, and (4) assault and battery. See Lemus, 2020 WL 133591, at *7. Accordingly, this Court considers only the amount of damages recoverable by Lemus on each of those claims.
A. FLSA and NYLL Claims
1. Unpaid Overtime Compensation Under the FLSA and the NYLL
Pursuant to both the FLSA and the NYLL, employees must be paid 1.5 times their regular rate for all overtime hours worked, i.e., for all hours worked in excess of 40 hours per week. See 29 U.S.C. § 207(a)(1); N.Y. Comp. Codes R. & Regs. Tit. 12 § 142-2.2. Although Lemus alleges that Defendants are in violation of both the FLSA and the NYLL with respect to overtime compensation, “[a] plaintiff may not recover under both [the FLSA and the NYLL] for the same injury. He [or she] may, however, elect to recover damages under the statute that provides the greater recovery.” Guallpa v. N.Y. Pro Signs Inc., No. 11-cv-3133 (LGS) (FM), 2014 WL 2200393, at *4 (S.D.N.Y. May 27, 2014), adopted by 2014 WL 4105948 (S.D.N.Y. Aug. 18, 2014). The NYLL has a six-year statute of limitations, see NYLL §§ 198(3), 663(3), and Lemus filed his Complaint on July 17, 2015; accordingly, calculating damages pursuant to the NYLL allows Lemus to recover unpaid overtime compensation for the entirety of his employment from April 29, 2013 to July 21, 2014, without the Court even having to consider whether Lemus may avail himself of the three-year statute of limitations applicable in FLSA cases involving “willful” violations, see 29 U.S.C. § 255(a). In addition, Lemus's potential recovery under the NYLL is greater because “an award of liquidated damages under the FLSA would preclude [Lemus] from recovering pre-judgement interest,” whereas the NYLL “permits the recovery of [both] liquidated damages and pre-judgement interest.” Diaz v. AJE Mgmt. Corp., No. 15-cv-1602 (AT) (JCF), 2017 WL 746439, at *5 n.14 (S.D.N.Y. Jan. 10, 2017) (citing NYLL § 198(1-a)), adopted by 2017 WL 748997 (S.D.N.Y. Feb. 23, 2017). Accordingly, the Court will calculate Lemus's damages for unpaid overtime compensation under the NYLL.
“An employee bringing an action for unpaid overtime compensation bears the burden of proving that the employee was not properly compensated for work performed.” Lopez v. 1923 Sneaker, Inc., No. 18-cv-3828 (WFK) (RER), 2021 WL 1845057, at *5 (E.D.N.Y. Mar. 5, 2021), adopted by 2021 WL 1259623 (E.D.N.Y. Apr. 6, 2012). “However, under both the FLSA and the NYLL, when an employer's records are inadequate, an employee may meet this burden by producing sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. (quotation marks omitted). “Moreover, where the employer has defaulted, as here, the employee's recollection and estimates of hours worked are presumed to be correct.” Id. (cleaned up); see also Guallpa, 2014 WL 2200393, at *3 (“In the absence of rebuttal by defendants, plaintiffs' recollection and estimates of hours worked are presumed to be correct.”) (cleaned up). “An employer may refute an employee's claims by presenting the employee's employment records. Under both the FLSA and the NYLL, an employer is required to maintain employment records regarding an employee's wages and hours.” Lopez, 2021 WL 1845057, at *6 (citing 29 U.S.C. § 211(c); N.Y. Lab. L. § 196-a). “Accordingly, an employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he [or she] kept records in accordance with the FLSA's recordkeeping provisions.” Id. (cleaned up).
At the inquest hearing, Lemus testified that during the relevant period from April 29, 2013 through July 21, 2014, he was paid $25 per hour and worked on average 55 hours per week. Tr. at 10, 11, 13, 45. Although Lemus did not specify the number of weeks that he worked for Defendants, he testified that he worked every week during that period. Id. at 45.
Notably, Lemus testified that he currently works for a company called Perfect Cut, where he performs work similar to the work he performed at Northern Tree, including climbing trees. Tr. at 34, 35. Lemus testified that his hourly wage when he began working at Perfect Cut in approximately 2016 was $25 per hour. Id. at 39.
Defendants submitted opposition papers prior to the inquest hearing-these filings contested Lemus's pre-hearing assertion (originally made via Lemus's own pre-hearing declaration) that he worked 50-55 hours per week and was not paid overtime wages, and disputed his claimed hourly wage. ECF No. 102 (“Shawn Pezzementi Decl.”); see Shawn Pezzementi Suppl. Decl. In her supplemental declaration, for example, Mrs. Pezzementi asserted that Lemus was paid an hourly wage of $10, and was never paid in cash for any work that he performed for Northern Tree. See Shawn Pezzementi Suppl. Decl. ¶¶ 7, 8. Mrs. Pezzementi was present at the inquest hearing on behalf of Defendants and had the opportunity to provide testimony to refute Lemus's live, in-person testimony regarding his hours and his wages, but she declined to do so. The fact that Mrs. Pezzementi was unwilling to testify in court under oath, and submit to questioning from the Court and cross-examination from Plaintiff's counsel, makes it impossible for the Court to give significant credence to any of the statements in her declaration that sought to undercut Lemus's assertions regarding the hours he worked and his rate of pay.To the extent the Court credits Mrs. Pezzementi's declarations at all, the Court finds that Lemus's in-person testimony regarding the hours he worked and his hourly rate of pay was substantially more credible than the written declarations submitted by Defendants.
Defendants also attached to their post-hearing submission a copy of a new affidavit from Mrs. Pezzementi that is virtually identical to the supplemental declaration. ECF Nos. 1181, 118-2. Aside from the fact that the Court did not authorize the submission of this additional sworn statement from Mrs. Pezzementi, it is not a substitute for her providing testimony under oath at the hearing. Accordingly, the Court has not considered the new affidavit for purposes of the inquest.
