Opinion
18 Civ. 1062 (PGG) (GWG)
09-15-2021
SUNIL TORAMALL, et al., Plaintiffs, v. MANHATTAN CONSTRUCTION GROUP LLC, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiffs Sunil Toramall, Dante Decapua, Samuel Decapua, Anthony Morrow, Ryan Costa, Jose Mota, Phillip Frieson, and Annamarie Beaulieu, as administrator of the Estate of Brian Beaulieu, are the plaintiffs in this action against Manhattan Construction Group LLC ("MCG"), LV Construction Services LLC (the "corporate defendants"), and Dewey Fattorusso. Plaintiffs seek unpaid wages under the New York Labor Law §§ 190 et seq. ("NYLL") and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"). A default was previously entered against the corporate defendants, and plaintiffs have now moved for summary judgment against the only remaining defendant, Fattorusso.Fattorusso has not filed any opposition to plaintiffs' motion.
Motion for Summary Judgment, filed February 12, 2021 (Docket # 76) ("SJ Mot."); Memorandum of Law in Support, filed February 12, 2021 (Docket # 77) ("PI. Mem."); Declaration of Charles Gershbaum in Support, filed February 12, 2021 (Docket # 78); Declaration of Sunil Toramall in Support of Inquest, filed February 12, 2021 (Docket # 78-2) ("Toramall Inquest Decl."); Declaration of Dante Decapua in Support of Inquest, filed February 12, 2021 (Docket # 78-3) ("D. Decapua Inquest Decl."); Declaration of Samuel Decapua in Support of Inquest, filed February 12, 2021 (Docket # 78-4) ("S. Decapua Inquest Decl."); Declaration of Anthony Morrow in Support of Inquest, filed February 12, 2021 (Docket # 78-5) ("Morrow Inquest Decl."); Declaration of Ryan Costa in Support of Inquest, filed February 12, 2021 (Docket # 78-6) ("Costa Inquest Decl."); Declaration of Phillip Frieson in Support of Inquest, filed February 12, 2021 (Docket # 78-7) ("Frieson Inquest Decl."); Declaration of Jose Mota in Support of Inquest, filed February 12, 2021 (Docket # 78-8) ("Mota Inquest Decl."); Declaration of Anthony Morrow in Support, filed February 12, 2021 (Docket # 78-9) ("Morrow Decl."); Declaration of Dante Decapua in Support, filed February 12, 2021 (Docket # 78-10) ("D. Decapua Decl."); Declaration of Ryan Costa in Support, filed February 12, 2021 (Docket # 78-11) ("Costa Decl."); Declaration of Samuel Decapua in Support, filed February 12, 2021 (Docket # 78-12) ("S. Decapua Decl."); Declaration of Sunil Toramall in Support, filed February 12, 2021 (Docket # 78-13) ("Toramall Decl."); Declaration of Annamarie Beaulieu in Support of Inquest, filed February 12, 2021 (Docket # 78-14) ("Beaulieu Inquest Decl."); Plaintiffs' Rule 56.1 Statement in Support, filed February 12, 2021 (Docket # 78-15) ("PI. Rule 56.1").
For the reasons discussed next, plaintiffs' motion should be granted to the extent set forth below.
I. BACKGROUND
A. Facts
In light of Fattorusso's failure to controvert any of the facts attested to by plaintiffs, we accept the plaintiffs' sworn facts as true.
Fattorusso "is the sole owner of [defendants] Manhattan Construction Group LLC and LV Construction Services LLC." Morrow Decl. ¶ 3; see also D. Decapua Decl. ¶ 3; Costa Decl. ¶ 3; S. Decapua Decl. ¶ 3; Toramall Decl. ¶ 3. Plaintiffs were employed by defendants, including Fattorusso, as construction workers in New York. See Toramall Inquest Decl. ¶ 2; D. Decapua Inquest Decl. ¶ 2; S. Decapua Inquest Decl. ¶ 2; Morrow Inquest Decl. ¶ 2; Costa Inquest Decl. ¶ 2; Frieson Inquest Decl. ¶ 2; Mota Inquest Decl. ¶ 2; Beaulieu Inquest Decl. ¶ 2.
