Opinion
20 Civ. 3751 (GBD) (GWG)
09-16-2022
RAFAEL ALEJANDRO LIRIANO URENA, et al. individually and on behalf of others similarly situated, Plaintiff, v. 0325 TUTA CORP. d/b/a LA GRAN ANTILLANA, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiffs Rafael Alejandro Liriano Urena, Charlie Uverea, and Abisai Nava brought this action against defendants 0325 Tuta Corp. d/b/a/ La Gran Antillana, California Market Corp. d/b/a La Gran Antillana, (“the Corporate Defendants”), and Raul Pegero, Andy Pegero, and Miyiera “Doe” (“the Individual Defendants”), seeking 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”). See First Amended Complaint, filed Feb. 19, 2021 (Docket # 47) (“Am. Comp.”). Plaintiffs seek a default judgment against all defendants.For the reasons stated below, a judgment should be entered against all defendants except for Miyiera “Doe.”
See Proposed Findings of Fact and Conclusions of Law, filed Apr. 8, 2022 (Docket # 82) (“Proposed Findings”); Declaration of William K. Oates in Support, filed Apr. 8, 2022 (Docket # 83) (“Oates Decl.”); Proposed Default Judgment, filed Apr. 8, 2022 (Docket # 84).
I. BACKGROUND
A. Procedural Background
Plaintiffs filed the amended complaint in this action on February 19, 2021. See Am. Comp. The Individual Defendants were served on March 22, 2021, see Affidavits of Service, filed Mar. 23, 2021 (Docket ## 50-52), and the Corporate Defendants were served two days later, see Affidavits of Service, filed Mar. 29, 2021 (Docket ## 53-54). On April 15, 2021, plaintiffs sought certificates of default for all defendants, see Proposed Certificates of Default, filed Apr. 15, 2021 (Docket ## 61-65), which the Clerk issued, see Clerk's Certificates of Default, filed Apr. 15, 2021 (Docket ## 67-71). On May 7, 2021, plaintiffs filed a motion for default judgment against all defendants, see Motion for Default Judgement, filed May 7, 2021 (Docket # 73).
On February 24, 2022, Judge Daniels granted the motion for default judgment as to all defendants except Miyiera “Doe.” Order, dated Feb. 24, 2022 (Docket # 80). Judge Daniels then referred this matter to the undersigned for an inquest on damages “and for a determination of whether default may be entered upon Miyiera ‘Doe' pursuant to Federal Rule of Civil Procedure 55.” Id. This Court then issued a scheduling order directing plaintiffs to file proposed findings of fact and conclusions of law. See Scheduling Order for Damages Inquest, dated Feb. 24, 2022 (Docket # 81) (“Scheduling Order”). Plaintiffs filed proposed findings of fact and conclusions of law on April 8, 2022. See Proposed Findings. Defendants have not responded to any of the filings.
We address the question of whether Miyiera “Doe” has defaulted in Section II.A, below.
In light of defendants' default, plaintiffs' properly pleaded allegations in the amended complaint, except those related to damages, are accepted as true. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint.” (punctuation omitted)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor.”).
As to damages, “[t]he district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim” and (2) “assess[] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Plaintiffs bear the burden of establishing their entitlement to the amount sought. See Trs. of Local 813 Ins. Tr. Fund v. Rogan Bros. Sanitation Inc., 2018 WL 1587058, at *5 (S.D.N.Y. Mar. 28, 2018). In the case of a default where the defendant has never appeared, “a court may base its determination of damages solely on the plaintiff's submissions.” Id. (citing Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). While a court must “take the necessary steps to establish damages with reasonable certainty,” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997), a court need not hold a hearing “as long as it ensure[s] that there [is] a basis for the damages specified in a default judgment,” Fustok, 873 F.2d at 40.
Here, the Court's Scheduling Order notified the parties that the Court might conduct the inquest into damages based upon the written submissions of the parties, but that a party may seek an evidentiary hearing. See Scheduling Order ¶ 3. No party has requested an evidentiary hearing. Moreover, because plaintiffs' submissions provide a basis for an award of damages, no hearing is required.