The Court did receive in evidence copies of payroll records that Defendants maintained regarding Lemus's employment. Tr. at 46-47; see Shawn Pezzementi Suppl. Decl. Ex. A.The payroll records purport to include summaries of all of Lemus's earnings from the pay periods in 2013 and 2014 during which he worked for Defendants, as well as copies of what appear to be paystubs that would have accompanied the paychecks issued to Lemus by Defendants. See Shawn Pezzementi Suppl. Decl. Ex. A. Notably, however, the payroll records do not evidence Lemus's hourly rate of pay, the number of hours per day that he worked, or the number of days per week that he worked. Moreover, Lemus testified credibly that he was “paid cash and a little by check.” Tr. at 11, 45. The Court therefore has no reason to believe that the payroll records provide a complete picture of the manner in which Lemus was compensated by Defendants, and Mrs. Pezzementi's decision not to provide live testimony to contradict Lemus's account, or even to attest to the accuracy and completeness of the payroll records, makes it impossible for the Court to view these documents as verifiable evidence.
The Court refused to consider the payroll records originally submitted by Defendants because they were unauthenticated and therefore inadmissible. See ECF No. 105. Defendants cured this deficiency by having Shawn Pezzementi authenticate the records in her supplemental declaration. See Shawn Pezzementi Suppl. Decl. ¶ 6 (“I declare that the payroll records attached hereto as exhibit A are true and accurate duplicate [sic] of the payroll records maintained by defendants in their normal course of business as to the times Mr. Lemus worked for Northern Tree from the period of in or about May 2013 to July 21, 2014.”).
In light of the inadequacy of Defendants' evidence to counter Lemus's testimony regarding the number of hours per day, number of days per week, and number of weeks per year that he worked, or regarding his rate of pay, the Court concludes that Lemus has established his entitlement to overtime wages for his period of employment with Defendants from April 29, 2013 through July 21, 2014.
Based on the evidence presented, the Court makes the following findings: (i) the period from April 29, 2013 through July 21, 2014 constitutes 64 weeks of work;(ii) Lemus worked for 55 hours per week for 64 weeks; (iii) Lemus's regular hourly wage was $25 per hour; (iv) Lemus's proper overtime rate would have been $37.50 per hour; and (v) Lemus was paid only his regular hourly rate, and never paid his proper overtime rate, for the overtime hours he worked. Lemus is entitled to payment at the overtime rate for 15 hours per week for 64 weeks of work-a total of 960 overtime hours. For these hours, Lemus was compensated at his regular rate of $25 per hour, instead of the proper overtime rate of $37.50 per hour. The shortfall in Lemus's compensation between April 29, 2013 and July 21, 2014 was $12,000-that is, an hourly shortfall of $12.50 per hour (the difference between the overtime rate and Lemus's regular pay rate), multiplied by 960 hours.
See https://oldcalendars.com/2013-calendar/ (last visited 6/15/2023); https://oldcalendars.com/2014-calendar/ (last visited 6/15/2023); see also Fed.R.Evid. 201(b)(2); Nassry v. St. Luke's Roosevelt Hosp., No. 13-cv-4719 (GHW), 2016 WL 1274576, at *13 n.8 (S.D.N.Y. Mar. 31, 2016) (court may take judicial notice of calendar). The first week in this period is the week that ended on Friday, May 3, 2013. The Court includes this week in the calculation of Lemus's employment period in part based on Lemus's testimony about beginning the relevant period of employment in May 2013, and in part on the payroll records from Defendants which show that Lemus received a paystub on May 3, 2013 for what appears to be a full week of work. See Shawn Pezzementi Suppl. Decl. Ex. A at 1, 2.
Accordingly, I respectfully recommend that Lemus be awarded overtime compensation in the amount of $12,000.
2. Wage Notice Violations
Lemus does not state anywhere in his inquest submissions that he is seeking damages for violation of the wage notice provisions of the WTPA, nor did he raise this issue at the inquest hearing. Accordingly, it appears that Lemus has abandoned this claim, and I decline to recommend an award of damages for this violation. See, e.g., Krasner v. RAHFCO Funds LP, No. 11-cv-4092 (VB) (PED), 2016 WL 8461192, at *3 n.6 (S.D.N.Y. Dec. 21, 2016) (“Plaintiffs' inquest submissions do not address their claims under New York law for an accounting and imposition of a constructive trust. Accordingly, it appears plaintiffs have abandoned their claims for equitable relief.”), adopted sub nom. Krasner v. Rahfco Mgmt. Grp., LLC, 2017 WL 933114 (S.D.N.Y. Mar. 7, 2017).
3. Unpaid Wages
Lemus alleges in the Complaint that Defendants did not pay him wages “for time worked during his last week of employment.” Compl. ¶ 40. More specifically, Lemus's counsel's declarations in support of his request for damages states that Lemus “was also not paid for July 21, 2014, which is an additional $300.00.” Braunstein Decl. ¶ 20; see Braunstein Suppl. Decl. ¶ 15 (same). At the inquest hearing, Lemus testified that he was not paid for the last week that he worked, and that the last day he worked was “the day of the assault,” Tr. at 29, that is, July 21, 2014, see Compl. ¶ 34; Tr. at 14; Lemus Decl. ¶ 5. While Lemus testified that he did not recall how many hours he worked during his final week of employment or what day of the week the assault occurred, Tr. at 29, the Court takes judicial notice of the fact that July 21, 2014 was a Monday. See https://oldcalendars.com/july-2014-calendar/ (last visited 6/15/2023); see also Fed.R.Evid. 201(b)(2); Nassry, 2016 WL 1274576, at *13 n.8. The Court therefore finds that Lemus's final “week” of employment at Northern Tree consisted of a single day of work. Even though Lemus testified that he was injured on the job that day, it is appropriate to credit Lemus for a full day of work, as medical records received in evidence indicate that Lemus was not admitted to Nyack Hospital until 6:06 p.m. on July 21, 2014. See Braunstein Decl. Ex. F. Because Lemus testified that he worked six days per week for a total of 55 hours per week, Tr. at 12-13, the Court concludes that Lemus worked for 9.17 hours on July 21, 2014 (55 hours/week 6 days/week = 9.17 hours). Given Lemus's testimony that he was paid $25 per hour, id. at 11, I respectfully recommend an award of $229.25 for unpaid wages for July 21, 2014 (9.17 hours x $25/hour = $229.25).