Toramall was employed by Fattorusso "from approximately June 2013 to September 2015." Toramall Inquest Decl. ¶ 2. Toramall "worked on average . . . between 10-20 hours of overtime a week," sometimes working as much as "60 or more hours a week." Id. ¶ 3. Toramall does not "have the exact amount" of hours he worked each week because Fattorusso failed to "keep an accurate account of [his] hours." Id. Toramall "was paid an average of approximately $27.00 an hour," id, and "was paid only a flat hourly salary," id ¶ 4. He did not "receive any overtime pay." Id.
Dante Decapua was employed by Fattorusso "from approximately September 2009 to September 2015." D. Decapua Inquest Decl. ¶ 2. Decapua "worked on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. However, Decapua does not "have the exact amount" of hours he worked each week because Fattorusso failed to "keep an accurate account of the hours . . . [he] worked." Id. Decapua "was paid an average of approximately $18.00 an hour," id, but "was paid only a flat hourly salary," id ¶ 4. Decapua was therefore never paid "for any hour over the 40 hours that [he] worked." Id.
Samuel Decapua was employed by Fattorusso "from approximately March 2011 to July 2015." S. Decapua Inquest Decl. ¶ 2. Decapua worked "on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. However, because of Fattorusso's failure to "keep an accurate account of the hours" Decapua worked, he does not "have the exact amount" of hours he worked each week. Id. Decapua was "paid an average of approximately $23.50 an hour," id, but was not paid any overtime, Id. ¶4.
Morrow was employed by Fattorusso "from approximately April 1, 2014 to June 2015." Morrow Inquest Decl. ¶ 2. Morrow worked "on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. Morrow does not know "the exact amount" of hours he worked each week because Fattorusso failed to "keep an accurate account" of his hours. Id. Morrow was "paid an average of approximately $15.00 an hour," id, but did not "receive any overtime pay," Id. ¶4.
Costa was employed by Fattorusso "from approximately March, 2012 to April 2015." Costa Inquest Decl. ¶ 2. Costa "worked on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. Costa does not know "the exact amount" of hours he worked each week because Fattorusso failed to "keep an accurate account" of his hours. Id. Costa was "paid an average of approximately $19.50 an hour," id, but did not "receive any overtime pay," Id. ¶4.
Frieson was employed by Fattorusso "from approximately March 2014 to March 2015." Frieson Inquest Decl. ¶ 2. Frieson "worked on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. However, Frieson does not know "the exact amount" of hours he worked each week because Fattorusso failed to "keep an accurate account" of his hours. Id. Frieson was "paid an average of approximately $12.50 an hour," id, but did not "receive any overtime pay," Id. ¶4.
Mota was employed by Fattorusso "from approximately July, 2012 to July 2015." Mota Inquest Decl. ¶ 2. Mota "worked on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. Frieson does not know "the exact amount" of hours he worked each week because Fattorusso failed to "keep an accurate account" of his hours. Id. Frieson was "paid an average of approximately $12.50 an hour," id, but did not "receive any overtime pay," Id. ¶4.
Brian Beaulieu was employed by Fattorusso "from approximately February 2014 to July 2015." Beaulieu Inquest Decl. ¶ 2. Beaulieu "worked on average . . . between 10-20 hours of overtime a week," sometimes working "60 or more hours a week." Id. ¶ 3. However, "the exact amount" of hours Beaulieu worked each week is unknown as Fattorusso failed to "keep an accurate account of the hours that he worked." Id. Beaulieu was "paid an average of approximately $21.00 an hour," id, but did not "receive any overtime pay," Id. ¶4.
Plaintiff Brian Beaulieu died after the complaint was filed. See PI. Mem. at 3 n.3. Annamarie Beaulieu is the "Administrator of the estate of Brian Beaulieu," and submitted a "declaration as a person with personal knowledge of the activities of Brian Beaulieu as [she] resided with him as husband and wife and was fully aware of his job and time that he spent on the job for Defendants." Beaulieu Inquest Decl. ¶ 1. Because the declaration is based on Annamarie Beaulieu's personal knowledge, we find it admissible to support Brian Beaulieu's claims. See Fed.R.Evid. 602.