B. Relevant Facts
Plaintiffs were employed by defendants at a food market called “La Gran Antillana,” located at 366 East 204th Street, Bronx, New York 10467. Am. Comp. ¶¶ 1-3, 19-38. The Corporate and Individual Defendants were all plaintiffs' employers. See id.
1. Urena
Urena was employed as a laborer at La Gran Antillana from June 2, 2018 to November 23, 2019. See id. ¶ 20; Declaration of Rafael Alejandro Liriano Urena, annexed as Ex. M to Oates Decl. (Docket # 83-13) (“Urena Decl.”), ¶¶ 8-9. Urena was “ostensibly employed as a delivery worker,” although “he spent over 20% of each day performing non-tipped duties.” Am. Comp. ¶ 41; Urena Decl. ¶¶ 9-11.Urena typically worked seven days per week, twelve hours a day - an average of 84 hours per week. See Urena Decl. ¶ 16. Nonetheless, Urena was paid a fixed salary of $525.00 per week. Id. ¶ 18. Urena was never told “that his tips were being included as an offset for wages.” Am. Comp. ¶ 54; Urena Decl. ¶ 21. Defendants did not track Urena's hours worked after the first five weeks of his employment, nor did defendants require Urena to track his hours. See Am. Comp. ¶ 56; Urena Decl. ¶ 23. Urena was not notified of the FLSA and NYLL's minimum wage and overtime requirements and was not provided with the wage and pay statements required by NYLL §§ 195(1), (3). See Am. Comp. 58-60.
Accordingly, defendants were not entitled to tip credits with respect to Urena. See 12 N.Y. Comp. Codes R. & Regs. Tit. 12, § 146-2.9.
2. Uverea
Uverea was employed as a store assistant at La Gran Antillana from January 2020 to August 7, 2020. See Am. Comp. ¶¶ 61-62; Declaration of Charlie Uverea, annexed as Ex. N to Oates Decl. (Docket # 83-14) (“Uverea Decl.”), ¶ 8. Uverea worked six days a week, on an alternating schedule. See Uverea Decl. ¶ 13. One week, Uverea would work 9.5 hours per day, six days a week. See id. The next week, Uverea would work five 9.5 hour-days and one 14.5 hour-day. Uverea thus averaged 59.5 hours per week. See id. However, neither Uverea nor defendants maintained accurate, contemporaneous records of Uverea's hours worked. See Id. ¶ 17; Am. Comp. ¶ 71. For the first week of Uverea's employment, he was paid a fixed salary of $600.00 per week. See Uverea Decl. ¶ 15. Thereafter, Uverea was paid a fixed salary of $670.00 per week. See id. ¶ 16. Like Urena, Uverea was not notified of the FLSA and NYLL's minimum wage and overtime requirements and was not provided with the wage and pay statements required by NYLL §§ 195(1), (3). See Am. Comp. ¶¶ 73-75.
3. Nava
Nava was employed as a cashier at La Gran Antillana from April 10, 2020 to February 6, 2021. See Am. Comp. ¶¶ 76-77; Declaration of Abisai Nava, annexed as Ex. O to Oates Decl. (Docket # 83-15), (“Nava Decl.”), ¶¶ 8-9. In addition to her cashier duties, Nava was tasked with cleaning the refrigerator and organizing inventory. See Am. Comp. ¶ 77; Nava Decl. ¶ 9. From April 10 to April 16, 2020, Nava worked 60 hours per week, and was paid $15.00 per hour. See Nava Decl. ¶¶ 14, 22. For the remainder of her employment, Nava was paid $ 13.00 per hour. See id. ¶ 23. Nava's hours, however, varied. From April 17 to June 30, 2020, Nava worked 42 hours per week. See id. ¶ 15. From July 1 to August 31, 2020, Nava worked 35 to 42 hours per week. See id. ¶ 16. From September 1 to November 30, 2020, Nava worked 28 to 35 hours per week. See id. ¶ 17. From December 1 to December 31, 2020, Nava worked 28 to 38 hours per week. See id. ¶ 18. From January 1 to January 31, 2021, Nava worked 28 hours per week. See id. ¶ 19. Finally, from February 1 to February 6, 2021, Nava worked 21 hours. See id. ¶ 20.