4. Liquidated Damages
In his supplemental inquest submission, Lemus makes a general request for punitive damages as to all of his claims. See Braunstein Suppl. Decl. ¶¶ 19-21. In the prayer for relief in the Complaint, Lemus requests an award of “liquidated and/or punitive damages as a result of Defendants' willful failure to pay overtime compensation pursuant to New York Labor Law.” Compl. at p. 8. Because liquidated damages under the NYLL are considered punitive in nature, see Tambriz v. Taste & Sabor LLC, 577 F.Supp.3d 314, 331 (S.D.N.Y. 2021), adopted by 2022 WL 282918 (S.D.N.Y. Jan. 31, 2022), and because Lemus does not provide any other legal basis for the award of punitive damages on his NYLL claim for overtime compensation, the Court treats the request for punitive damages in Lemus's supplemental inquest submission as a request for liquidated damages under the NYLL.
“In any action instituted in the courts upon a wage claim by an employee . . . in which the employee prevails, the court shall allow such employee to recover . . . unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.” N.Y. Lab. Law § 198(1-a); see also N.Y. Lab. Law § 663. “Defendants that fail to respond to a motion for default judgment necessarily fail to carry the burden of demonstrating good faith.” Herrera Lopez v. Metrowireless 167 Inc., No. 18-cv-10754 (JPO), 2020 WL 289785, at *3 (S.D.N.Y. Jan. 21, 2020). Here, although Defendants filed written inquest submissions and provided payroll records, which were admitted in evidence at the inquest hearing, Defendants did not provide evidence that they had a good faith basis to believe they were acting in compliance with the law. Here again, Mrs. Pezzementi's unwillingness to provide testimony under oath at the inquest hearing to explain or attempt to justify Defendants' payroll practices makes it impossible for the Court to conclude that Defendants had any basis-let alone a good faith basis-to believe that their underpayment of wages was in compliance with the law. The Court therefore finds that Lemus has established his entitlement to liquidated damages under the NYLL equal to 100 percent of his unpaid overtime compensation.
Accordingly, I respectfully recommend that Lemus be awarded liquidated damages in the amount of $12,000.
The Court declines to recommend an award of liquidated damages with respect to Lemus's claim for one day of unpaid wages-Lemus did not request such damages in the Complaint, and as previously noted, “a default judgement must not differ in kind from, or exceed in amount, that which is demanded in the pleadings.” GAKM Res. LLC, 2009 WL 2150891, at *2 (cleaned up).
5. Pre-Judgment Interest
In the prayer for relief in the Complaint, Lemus generally requests an award of prejudgment interest. “Under the NYLL, . . . prejudgment interest may be awarded pursuant to the New York Civil Practice Laws and Rules (‘N.Y.C.P.L.R.') in addition to liquidated damages.” Begum v. Ariba Disc., Inc., No. 12-cv-6620 (DLC), 2015 WL 223780, at *3 (S.D.N.Y. Jan. 16, 2015) (citing Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999)). Under the NYLL, prejudgment interest is “applied against compensatory damages only”-in other words, pre-judgment interest is not applicable to the liquidated damages portion of the NYLL award. Castellanos v. Mid Bronx Cmty. Hous. Mgmt. Corp., No. 13-cv-3061 (JGK), 2014 WL 2624759, at *5 (S.D.N.Y. June 10, 2014).
Pre-judgment interest is recoverable under New York law at the rate of 9 percent per annum either from “the earliest ascertainable date the cause of action existed” or, “[w]here such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.” N.Y. C.P.L.R. §§ 5001(b), 5004; Tambriz, 577 F.Supp.3d at 331 (applying 9 percent pre-judgment interest rate to NYLL claims). “Simple pre-judgment interest is calculated by multiplying the principal by the interest rate by the time period from a singular, midpoint date of accrual of damages up until and including the date judgment is entered.” Castellanos 2014 WL 2624759, at *5 (cleaned up).
In this case, damages “were incurred at various times,” as Defendants failed to pay Lemus overtime compensation over the course of approximately 14 months. Courts have used the midpoint of a plaintiff's period of employment as the intermediate date from which to calculate pre-judgment interest in cases such as this. See, e.g., Herrera Lopez, 2020 WL 289785, at *4 (“Courts often choose the midpoint of the plaintiff's employment within the limitations period.”) (cleaned up); Guallpa, 2014 WL 2200393, at *7. For Lemus's relevant period of employment-April 29, 2013 through July 21, 2014-the midpoint, for purposes of calculating pre-judgment interest, is December 9, 2013.
Accordingly, I respectfully recommend that Lemus be awarded pre-judgment interest on his total award of NYLL damages of $12,229.25 ($12,000 in unpaid overtime compensation + $229.25 in unpaid wages) from December 9, 2013 until the date of entry of judgment at the rate of 9 percent per annum.
B. Assault and Battery Claims
Compensatory damages, which are recoverable for assault and battery, “compensate the injured victim for injuries actually endured.” Wright v. Musanti, No. 14-cv-8976 (KBF), 2017 WL 253486, at *11 (S.D.N.Y. Jan. 20, 2017) (quotation marks omitted), aff'd, 887 F.3d 577 (2d Cir. 2018). “To recover compensatory damages, a claimant must present evidence that provides the finder of fact with a reasonable basis upon which to calculate the amount of damages incurred.” Id. (cleaned up). Although “[e]vidence of injury [is] not necessary to establish [the defendant's] liability for the respective torts of assault and battery, . . . such evidence is required if [the plaintiff] is to sustain a claim for compensatory damages caused by the assault and battery.” Brutus v. Silverseal Corp., 439 Fed.Appx. 28, 29 (2d Cir. 2011) (summary order). “[Compensatory damages cannot be ‘merely speculative, possible, or imaginary.'” Id. (quoting In re Rothko's Estate, 43 N.Y.2d 305, 323 (1977)).