B. Procedural Background
Plaintiffs filed the complaint in this action on March 12, 2018. (Docket # 7) ("Comp."). Defendants answered on May 9, 2018. (See Docket ##16-18). On January 9, 2019, defendants' attorney filed a motion to withdraw (Docket # 28), which the Court granted on January 24, 2019 (Docket # 34). The Court instructed that Fattorusso was now proceeding pro se and that if no attorney had "filed a notice of appearance on behalf of the corporate defendants by March 11, 2019, plaintiffs may seek a judgment by default." Id. at 1. Fattorusso requested an extension of time to find an attorney, specifically for MCG (Docket # 36), which the Court granted (Docket # 38). However, no attorney ever filed a notice of appearance on behalf of Fattorusso or the corporate defendants.
Although plaintiffs originally filed their complaint on February 6, 2018, there was a filing error. (See Docket # 1). Plaintiffs refiled their complaint on the March 12, 2018. See Comp. Because plaintiffs use March 12, 2018, as the date for the filing of the complaint for purposes of calculating damages, see D. Decapua Inquest Decl. ¶ 4, we will do so as well.
An order of default was entered against the corporate defendants on August 19, 2019 (Docket # 51), and default judgment was entered on November 4, 2020 (Docket # 67). Plaintiffs thereafter brought this motion for summary judgment against Fattorusso, the only remaining defendant, on February 12, 2021, see PI. Mot.
II. GOVERNING LAW
Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed" and the court must draw "all justifiable inferences" in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Morales v. Quintet Ent, Inc., 249 F.3d 115, 121 (2d Cir. 2001) ("[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.").
Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial, '" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (quoting Fed.R.Civ.P. 56(e)), and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words, the nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (punctuation omitted). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
While Fattorusso has failed to oppose plaintiffs' motion for summary judgement, "[a] non-response does not risk a default judgment." Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014). "Before summary judgment may be entered, the district court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed." Id.
III. DISCUSSION
Plaintiffs seek an order finding that:
(1) Defendant violated the Fair Labor Standards Act. . . and New York Labor Law ... by, illegally paying Plaintiffs their regular hourly rate rather than a rate of time -and -one-half their regular rate of pay;
(2) Declaring that Fattorusso was an employer as defined by the FLSA and NYLL;
(3) Awarding Plaintiffs, the difference between their regular and the legally required overtime rate as required by the NYLL and FLSA for all overtime hours worked by Plaintiffs;
(4) Awarding Plaintiffs liquidated damages under the FLSA and NYLL;
(5) Ordering Defendants to pay penalties to Plaintiffs pursuant to section NYLL 198§(1)(d) [sic] and NYLL 195§ (3) [sic] by failing to provide wage statements; and
(6) For such other and further relief as this court may deem just and necessary.PI. Mem. at 2.
Because the NYLL provides all the relief plaintiffs may obtain on their motion, we do not discuss plaintiffs' FLSA claim, see Comp. ¶¶ 91-97.
If the Court were to reach the issue of whether summary judgment should be entered for plaintiffs on their FLSA claim, it would be denied. "To recover minimum and overtime wages under the FLSA, Plaintiffs must either qualify as employees engaged in commerce or in the production of goods for commerce ('individual coverage'), or their employer must have engaged in commerce or in the production of goods for commerce during their employment ('enterprise coverage')." Lopez v. MNAF Pizzeria, Inc., 2021 WL 1164336, at *5 (S.D.N.Y. Mar. 25, 2021) (citing 29 U.S.C. §§ 206, 207). Plaintiffs fail to address this requirement and submit no evidence from which the Court could find plaintiffs are covered by the FLSA.