Defendants did not require Nava to keep track of her hours worked. See id. ¶ 26. Nor did defendants maintain accurate, contemporaneous records of Nava's hours. See id. Nava was not notified of the FLSA and NYLL's minimum wage and overtime requirements, nor was she provided with the wage and pay statements required by NYLL §§ 195(1), (3). See Am. Comp. ¶¶ 93-95.
Collectively, plaintiffs seek $242,013.50 for unpaid minimum wages, unpaid overtime wages, unpaid spread of hours pay, liquidated damages, and notice violations under the NYLL, Oates Decl. ¶ 26; $14,381.50 in attorneys' fees and costs, see id. ¶ 27; and prejudgment interest, id. ¶ 28.
II. DISCUSSION
A. Whether Miyiera “Doe” is Subject to a Default Judgment
As one court has noted, “default judgments cannot be entered against unnamed or fictitious parties because they have not been properly identified and served.” Thompson v. Mosby Legal Grp., LLC, 2013 WL 2191511, at *1 (M.D. Fla. May 21, 2013); accord CIT Bank, N.A. v. Paganos, 2015 WL 13731361, at *3 n.6 (E.D.N.Y. Sept. 25, 2015) (citing cases). This rule has been applied even where the fictitious defendant's first name is identified in the complaint. See Bautista v. ABC Corp., 2021 WL 1225872, at *2 n.2 (S.D.N.Y. Apr. 1, 2021) (denying plaintiff's effort to secure default judgment against “John Doe and ‘Lin' Doe”).
Here, the plaintiffs have filed an affidavit of service on “Miyiera Doe.” See Affidavit of Service, filed Mar. 23, 2021 (Docket # 51). The affidavit of service, however, does not rely on personal service on “Miyiera Doe.” Instead, apparently relying on the method of service provided in N.Y. C.P.L.R. § 308(2) (as permitted by Fed.R.Civ.P. 4(e)(1)), the summons and complaint were left with a person of “suitable age and discretion” at the La Gran Antillana restaurant and then mailed to the restaurant - apparently addressed to “Miyiera Doe.” See Affidavit of Service, filed Mar. 23, 2021 (Docket # 51). Such service does not comply with § 308(2), however, which requires that a mailing actually be made “to the person” at the business where the person works. Given the lack of a critical element of the defendant's full name, we do not find that the mailing was addressed “to the person” against whom the default judgment is sought. Accordingly, service was not proper as to Miyiera “Doe” and no default judgment should be entered against her. Additionally, Miyiera “Doe” should be dismissed as a defendant inasmuch as the time for service under Fed.R.Civ.P. 4(m) has expired and plaintiffs have not shown good cause to extend the time period.
B. Damages
Having established that a default judgment is proper as to only the Corporate Defendants, Raul Pegero, and Andy Pegero, we turn now to the question of the damages to which plaintiffs are entitled. Here, plaintiffs brought suit under both the NYLL and the FLSA. It is settled that while
a plaintiff may be entitled to recover unpaid minimum wages and overtime pay under both the FLSA and the NYLL, he or she may not recover twice. Instead, where a plaintiff is entitled to damages under both federal and state wage law, a plaintiff may recover under the statute which provides the greatest amount of damages.Ergin v. 8th Hill Inc., 2022 WL 1037655, at *3 (S.D.N.Y. Apr. 6, 2022), adopted, 2022 WL 1256996 (S.D.N.Y. Apr. 26, 2022) (internal citations omitted). Because the NYLL provides for the greater recovery in this case, we address only the provisions of the NYLL.