1. Medical Expenses
In his initial inquest submission, Lemus sought to recover medical expenses that stemmed not from the assault and battery, but from the laceration he suffered on his hand while operating a chainsaw at work:
[B]ecause Defendants did not have the required Workers' Compensation insurance and/or improperly disputed the claim, Mr. Lemus is entitled to compensation for the hand injury suffered on the job. . . . Defendants are liable for all damages relating to Mr. Lemus having his hand cut by a chainsaw. . . . Because Defendants did not have the required Workers' Compensation insurance, Mr. Lemus's [ sic ] has $8,000.00 in unpaid medical bills.
Braunstein Decl. ¶¶ 14-17; see Lemus Decl. ¶ 7 (“The hospital advised that Defendants did not [ sic ] Workers' Compensation insurance, and I was billed $8,000.00 for my medical care.”).
Not only is Lemus not entitled to recover damages for medical expenses unrelated to the injuries he suffered as a result of the assault and battery, but this Court already has ruled that Lemus is not entitled to damages for Defendants' alleged violation of Section 50 of the New York Workers' Compensation Law. See ECF No. 105 at 1 n.2 (“Though Plaintiffs original inquest submission attempts to seek damages for Defendants' alleged violation of Section 50 of the New York Workers' Compensation Law, Judge Roman made clear that Plaintiff is not entitled to damages based on this theory.”) (citing Lemus, 2020 WL 133591, at *5).
At the inquest hearing, the Court received in evidence two medical bills covering Lemus's treatment at Nyack Hospital on July 21 and 22, 2014. Tr. at 25 (receiving in evidence Plaintiff's Exs. 1 and 2). The bills were originally for a total of $8,858.51, but due to unspecified “adjustments,” a balance of only $968.92 remains ($800 on the bill for July 21, 2014 and $168.92 on the bill for July 22, 2014); Lemus testified that he has never paid these outstanding amounts. Id. at 24-26, 28. The invoices do not specify how much of the remaining balance on the bills is attributable to medical treatment rendered in connection with Lemus's injuries stemming from the assault. But it is apparent from the July 21, 2014 bill that a very large expense, amounting to approximately two-thirds of the total charges for that date, was incurred for a “CT Scan.” See Pl. Ex. 2. Moreover, the medical records received in evidence show that two different CT scans-of Lemus's brain and of his cervical spine-were performed in connection with injuries suffered as a result of the assault. See Plaintiffs Ex. 2; Braunstein Decl. Ex. F (ECF No. 91-2; Nyack Hospital Records) at 27, 28.The medical records also show that Lemus's return to the hospital on July 22, 2014 was a result of continued headache, neck pain, dizziness, and nausea, all of which resulted from the assault. See Braunstein Decl. Ex. F at 3137. Accordingly, I respectfully recommend an award of damages for unpaid medical bills in the total amount of $702.25-this represents 2/3 of the total outstanding balance for the July 21, 2014 hospital visit, plus the entirety of the outstanding balance for the July 22, 2014 visit (($800 x 2/3 = $533.33) + $168.92).
For ease of reference, the Court cites to the page numbers assigned to the hospital records by the Court's Electronic Case Filing system.
2. Pain and Suffering
Plaintiff seeks an award of $142,000 for the injuries he sustained as a result of the assault and battery by Pezzementi. Braunstein Suppl. Decl. ¶ 12.
Lemus's counsel indicated that Lemus is seeking $150,000 for “his injuries and medical expenses”; as discussed in Section II.B.1, the medical expenses portion of this demand is $8,000, leaving a demand of $142,000 for Lemus's injuries.
“An award for pain and suffering includes compensation for physical pain, emotional pain and loss of enjoyment of pleasurable life activities.” Eisenberg v. Gold Flowers Design, Inc., No. 20-cv-2488 (PMH) (PED), 2022 WL 3580885, at *5 (S.D.N.Y. May 9, 2022) (quotation marks omitted). “Pain and suffering damages are designed to restore the aggrieved party to the position [he or] she was in prior to the injury. Factors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury.” Id. (cleaned up). “[C]alculating damages for pain and suffering is an inherently imprecise and difficult undertaking.” Callaghan v. Jacobs, No. 08-cv-03523 (SHS) (DF), 2010 WL 1221800, at *5 (S.D.N.Y. Mar. 5, 2010) (quotation marks omitted), adopted by 2010 WL 1222048 (S.D.N.Y. Mar. 29, 2010); see Norcia v. Dieber's Castle Tavern, Ltd., 980 F.Supp.2d 492, 505 (S.D.N.Y. 2013) (“Plaintiff also seeks compensation for pain and suffering, which ‘does not lend itself to neat mathematical calculation.'”) (quoting Caprara v. Chrysler Corp., 52 N.Y.2d 114, 127 (1981)). “Guidance may be found in prior awards involving similar torts, similar injuries, or both.” Eisenberg, 2022 WL 3580885, at *5 (cleaned up).
In his declaration in support of the damages request, under the heading of “Injury Damages,” Lemus's counsel notes Lemus's physical injuries: “Mr. Lemus suffered a closed head injury with brief loss of consciousness, acute cervical strain, and a lumbar contusion. He reports suffering from headaches and having right sided tingling and numbness.” Braunstein Decl. ¶ 13 & Ex. F at 5 (hospital record from the date of the incident listing Lemus's diagnoses); see Braunstein Suppl. Decl. ¶ 5. Lemus's own declaration included a nearly identical report of his physical injuries. Lemus Decl. ¶ 6 (“I suffered a closed head injury with loss of consciousness, acute cervical strain, and a lumbar contusion. I continue to suffer from headaches and have right sided tingling and numbness.”). Lemus also submitted certified copies of his medical records from Nyack Hospital related to the alleged assault and battery. See Braunstein Decl. Ex. F; ECF No. 112-1 (medical record certification).