A. Whether Fattorusso is an Employer under the NYLL
Under the NYLL, as well as the FLSA, "a person cannot be held liable unless he meets the statutory definition of'employer.'" Nana v. Le Viking LLC, 2018 WL 1413264, at *4 (S.D.N.Y. Mar. 2, 2018). NYLL defines an "employer" as "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service." N.Y. Lab. Law § 190(3). "Analysis of wage-and-hour coverage under the NYLL substantively mirrors that under the FSLA, although the NYLL does not require that the employer's business had a minimum amount of sales nor a nexus to interstate commerce." Solano v. Andiamo Cafe Corp., 2020 WL 6746052, at *4 (S.D.N.Y.Nov. 17, 2020). In light of the similarity of the statutes, we will cite cases construing the FLSA in our analysis of whether Fattorusso qualifies as an employer under the NYLL. See Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 335 n.13 (S.D.N.Y.2010) ("[C]ourts have interpreted the definition of 'employer' under the New York Labor Law coextensively with the definition used by the FLSA.") (citation omitted); Ansoumanav. Gristede's Operating Corp., 255 F.Supp.2d 184, 189 (S.D.N.Y. 2003) ("Because New York Labor Law and the FLSA embody similar standards . . . [the court] will consider the federal law in deciding whether defendants were joint employers.") (citing cases); accord Fernandez v. HR Parking Inc., 407 F.Supp.3d 445, 452 (S.D.N.Y.2019); see also Garcia v. La Revise Assocs. LLC, 2011 WL 135009, at *5 (S.D.N.Y. Jan. 13, 2011) ("New York's 'employer' provisions are equally [as] broad [as the FLSA's]." (citing Spicer, 269 F.R.D. at 335 n.13))
The Second Circuit has explained that an employment relationship exists when the "economic reality" is such that the "alleged employer possessed the power to control the workers in question." Herman v. RSR Sec. Servs. Ltd., 172F.3d 132, 139(2dCir. 1999). To determine whether an individual had formal control over workers, the Second Circuit has instructed district courts to consider "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." Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (punctuation omitted). Nonetheless, there is "no rigid rule for the identification of an FLSA employer." Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 143 (2d Cir. 2008). Instead, the Second Circuit has explained that employment is "a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances." Id. at 141-42.
The Second Circuit has also identified other tests for identifying an employer - for example by examining "functional control" where there is no "formal control," Zheng v. Liberty Apparel Co. Inc., 355F.3d61, 72 (2d Cir. 2003). These tests are normally used to distinguish between independent contractors and employees, or to assess subcontractor relationships, see Fernandez., 407 F.Supp.3d at 451, and thus do not apply here.
Five of the plaintiffs "observed . . . Fattorusso hire and fire[] employees," that he "set employee rates of pay, work schedules, dictated work assignments and supervised the work performed," that he "referred to himself as the boss," and that plaintiffs made "all requests for expense reimbursement, vacation and any other questions related to . . . employment to . . . Fattorusso who had the final say on issuing and approving and administering all such functions." Morrow Decl. ¶¶ 4-5; see also D. Decapua Decl. ¶¶ 4-5; Costa Decl. ¶¶ 4-5; S. Decapua Decl. ¶¶ 4-5; Toramall Decl. ¶¶ 4-5. Three of the four Carter factors therefore weigh in favor of finding Fattorusso qualifies as an employer under the FLSA. See 735 F.2d at 12. And the fourth factor - "whether the alleged employer . . . maintained employment records," ii (punctuation omitted) - is neutral inasmuch as there is no evidence that any other person or entity kept such records.
Given the lack of any evidence in the record to contradict plaintiffs' declarations, we find plaintiffs have established that Fattorusso is an employer under the NYLL. See Solano, 2020 WL 6746052, at *3 (finding the individual defendants were employers where it was "undisputed that the individual defendants owned the business and exercised the authority to hire and fire, set wages and schedules, and direct the plaintiffs in their work," and, "[although the defendants did not keep any employment records concerning the plaintiffs, they had the power to do so").