1. Unpaid Minimum Wage
Plaintiffs have failed to plead or otherwise submit evidence addressing whether defendants had eleven or more employees such that they could be considered a “large employer.” N.Y. Lab. Law § 652(1)(a)(i). Accordingly, plaintiffs should be compensated at the rate for small employers in New York City. See Anzurez v. La Unica Caridad Inc., 2021 WL 2909521, at *4 (S.D.N.Y. July 12, 2021); Maria v. Rouge Tomate Chelsea LLC, 2020 WL 6049893, at *4 (S.D.N.Y. Oct. 14, 2020). For the first 30 weeks and two days of Urena's employment, this rate was $12.00 per hour. For the remainder of Urena's employment, it was $13.50 per hour. For the entirety of Uverea and Nava's respective employments, the applicable rate was $15.00 per hour. See N.Y. Lab. Law § 652(1)(a)(ii).
Urena and Uverea were paid weekly, rather than hourly. See Urena Decl. ¶ 18; Uverea Decl. ¶¶ 15-16. Under N.Y. Comp. Codes R. & Regs. tit. 12 § 146-3.5(b):
If an employer fails to pay an employee an hourly rate of pay, the employee's regular hourly rate of pay shall be calculated by dividing the employee's total weekly earnings, not including exclusions from the regular rate, by the lesser of 40 hours or the actual number of hours worked by that employee during the work week.
Throughout his employment, Urena was paid a flat weekly rate of $525.00. Urena Decl. ¶ 18. Pursuant to the formula in N.Y. Comp. Codes R. & Regs. tit. 12 § 146-3.5(b), this translates to a weekly rate of $13.13 (525 / 40 = 13.125), which is below the applicable minimum wage of $13.50 for the period of December 31, 2018 to November 23, 2019. See N.Y. Lab. Law § 652(1)(a)(ii). For the preceding period, Urena's weekly rate was in excess of the $12. 00 minimum wage. As reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Urena should be awarded $695.60 for unpaid minimum wages.
Here and elsewhere on the “Minimum Wage & Overtime Chart,” where a plaintiff's first or last week of employment does not encompass a full work week, or where a plaintiff's stated average weekly hours change in the middle of a week, we prorate the hours worked, except where the submitted evidence paints a clear picture of the hours worked during such a week, see, e.g., Nava Decl. ¶ 20. Urena typically worked 12 hours per day, seven days a week -totaling 84 hours each week. See Urena Decl. ¶ 16. However, he only worked two days in his first week of employment (which ended on Sunday, June 3, 2018). We therefore assign Urena 24 hours of non-overtime and 0 hours of overtime for this week (rather than 40 hours of nonovertime and 44 hours of overtime). Similarly, where a plaintiff's rate of pay changes mid-week, we apply the plaintiff's rate of pay for the hours of that week in which it was applicable.
Uverea was paid a fixed salary of $600 for his first week of employment and was thereafter paid a fixed salary of $675 per week. See Uverea Decl. ¶¶ 15-16. Applying the formula in N.Y. Comp. Codes R. & Regs. tit. 12 § 146-3.5(b), this translates to a weekly rate of $15.00 (600 / 40 = 15) for Uverea's first week, and a rate of $16.88 (675 / 40 = 16.875) thereafter. The former rate is consistent with, and the latter rate is in excess of, the applicable minimum wage. See N.Y. Lab. Law § 652(1)(a)(ii). Accordingly, as reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Uverea was sufficiently paid for his nonovertime hours and is not entitled to any unpaid minimum wage damages.
From the start of her employment on April 10, 2020, through April 16, 2020, Nava was paid $15.00 per hour, consistent with the applicable minimum wage. See Nava Decl. ¶ 22; N.Y. Lab. Law § 652(1)(a)(ii). However, for the remainder of her employment, Nava was paid $13.00 per hour, beneath the applicable minimum wage. See Nava Decl. ¶ 23; N.Y. Lab. Law § 652(1)(a)(ii). As reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Nava should be awarded $2,645.58 for unpaid minimum wages.