The hospital records note that the loss of consciousness was reported by Lemus and lasted “less than 1 hour.” Braunstein Decl. Ex. F at 20, 24; but see Tr. at 15 (Lemus testified that he “fainted for a second or so”). The hospital records also provide information related to the treatment of Lemus's finger lacerations, which he suffered while using a chainsaw at work. See Tr. at 14, 41.
Other than the Nyack Hospital records from the date of the incident (July 21, 2014) and the next day (July 22, 2014), when Lemus presented to the hospital complaining of “continued headache, neck pain, dizziness, and nausea,” as well as pain in the back of his head and his lower back, Braunstein Decl. Ex. F at 32, the only medical records in evidence are from July 29, 2014, when Lemus presented to the hospital again to have the sutures removed from his finger-an injury unrelated to the assault and battery. Id. at 38-42. At that time, Lemus reported making an appointment with Rockland Neurology and taking Tylenol/ibuprofen as needed for intermittent headaches. Id. at 41. But Lemus has not offered in evidence any medical records from either Rockland Neurology or any other medical provider. Rather, it appears that Lemus's injuries did not last long enough to warrant the submission of medical testimony. Indeed, the inquest proceeding was delayed for months to allow for Lemus to submit additional evidence from a treating medical provider, but his counsel ultimately reported to the Court that no such evidence would be forthcoming: “Plaintiff was anticipating providing a medical affirmation/declaration from Mr. Lemus's Clinical Neuropsychologist, but lack of permanency regarding Mr. Lemus's concussion related injuries did not warrant the expense of the affirmation.” Braunstein Decl. ¶ 13 n.1. While Lemus testified that he saw a chiropractor during the approximately two-year period after his employment with Northern Tree ended, see Tr. at 37, no records from this chiropractor were introduced in evidence to corroborate this testimony.
Lemus testified at the inquest hearing that he still suffers from back pain and headaches as a result of the assault. Id. at 30. According to Lemus, his headaches can last for three days “[s]ometimes once a week,” and he takes Tylenol almost every day for his back pain. Id. at 4344. In his testimony, Lemus seemed to ascribe all of these ailments to the events of July 21, 2014-he testified that prior to the assault he “did not suffer from anything,” id. at 43, and “never had any pain,” id. at 44, and that he has not suffered any other head, back, or neck injuries since the July 21, 2014 incident, id. at 30. Lemus also testified that as a result of the assault, he “feel[s] afraid to talk to any boss wherever I work because I'm afraid might happen the same thing to me.” Id.
Any injuries that Lemus suffered, however, did not prevent him from continuing to perform the same physically demanding work that he performed for Defendants. Lemus began working for another company, Timberland, approximately two months after the termination of his employment with Northern Tree, in a job that again involved climbing up trees-the same type of work that he had done for Defendants. Id. at 33-35. After working for Timberland for approximately two years, Lemus began working for a company called Perfect Cut, which is his current employer. Id. at 34, 35, 38. Lemus has been able to perform his job duties while working for Perfect Cut. Id. at 38-39. Moreover, Lemus conceded that his headaches had improved over time, id. at 43, and that he is no longer seeking any treatment for any injuries resulting from the assault, id. at 29.
The Court also reviewed Defendants' post-hearing submission regarding the purported need for expert testimony to establish that Lemus suffered injuries resulting from the assault. As Defendants acknowledge, expert testimony is unnecessary where a finder of fact is “as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004). The facts regarding Lemus's injuries here are not complicated-Lemus explained that prior to the assault, he “did not suffer from anything.” Tr. at 43, and “never had any pain,” id. at 44. After the assault, he experienced head, back, and neck pain for the first time. The Court does not need testimony from an expert witness in order to conclude that there was a causal link between the assault and Lemus's resulting injuries. That said, as the Court has explained, the evidence as to the ongoing and permanent nature of these injuries is far less clear-indeed, as noted, Lemus has continued to perform physically challenging work, is not seeking treatment, and has admitted that his condition improved over time. As to the permanence of his injuries, and the connection between any current symptoms and the July 21, 2014 incident, Lemus has not come forward with sufficient evidence, expert or otherwise, to establish causation.
In the post-hearing submission, Defendants also cited case law regarding the need for expert testimony concerning exacerbation of an injury, see ECF No. 118, but these references are irrelevant, because Lemus does not allege that the assault exacerbated any pre-existing injury.
On balance, I do not credit Lemus's testimony regarding the permanency of his injuries from the assault. There is no medical documentation to support his claim of ongoing injury, and Lemus's counsel conceded in his pre-inquest submissions that there was a lack of permanency to certain of the injuries. Lemus's ongoing physical symptoms can just as easily be attributed to the physical demands of his work and his advancing age-in fact, both of those explanations are more plausible than the assertion that the assault caused injuries that he continues to experience nine years later, but which never rose to the level of requiring any additional documented medical attention or treatment after July 2014. As for potential emotional distress damages, while the Court finds credible the testimony that the assault by Pezzementi caused Lemus to feel apprehensive in interactions with his employers for some period of time, this subject was not explored in depth in Lemus's inquest testimony, and it is difficult to believe that Lemus still has such acute and debilitating concerns in light of the fact that he has been employed by the same company for approximately seven years. Accordingly, I decline to recommend any award for future pain and suffering.
With respect to past pain and suffering, however, “comparable approved awards from similar cases serve as guideposts for determining reasonable compensation under New York law.” Norcia, 980 F.Supp.2d at 505 (cleaned up). Here, the cases cited by Lemus, see Braunstein Suppl. Decl. ¶¶ 7-11, are all distinguishable, and involve more serious injuries than those sustained by Lemus as a result of the assault.
In Leszczynski v. Town of Neversink, 107 A.D.3d 1183 (N.Y.App.Div. 2013) (3d Dep't), a jury awarded the plaintiff $25,000 for past pain and suffering where a piece of stone weighing 40 to 80 pounds fell on the plaintiff's head, which resulted in, among other things, a concussion and herniated disc for which the plaintiff ultimately underwent surgery. Lemus acknowledges that his own back injury was less severe than Leszczynski's, and while Lemus experienced a “closed head injury” with some degree of ongoing headaches, there is no basis in the record to conclude that this injury was any more severe than the concussion sustained by the plaintiff in Leszczynski.