B. Whether Fattorusso Failed to Pay Plaintiffs Overtime
New York law requires an employer to pay "an employee for overtime at a wage rate of one and one-half times the employee's regular rate" for any hours worked in excess of 40 in one workweek. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2.
Plaintiffs have submitted sworn declarations stating they regularly worked overtime while employed by Fattorusso and were never compensated for this overtime. See Toramall Inquest Decl. ¶¶ 3-4; D. Decapua Inquest Decl. ¶¶ 3-4; S. Decapua Inquest Decl. ¶¶ 3-4; Morrow Inquest Decl. ¶¶ 3-4; Costa Inquest Decl. ¶¶ 3-4; Frieson Inquest Decl. ¶¶ 3-4; Mota Inquest Decl. ¶ 3-4; Beaulieu Inquest Decl. ¶¶ 3-4. As there is no evidence in the record to the contrary, plaintiffs should be granted summary judgment regarding Fattorusso's liability for their NYLL unpaid overtime claim. See Solano, 2020 WL 6746052, at *5 (finding plaintiffs had established their overtime claims "based upon the evidence in the plaintiffs' unopposed declarations and" their "detailed charts summarizing the amount of overtime premium pay each was owed based upon the facts provided in their declarations"); Escobar v. Del Monaco Bros. Indus. Inc., 2016 WL 11481190, at *6-7 (E.D.N.Y.July 27, 2016) (relying on plaintiffs recollection of the hours he worked in finding he "was not paid overtime for hours worked in excess of forty each week"), adopted by, 2016 WL 4275705 (E.D.N.Y.Aug. 13, 2016).
C. Failure to Provide Wage Statements under the NYLL
Since April 9, 2011, the NYLL has required employers to "furnish each employee with a statement with every payment of wages," which must include, inter alia, the rate of payment, the gross wages provided, and the applicable overtime rate. N.Y. Lab. Law § 195(3).
Plaintiffs claim Fattorusso "failed to provide pay stubs," and therefore "Plaintiffs are entitled to recover the statutory damages under NYLL § 198(l-d)." PI. Mem. at 13. However, plaintiffs fail to submit any evidence to support their claim. In fact, each plaintiff claims only that Fattorusso did not keep "an accurate account of the hours" they worked. Toramall Inquest Decl. ¶ 3; D. Decapua Inquest Decl. ¶ 3; S. Decapua Inquest Decl. ¶ 3; Morrow Inquest Decl. ¶ 3; Costa Inquest Decl. ¶ 3; Frieson Inquest Decl. ¶ 3; Mota Inquest Decl. ¶ 3; Beaulieu Decl. ¶ 3. Such a statement does not allow the Court to find Fattorusso did not provide wage statements as required by NYLL.
Inasmuch as plaintiffs have failed to submit any evidence establishing Fattorusso did not provide them with wage statements, summary judgment should be denied.
IV. DAMAGES
A. Unpaid Overtime
Because plaintiffs have established that Fattorusso violated the NYLL by failing to pay them for any overtime hours worked, plaintiffs should be awarded damages on this claim. Plaintiffs request "the difference between their regular and the legally required overtime rate as required by the NYLL and FLSA for all overtime hours worked." PI. Mem. at 2. Plaintiffs have submitted sworn declarations stating the average amount of overtime hours they worked per week, their average wage per hour and the number of weeks they worked for Fattorusso. See Toramall Inquest Decl. ¶¶ 3-4; D. Decapua Inquest Decl. ¶¶ 3-4; S. Decapua Inquest Decl. ¶¶ 3-4; Morrow Inquest Decl. ¶¶ 3-4; Costa Inquest Decl. ¶¶ 3-4; Frieson Inquest Decl. ¶¶ 3-4; Mota Inquest Decl. ¶¶ 3-4; Beaulieu Inquest Decl. ¶¶ 3-4. We accept plaintiffs' average amount of overtime hours worked and their average hourly rate as sufficient evidence to establish their damages given the lack of employer records. See Cabrera v. Canela, 412 F.Supp.3d 167, 183 (E.D.N.Y.2019) (accepting "plaintiffs testimony" that "he worked an average of fifteen overtime hours per week" to calculate overtime damages). As plaintiffs were paid an hourly rate, and there is no claim this hourly rate was below the minimum wage for any of the plaintiffs, each plaintiff is entitled to one half this rate for the overtime hours they worked. See N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2.