2. Unpaid Overtime Wages
The NYLL requires an employer to pay “an employee for overtime at a wage rate of 11/2 times the employee's regular rate for hours worked in excess of 40 hours in one workweek.” N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.4. Where the plaintiff has been paid below the minimum wage, “the appropriate overtime rate [is] one-and-a-half times the minimum wage rate.” Nana v. Le Viking LLC, 2019 WL 3244181, at *3 (S.D.N.Y. July 19, 2019). However, where the plaintiff is paid consistent with or in excess of the applicable minimum wage, the appropriate overtime rate is 1.5 times the plaintiff's regular rate. See, e.g., Ramos v. Guaba Deli Grocery Corp., 2021 WL 5563714, at *9 (S.D.N.Y. Nov. 29, 2021). As noted above, in instances where plaintiffs were paid weekly rather than hourly, we compute plaintiffs' “regular rate” (and their corresponding overtime rate) by reference to the formula set forth in N.Y. Comp. Codes R. & Regs. tit. 12 § 146-3.5(b).
Based on his sworn representation that he typically worked 84 hours per week, and considering the duration of his employment, see Urena Decl. ¶ 8-9, 16, Urena worked 3,376 overtime hours for which he was insufficiently compensated, as reflected in the Minimum Wage & Overtime Chart. For 1,320 of those hours, Urena's $13.13 regular rate (which corresponds to a $19.70 overtime rate) was in excess of the applicable minimum wage. See N.Y. Lab. Law § 652(1)(a)(ii). For 2,056 hours, Urena's regular rate was beneath the applicable minimum wage, and his regular overtime rate was beneath the then-applicable $20.25 minimum overtime rate. See id. Accordingly, as reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Urena is entitled to $67,631.40 in unpaid overtime.
In certain instances, plaintiffs' weekly pay exceeded that required by the minimum wage. However, we do not reduce plaintiffs' damages by the difference between their regular rate and the minimum wage rate in these circumstances because “a fixed weekly salary ‘will not be deemed to include an overtime component in the absence of an express agreement,'” Ramos, 2021 WL 5563714, at *8 (quoting Wong v. Hunda Glass Corp., 2010 WL 2541698, at *2 (S.D.N.Y. June 23, 2010)), and there is no evidence of any such agreement here.
Assuming a start date of January 13, 2020,Uverea, who worked until August 7, 2020, see Uverea Decl. ¶ 8, accumulated 568 overtime hours for which he was insufficiently compensated. See Minimum Wage & Overtime Chart. For the first 19.5 of these hours, Uverea's regular rate was $15.00 per hour (which corresponds to a $22.50 overtime rate). For the remaining hours, Uverea's regular rate was $16.88 (which corresponds to an overtime rate of $25.32). The former rate was consistent with the minimum wage, and the latter rate exceeded it. See N.Y. Lab. Law § 652(1)(a)(ii). Accordingly, as reflected on the Minimum Wage & Overtime Chart, Uverea is entitled to $14,326.77 in unpaid overtime.
Uverea has represented only that he began work in January 2020, failing to specify a particular start date. See Uverea Decl. ¶ 8. Thus, we select January 13, 2020, the start of the second full week in January 2020 as a reasonable point at which to begin Uverea's employment for the purposes of our calculations.
Nava worked 32.28 overtime hours for which she was insufficiently compensated. See Minimum Wage & Overtime Chart. For all such hours, Nava's regular rate was beneath the applicable $15.00 minimum wage (which corresponds to a $22.50 overtime rate). Accordingly, Nava is entitled to $578.10 in unpaid overtime. See id.
3. Spread of Hours
Under the NYLL, an employee is entitled to an extra hour's pay at the minimum wage rate for any day for which “the spread of hours exceeds 10.” N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6(a). “The spread of hours is the length of the interval between the beginning and end of an employee's workday.” Id. § 146-1.6 (emphasis omitted). “Effective as of January 1, 2011, the NYLL was amended such that the spread of hours regulations ‘apply to all employees in restaurants and all-year hotels, regardless of a given employee's regular rate of pay.'” Andrade v. 168 First Ave. Rest. Ltd., 2016 WL 3141567, at *5 (S.D.N.Y. June 3, 2016) (quoting N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6(d)), adopted, 2016 WL 3948101 (S.D.N.Y. July 19, 2016).