In Jackson v. Mungo One, Inc., 6 A.D.3d 236 (N.Y.App.Div. 2004) (1st Dep't), a case involving an automobile accident, the plaintiff was awarded $412,000 for past pain and suffering when her seven-year-old infant suffered “a concussion, post-concussion syndrome, posttraumatic stress disorder, and cognitive deficits.” There is simply no evidence in the medical records provided to the Court to support Lemus's contention that he “suffered the same injuries, with the exception of posttraumatic stress disorder-which was mirrored by diagnoses of anxiety and post-accident anxiety.” Braunstein Suppl. Decl. ¶ 8. Lemus has provided no evidence beyond his own testimony that he experienced any ongoing injury as a result of his “closed head injury,” as noted above; no evidence of diagnoses of anxiety and post-accident anxiety; and no evidence that he suffered injuries equivalent in severity to the injuries suffered by the infant in Jackson.
Lemus also cites the following cases:
* Zilahy v. Andre, 2015 WL 5915304 (N.Y. Sup. Ct. (Ulster Cnty.) Apr. 7, 2015), a case involving a motor vehicle collision, in which a jury awarded $50,000 for pain and suffering (the Court cannot discern how the award was apportioned between past and future pain and suffering) to a plaintiff who “reportedly suffered permanent injuries; postconcussion syndrome; a fractured right 5th finger; cervical radiculopathy; cervical, thoracic, and lumbar strains with muscle spasms[;] bilateral shoulder sprains[]; [and] a left knee contusion”;
* Coughlin v. Vardakis, 2015 WL 5139180 (N.Y. Sup. Ct. (Ulster Cnty.) Mar. 20, 2015), a case involving a rear-end collision with a bus on which the plaintiff was a passenger, where a jury awarded $125,000 for pain and suffering (again, the Court cannot discern how the award was apportioned between past and future pain and suffering) to the plaintiff who “claimed he suffered a cerebral concussion, C3-C4 disc bulging, aggravation of pre-existing cervical spondylosis at ¶ 6-C7, and cervical and thoracic strains”; and
* Rodman v. Deangeles, 2015 WL 10912046 (N.Y. Sup. Ct. (Cortland Cnty.) July 9, 2015), a case in which the plaintiff was struck by a vehicle and thrown 15 feet, where a jury awarded $265,000 for pain and suffering (once again, the Court cannot discern how the award was apportioned between past and future pain and suffering) to the plaintiff who “claimed he suffered a concussion with post-concussive disorder with sequelae including headaches, tinnitus, visual disturbances, attention and memory deficits, disc space narrowing at ¶ 4-T1, anterior subluxation at ¶ 4-C5, a hematoma to the left posterior scalp, and lacerations and bruising to his hips, legs, shoulders and arms.”
See Braunstein Suppl. Decl. ¶¶ 9-11. Lemus provides no explanation, however, of how any of these cases support his claim for $142,000 in damages for pain and suffering, or why he deems these cases to be at all comparable to his own. Rather, the Court finds that the injuries in all of the cases cited by Lemus are more severe than those he suffered.
In the most comparable case cited by Lemus, Leszczynski v. Town of Neversink, supra, the plaintiff was awarded $25,000 for past pain and suffering. Taking into account the passage of time since June 2013, the month and year in which Leszczynski was decided, it is appropriate to adjust that award for inflation. See Byrne v. Yeats Constr. Mgmt., Inc., No. 12-cv-5355 (AEK), 2022 WL 2532445, at *9 (S.D.N.Y. Jan. 19, 2022), adopted by 2022 WL 6698245 (S.D.N.Y. Oct. 11, 2022). According to the U.S. Department of Labor's Bureau of Labor Statistics Consumer Price Index Inflation Calculator (http://www.bls.gov/data/ inflationcalculator.htm (last visited 6/15/2023)), $25,000 in June 2013 dollars is the equivalent of approximately $32,561 in May 2023 dollars, the latest month for which such data is available. But the plaintiff in Leszczynski, unlike Lemus, had to undergo surgery, reflecting a much more severe level of physical injury. That said, there is no indication in Leszczynski of any element of damages for emotional distress, and some degree of emotional distress damage is warranted here based on Lemus's testimony about how the assault impacted his relationships with employers, at least for a period of time. Accordingly, I respectfully recommend that Lemus be awarded $20,000 in damages for past pain and suffering on his claim for assault and battery-$15,000 attributable to physical injuries, and $5,000 for emotional distress.
3. Pre-Judgment Interest
In the context of a damages inquest after default on a claim for personal injury, prejudgment interest should be measured from the date on which the Report and Recommendation is issued to the entry of judgment. See Ventarola v. Narvaez, No. 18-cv-3231 (PMH) (BCM), 2021 WL 1536540, at *13-14 (S.D.N.Y. Feb. 16, 2021) (“[W]hile [the plaintiff] is not entitled to pre-judgment interest from the date of the accident, he is entitled to pre-judgment interest from the date of this Report to the entry of judgment.”), adopted by 2021 WL 839454 (S.D.N.Y. Mar. 5, 2021). Under New York law, pre-judgment interest is calculated at the rate of 9 percent per annum, N.Y. C.P.L.R. § 5004, and “is computed ‘on a simple interest basis.'” Id. at *14 (quoting Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998)). Accordingly, I respectfully recommend that Lemus be awarded pre-judgment interest at the rate of 9 percent per annum on the $20,000 damages award for past pain and suffering from the date of this Report and Recommendation until the entry of judgment.