Toramall was paid an average of $27.00 an hour and worked an average of 15 hours of overtime a week. Toramall Inquest Decl. ¶ 3. Toramall worked for Fattorusso for 117.43 weeks but did not "receive any overtime pay." Id. ¶ 4. Toramall is therefore owed $23,779.58 in unpaid overtime (((27.00 * 0.5) * 15) * 117.43).
Dante Decapua was paid an average of $18.00 an hour and worked an average of 15 hours of overtime a week. D. Decapua Inquest Decl. ¶ 3. Decapua worked for Fattorusso for "181.14 weeks . . . within the time frame of the statute" but did not "receive any overtime pay." Id. ¶ 4. Dante Decapua is therefore owed $24,453.90 in unpaid overtime (((18.00 * 0.5) * 15) * 181.14).
Samuel Decapua was paid an average of $23.50 an hour and worked an average of 15 hours of overtime a week. S. Decapua Inquest Decl. ¶ 3. Decapua worked for Fattorusso for 172.29 weeks but did not "receive any overtime pay." Id. ¶ 4. Samuel Decapua is therefore owed $30,366.11 in unpaid overtime (((23.50 * 0.5) * 15) * 172.29).
Morrow was paid an average of $15.00 an hour and worked an average of 15 hours of overtime a week. Morrow Inquest Decl. ¶ 3. Morrow worked for Fattorusso for 60.86 weeks but did not "receive any overtime pay." Id. ¶ 4. Morrow is therefore owed $6,846.75 in unpaid overtime (((15.00 * 0.5) * 15) * 60.86).
Costa was paid an average of $19.50 an hour and worked an average of 15 hours of overtime a week. Costa Inquest Decl. ¶ 3. Costa worked for Fattorusso for 160.86 weeks but did not "receive any overtime pay." Id. ¶ 4. Costa is therefore owed $23,525.78 in unpaid overtime (((19.50 * 0.5) * 15) * 160.86).
Frieson was paid an average of $12.50 an hour and worked an average of 15 hours of overtime a week. Frieson Inquest Decl. ¶ 3. Frieson worked for Fattorusso for 52.14 weeks but did not "receive any overtime pay." Id. ¶ 4. Frieson is therefore owed $4,888.13 in unpaid overtime (((12.50 * 0.5) * 15) * 52.14).
Mota was paid an average of $12.50 an hour and worked an average of 15 hours of overtime a week. Mota Inquest Decl. ¶ 3. Mota worked for Fattorusso for 156.43 weeks but did not "receive any overtime pay." Id. ¶ 4. Mota is therefore owed $14,665.31 in unpaid overtime (((12.50 * 0.5) * 15) * 156.43).
Brian Beaulieu was paid an average of $21.00 an hour and worked an average of 15 hours of overtime a week. Beaulieu Inquest Decl. ¶ 3. Beaulieu worked for Fattorusso for 73.57 weeks but did not "receive any overtime pay." Id. ¶ 4. Beaulieu is therefore owed $11,587.28 in unpaid overtime (((21.00 * 0.5) * 15) * 73.57).
In sum, Toramall should be awarded $23,779.58 in unpaid overtime, Dante Decapua should be awarded $24,453.90 in unpaid overtime, Samuel Decapua should be awarded $30,366.11 in unpaid overtime, Morrow should be awarded $6,846.75 in unpaid overtime, Costa should be awarded $23,525.78 in unpaid overtime, Frieson should be awarded $4,888.13 in unpaid overtime, Mota should be awarded $14,665.31 in unpaid overtime and Beaulieu should be awarded $11,587.28 in unpaid overtime.