Urena worked in excess of 10 hours per day each day of his employment, which lasted for 77 weeks and one day - 540 days. See Urena Decl. ¶ 16. To calculate the spread of hours, we multiply the number of days Urena worked in excess of ten hours by the statutory minimum wage for the relevant period. For the first 212 days of this period, the applicable minimum wage was $12.00. For the remaining 328 days, the applicable minimum wage was $13.50. Thus, Urena is entitled to $6,972.00 for unpaid spread of hours.
Uverea worked in excess of 10 hours per day once every other week. See Uverea Decl. ¶ 13. Again assuming a start date of January 13, 2020, Uverea worked for 29 weeks and five days. See id. ¶ 8. This amounts to 15 occasions on which Uverea worked in excess of 10 hours per day. Throughout Uverea's employment, the statutory minimum wage was $15.00. Uverea is therefore entitled to $225.00 for unpaid spread of hours.
Nava did not at any point work in excess of 10 hours per day.
4. Liquidated Damages
Plaintiffs seek liquidated damages for 100% of their unpaid wages. See Proposed Findings ¶¶ 96-99. “The NYLL provides for a liquidated damages award equal to 100 percent of the plaintiff's actual damages, ‘unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law.'” Callender v. Panabori Food Corp., 2018 WL 4565876, at *13 (S.D.N.Y. July 11, 2018) (quoting N.Y. Lab. Law §§ 198(1)(a), 663(1)), adopted, 2018 WL 3728931 (S.D.N.Y. Aug. 6, 2018). Defendants defaulted and therefore have not provided any evidence to suggest they had a good faith basis to believe their underpayment complied with the law. Accordingly, plaintiffs should be awarded 100% of their “unpaid wages, which includes unpaid minimum wage, unpaid overtime, and unpaid spread-of-hours.” Villanueva v. 179 Third Ave. Rest. Inc., 500 F.Supp.3d 219, 239 (S.D.N.Y. 2020). This amounts to $75,299.00 for Urena, $14,551.77 for Uverea, and $3,223.68 for Nava.
5. Failure to Provide Notices and Wage Statements under NYLL
N.Y. Lab. Law § 195(1) requires that, at the time of hiring, an employer “provide his or her employees, in writing in English and in the language identified by each employee as [their] primary language,” notice of
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; . . . the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article; the name of the employer; any “doing business as” names used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary.Id. § 195(1)(a); accord Rouge Tomate, 2020 WL 6049893, at *5.
The notice must also state an employee's regular hourly rate and overtime rate of pay. N.Y. Lab. Law § 195(1)(a). Since February 25, 2015, the statutory damages for violating the notice requirement has been up to $50 per workday for a maximum of $5,000.00. N.Y. Lab. Law § 198(1)(b). All three plaintiffs have alleged that defendants did not provide them with the notice required by N.Y. Lab. Law § 195(1). See Am. Comp. ¶¶ 60, 75, 95. Given the length of their respective employments with defendants, see Urena Decl. ¶ 8, Uverea Decl. ¶ 8; Nava Decl. ¶ 8, plaintiffs are each eligible for up to $5,000.00 in statutory damages, see N.Y. Lab. Law § 198(1)(b). The award for a violation of section 195(1) is permissive, not mandatory. See Pugh v. Meric, 2019 WL 2568581, at *2 (S.D.N.Y. June 20, 2019) (“The use of the word ‘may' in NYLL § 198(1-b) indicates that recovery of damages under this sub-section is not automatic, particularly in light of the contrasting use of ‘shall' in Section 198(1-d).”). Nonetheless, in light of defendants' default, and the complete failure to provide any explanation for their violation of the statute, the maximum of $5,000.000 should be awarded for each plaintiff..