I do not recommend any award of pre-judgment interest for Lemus's medical expenses. The purpose of pre-judgment interest is, in part, to help make a plaintiff whole for the period of time between when his injuries occurred and when he receives payment from a defendant for those injuries. With respect to the medical expenses at issue here, there is no need to award interest to make Lemus whole, because he was never required to pay the outstanding balances- in other words, Lemus was never actually deprived of any money for any period of time as a result of these invoices. Moreover, there is no evidence in the record to suggest that interest has been accruing on Lemus's outstanding obligations. The pre-judgment interest analysis for medical expenses may have been different if, for example, Lemus had been required to pay out of pocket for any expenses associated with injuries from the assault.
C. Costs
Lemus's initial inquest submission sought attorneys' fees and expenses, Braunstein Decl. ¶¶ 21-22, but the Court found the request for attorneys' fees and expenses to be deficient, and ordered that to properly support Lemus's claim for an award of attorneys' fees and costs, his counsel had to “submit (1) a proper attorneys' fee application sufficient to support a lodestar calculation, including contemporaneous time records and documentation regarding counsel's level of experience and hourly rates; and (2) documentary support for the claimed expenses for service of process, mileage, and a deposition transcript.” ECF No. 105 at 2. In his supplemental inquest submission, Lemus abandons the request for attorneys' fees because his counsel “did not take [ sic ] contemporaneous time records and therefore cannot make a lodestar application.” Braunstein Suppl. Decl. ¶ 17. Regarding expenses or costs, Lemus's counsel provides the same list-$400 for the court filing fee; $100 for service of process; $146.69 for the mileage and tolls related to court appearances; and $453.36 for a deposition transcript, for a total of $1,100.05 in costs. Id.
Costs are “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) (quotation marks omitted). “The requesting party must substantiate the request for costs.” Cortes v. New Creators, Inc., No. 15-cv-5680 (PAE), 2016 WL 3455383, at *6 (S.D.N.Y. June 20, 2016). “Court fees reflected on the Court's docket are sufficiently substantiated, as are costs for which a claimant provides extrinsic proof, such as invoices or receipts.” Id. “A sworn statement or declaration under penalty of perjury that certain amounts were expended on particular items is also sufficient.” Id. The $400 filing fee is substantiated by the docket in this case, and Lemus's counsel's sworn declaration serves to substantiate the remaining costs. Accordingly, I respectfully recommend that Lemus be awarded $1,100.05 in costs.
D. Punitive Damages
In his supplemental inquest submission, Lemus requests for the first time an award of punitive damages-specifically, a trebling of all the damages and costs that Lemus seeks. Braunstein Suppl. Decl. ¶¶ 19-21.
To the extent that Lemus seeks punitive damages on his claims under the FLSA and/or the NYLL, the Court already has recommended an award of liquidated damages on his NYLL claim for overtime compensation, as requested in the Complaint. As explained above, no liquidated damages were requested on the claim for unpaid wages. Lemus provides no legal support for an additional award of punitive damages in connection with his wage claims, nor does he provide any legal support for trebling the award of costs. The Court declines to recommend an award of any further punitive damages for Lemus's NYLL claims, and also declines to recommend an award of punitive damages based on the fact that Lemus incurred costs to pursue his claims in this matter.
With respect to the assault and battery claim, “[p]unitive damages are recoverable in actions based on tortious conduct under New York law, where such conduct involves malice, oppression, wanton or reckless disregard of the plaintiff's rights or other circumstances of aggravation.” Jordonne v. Ole Bar & Grill, Inc., No. 13-cv-1573 (VB) (JCM), 2016 WL 3409088, at *11 (S.D.N.Y. Apr. 26, 2016) (quotation marks omitted), adopted by 2016 WL 3360524 (S.D.N.Y. June 16, 2016); see Pepe v. Maklansky, 67 F.Supp.2d 186, 187-88 (S.D.N.Y. 1999) (“The Second Circuit has stated that, it is generally recognized that, in cases of personal torts, vindictive actions, such as assault and battery where the elements of fraud, malice, gross negligence, cruelty, or oppression are involved, punitive or exemplary damages may be recovered.”) (cleaned up).
Lemus has presented sufficient evidence that Pezzementi acted with malice and cruelty and in reckless disregard of Lemus's rights. At the hearing, Lemus testified that after he cut his fingers, he told Mrs. Pezzementi, who called her husband. Tr. at 14. Lemus stated that Pezzementi arrived about ten minutes later, id., at which time, Pezzementi
. . . started insulting me. He continued insulting me, and then I told him what had just happened. Okay. While he was doing that, I just turned around, and I started to move away from the car where he was staying. He got off the car, and he hit me in the back of my head and my back. I was thrown on the floor. I fainted for a second or so, and he started kicking my back.
He told me I could not do anything because he had many friends in the police. After that, the owner of the house called an ambulance and called the police, and I was taken to the hospital.
Id. at 15. No witness came forward at the inquest hearing to refute Lemus's characterization of events, or to give any sort of alternative explanation of Pezzementi's conduct. While Mrs. Pezzementi stated in her original declaration that Pezzementi's conduct was in response to “Lemus's threats and hostile acts against Todd and me that day,” Shawn Pezzementi Decl. ¶ 7 (also attaching various hearsay records regarding the Pezzementis' version of the incident), it is again telling that neither of the Pezzementis was ever willing to provide testimony under oath in this case, including at the inquest hearing, when the opportunity to do so was readily available. Meanwhile, Lemus's testimony regarding the July 21, 2014 incident was credible. That testimony establishes that Pezzementi attacked Lemus for no discernible reason while Lemus was attempting to walk away from their conflict, and further exacerbated the situation by attempting to intimidate and threaten Lemus in order to convince him not to report the attack to law enforcement authorities. Based on the record before the Court, Pezzementi's unprovoked behavior toward Lemus on July 21, 2014 was malicious, cruel, and reckless, and accordingly, an award of punitive damages is warranted.
The Court notes that Mrs. Pezzementi attached to her declaration copies of police incident reports and witness statements. These records were not received in evidence as part of the inquest hearing because they are hearsay documents. While certain hearsay exceptions may have been applicable had counsel taken additional steps to authenticate the documents, those steps were not taken here. The Court notes, however, that the statements attributed to Lemus in the contemporaneous report of the incident are consistent with his testimony at the inquest hearing.