This Court previously performed an inquest on damages and issued a report and recommendation in this case after the entry of default against the corporate defendants. See Toramall v. Manhattan Constr. Grp. LLC. 2020 WL 2763737 (S.D.N.Y. May 28, 2020), adopted by, 2020 WL 6482796 (S.D.N.Y. Nov. 4, 2020). The amounts awarded there and the amounts awarded here differ slightly because of rounding and because we awarded plaintiffs the amount they requested in their damages chart. See Id. at *4.
B. Liquidated Damages
Since 2010, the NYLL has provided that
[i]n any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules, and, 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 ....NY. Lab. Law § 198(l-a) (emphasis added).
Here, Fattorusso did not submit any evidence on the question of good faith and there is no evidence in the record to support a finding that Fattorusso's underpayment of plaintiffs' wages was in good faith. Plaintiffs are therefore entitled to liquidated damages under the NYLL. Plaintiffs are owed 100% liquidated damages on their unpaid overtime wages under the NYLL.
Although plaintiffs' brief claims "Plaintiffs do not seek double-liquidated damages," PI. Mem. at 14 n.6, plaintiffs' calculation of damages includes liquidated damages under the FLSA and NYLL, see PI. Rule 56.1 ¶ 50. Additionally, plaintiffs' motion states that plaintiffs seek an order "[a]warding Plaintiffs liquidated damages under the FLSA and NYLL." PI. Mot. at 1. Had we considered plaintiffs' FLSA claim, and plaintiffs had not failed to establish they were covered by the FLSA, plaintiffs would still not be entitled to recover liquidated damages for both their FLSA and NYLL overtime wage claims. See Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) ("We therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages for the same course of conduct.").
C. Summary of Amounts to Be Awarded
Plaintiffs also request attorney's fees in their Rule 56.1 Statement. See PI. Rule 56.1 ¶ 47. Plaintiffs have not moved for summary judgment on the issue of attorney's fees, and therefore their request for attorney's fees should be denied. Plaintiffs' Rule 56.1 Statement claims that "each Plaintiff is entitled to an additional $2,500 under NYLL § 195(1)." PI. Rule 56.1 ¶ 48. Plaintiffs also include this number in calculating the damages owed each plaintiff. See id. ¶ 50. N.Y. Lab. Law § 195(1) requires an employer to furnish an employee with certain information at the time of hire. Though plaintiffs' complaint states in its prayer for relief that plaintiffs seek penalties for "failure to comply with the notice and record keeping requirements of NYLL §195(1) [sic]," Comp. at 15, the complaint only makes a claim under N.Y. Lab. Law § 195(3) for failure to furnish proper wage statements, see id. ¶¶ 105-109. Additionally, plaintiffs do not move for summary judgment on the question of whether Fattorusso violated N.Y. Lab. Law § 195(1). Accordingly, plaintiffs' apparent request for damages under N.Y. Lab. Law § 195(1) should be denied.
Plaintiff
Overtime Wages
Liquidated Damages
Total
Sunil Toramall
$23,779.58
$23,779.58
$47,559.16
Dante Decapua
$24,453.90
$24,453.90
$48,907.80
Samuel Decapua
$30,366.11
$30,366.11
$60,732.22
Anthony Morrow
$6,846.75
$6,846.75
$13,693.50
Ryan Costa
$23,525.78
$23,525.78
$47,051.56
Phillip Frieson
$4,888.13
$4,888.13
$9,776.26
Jose Mota
$14,665.31
$14,665.31
$29,330.62
Brian Beaulieu
$11,587.28
$11,587.28
$23,174.56
V. CONCLUSION
For the foregoing reasons, plaintiffs' motion for summary judgment (Docket # 76) should be granted in part. Plaintiffs should be award damages against defendant Dewey Fattorusso in the following amounts: Sunil Toramall: $47,559.16, Dante Decapua: $48,907.80, Samuel Decapua: $60,732.22, Anthony Morrow: $13,693.50, Ryan Costa: $47,051.56, Phillip Frieson: $9,776.26, Jose Mota: $29,330.62 and Brian Beaulieu: $23,174.56.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, PC, 596 F.3d 84, 92 (2d Cir. 2010).