In his closing argument at the inquest hearing, Lemus's counsel referred to an unrelated incident in which Pezzementi allegedly was arrested and convicted for brandishing a firearm during a confrontation with a driver on a local highway. See Tr. at 55. No admissible evidence was received as to this other incident, and as such, the Court has not considered this in evaluating whether punitive damages are warranted for Pezzementi's conduct on July 21, 2014.
“Awards of punitive damages are by nature speculative, arbitrary approximations. No objective standard exists that justifies the award of one amount, as opposed to another, to punish a tortfeasor appropriately for his misconduct. Nor is there any formula to determine the dollar amount needed to effectuate deterrence.” Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013). “Although the factfinder has discretion to determine whether to award punitive damages and, if so, in what amount, punitive damages must bear some reasonable relation to the harm done and the flagrancy of the conduct causing it.” Wright, 2017 WL 253486, at *13 (cleaned up). “There is no ‘simple mathematical formula' to determine the amount of a punitive damages award.” Francis v. City of New York, No. 15-cv-7997 (VSB) (KHP), 2019 WL 8918743, at *9 (S.D.N.Y. Nov. 12, 2019) (citing BMW of N. Am. v. Gore, 517 U.S. 559, 582 (1996)), adopted by 2020 WL 2792995 (S.D.N.Y. May 29, 2020). “Any punitive damages award must be reasonable and rational in light of its purpose to comport with due process.” Id. “In the context of evaluating whether a jury award of punitive damages is excessive, the Supreme Court has set forth three guideposts to be considered: 1) the degree of reprehensibility of the defendant's conduct, 2) the disparity between the punitive damages award and the harm caused to the plaintiff, and 3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.” Id. (quotation marks omitted). “Whether these same considerations apply in the context of a post-default damages inquest is not settled in this District.” Id. (collecting cases). Some cases have “reconciled the different approaches”
by determining that the assessment of punitive damages at inquest should begin with an understanding of the range of damages awarded in comparable cases after trial (and after any remittiturs), as well as an analysis of any features that distinguish the case at bar. The Gore factors can then be utilized, if necessary, to ensure that the proposed award is not grossly excessive.Id. (quoting Poulos v. City of New York, No. 14-cv-03023 (LTS) (BCM), 2018 WL 3750508, at *6 (S.D.N.Y. July 13, 2018), adopted by 2018 WL 3745661 (S.D.N.Y. Aug. 6, 2018)). This Court agrees with this approach.
Lemus has not provided the Court with citations to, or discussion of, any cases that would allow the Court to evaluate the range of punitive damages that are potentially recoverable in this case. The Court nevertheless has located cases in which punitive damages have been considered and/or awarded on claims for assault and battery or excessive use of force by law enforcement officers. Punitive damages awards in those cases have ranged from zero to $16,000. See O 'Hara v. City of New York, 570 Fed.Appx. 21, 23, 24 (2d Cir. 2014) (summary order) (jury declined to award punitive damages where defendant police officer punched 17-year-old plaintiff in the face “without provocation, and then proceeded to punch him repeatedly after [he] fell to the ground”); Byrnes v. Angevine, No. 12-cv-1598 (GLS) (DEP), 2015 WL 3795807, at *1, 3-4 (N.D.N.Y. June 17, 2015) (awarding $15,000 in punitive damages against defaulting defendant where defendant corrections officer forcibly removed plaintiff's jacket, placed him in a chokehold, and forced him to the ground, after which defendant kicked plaintiff twice while plaintiff was subdued by other officers); Medina v. Donaldson, No. 10-cv-5922 (VMS), 2014 WL 1010951 (E.D.N.Y. Mar. 14, 2014) (affirming jury award of $16,000 in punitive damages where, after plaintiff was handcuffed and placed in a police car, defendant police officer punched plaintiff in his eye, causing, among other things, a black eye and laceration to plaintiff's eyelid). Lemus effectively is seeking a punitive damages award of $60,000 for his assault and battery claim-i.e., a trebling of his compensatory damages for his injuries. While Pezzementi's conduct on July 21, 2014 was highly inappropriate and reckless, Lemus's requested damages award would be excessive. Without minimizing the severity of Pezzementi's actions or the effects they had on Lemus, it is important to recognize that the encounter was brief, and that the physical and emotional damage inflicted on Lemus was relatively modest-comparable, in many respects, to the damages sustained by the plaintiffs in the aforementioned cases. Yet part of what made Pezzementi's conduct cruel and malicious was his abuse of his position of power as Lemus's employer; particularly inasmuch as Pezzementi continues to be an employer, a punitive damages award here can and should also serve a deterrent function to help prevent any recurrence of this type of treatment of Pezzementi's employees. In light of the Court's review of awards in these comparable cases, and taking into consideration the evidence of the injuries that Lemus suffered as a result of the assault by Pezzementi, See Section II.B.2, supra, an award of punitive damages within the range of awards in these other matters is appropriate. Accordingly, I respectfully recommend that Lemus be awarded $10,000 in punitive damages on his assault and battery claim.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Lemus be awarded (1) overtime wages in the amount of $12,000; (2) unpaid wages in the amount of $229.25; (3) liquidated damages in the amount of $12,000; (4) pre-judgment interest on the total award of NYLL damages (i.e., items (1) and (2)) of $12,229.25 from December 9, 2013 until the date of entry of judgment at the rate of 9 percent per annum; (5) damages for medical expenses in the amount of $702.25; (6) damages for past pain and suffering in the amount of $20,000; (7) pre-judgment interest on the award of damages for past pain and suffering from the date of this Report and Recommendation until the date of entry of judgment at the rate of 9 percent per annum; (8) $1,100.05 in costs; (9) punitive damages in the amount of $10,000; and (10) post-judgment interest in accordance with 28 U.S.C. § 1961.
Under federal law, “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a). The Second Circuit has held that an award of post-judgment interest is “mandatory” and should be awarded at the statutory rate prescribed by section 1961. Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008) (citing Westinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir. 2004)).