Furthermore, since April 9, 2011, 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). As reflected in the complaint, all plaintiffs have alleged that defendants did not provide them with an accurate statement of wages as required by N.Y. Lab. Law § 195(3), see Am. Comp. ¶¶ 59, 74, 95, and have therefore established that defendants violated N.Y. Lab. Law § 195(3). Since February 27, 2015, the statute provides for a penalty of $250 for each workday that the violations occurred, not to exceed $5,000.00. See N.Y. Labor Law § 198(1)(d). This penalty is “mandatory.” Pugh, 2019 WL 2568581, at *2. Each plaintiff should therefore be awarded $5,000.00 in statutory damages for the wage statement violations.
In total, each plaintiff should be awarded $10,000.00 in statutory damages under the NYLL.
6. Prejudgment Interest
Plaintiffs seek prejudgment interest. See Proposed Findings ¶ 100. A plaintiff who prevails on a NYLL-wage claim is entitled to prejudgment interest on any “underpayment” of wages. See N.Y. Lab. Law § 198(1)(a); Santana v. Latino Express Rests., Inc., 198 F.Supp.3d 285, 294-95 (S.D.N.Y. 2016); Castillo v. RV Transport, Inc., 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016). While “a plaintiff who receives FLSA liquidated damages may not also receive pre-judgment interest[,] . . . . liquidated damages under the NYLL are considered punitive in nature, thus enabling a plaintiff to recover both liquidated damages and pre-judgment interest.” Villanueva, 500 F.Supp.3d at 243. However, “the award of prejudgment interest applies only to the amount of underpayment of wages, not the liquidated damages.” Salustio v. 106 Columbia Deli Corp., 264 F.Supp.3d 540, 557 (S.D.N.Y. 2017). “Prejudgment interest is [also] not available for violations of the wage statement or wage notice provisions.” Rouge Tomate, 2020 WL 6049893, at *6.
We need not address plaintiffs' request for postjudgment interest, see id., as postjudgment interest will accrue automatically pursuant to 28 U.S.C. § 1961.
Prejudgment interest in New York runs at the rate of nine percent per annum. N.Y. C.P.L.R. § 5004. The starting date from which a court computes this interest is “the earliest ascertainable date the cause of action existed.” Conway v. Icahn & Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994) (quoting N.Y. C.P.L.R. § 5001(b)). However, “[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); see also Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998) (“New York law leaves to the discretion of the court the choice of whether to calculate prejudgment interest based upon the date when damages were incurred or ‘a single reasonable intermediate date,'. . . .”) (citing 155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560-61 (2d Dep't 1996)).
Here, Urena's claims for unpaid wages arose on different dates from June 2, 2018 to November 23, 2019. We calculate prejudgment interest from the midpoint date of this employment period: February 27, 2019. Accordingly, Urena is entitled to prejudgment interest on his unpaid wages damages of $75,299.00 from February 27, 2019, until the date judgment is entered. This amounts to $18.57 per day ([75,299.00 * .09] / 365 days).
Uverea's claims for unpaid wages arose on different dates from January 2020 to August 7, 2020. Assuming a start date of January 13, 2020, the midpoint date of Uverea's employment is April 26, 2020. Accordingly, Uverea is entitled to prejudgment interest on his unpaid wages damages of $14,551.77 from April 26, 2020, until the date judgment is entered. This amounts to $3.59 per day ([14,551.77 * .09] / 365 days).
Nava's claims for unpaid wages arose on different dates from April 10, 2020 to February 6, 2021. The midpoint date of Nava's employment is September 9, 2020. Accordingly, Nava is entitled to prejudgment interest on her unpaid wages damages of $3,223.68 from September 9, 2020, until the date judgment is entered. This amounts to $0.80 per day ([3,223.68 * .09] / 365 days).
7. Attorneys' Fees and Costs
Plaintiffs have prevailed on their NYLL claims and are therefore entitled to seek an award of reasonable attorneys' fees. See N.Y. Lab. Law § 663(4). As has been frequently stated, in determining a statutory fee award, “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (punctuation omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a “presumptively reasonable fee,” Arbor Hill, 522 F.3d at 183, and is commonly referred to as the “lodestar,” id.; see also Miroglio S.P.A. v. Conway Stores, Inc., 629 F.Supp.2d 307, 312 (S.D.N.Y. 2009). Using the “lodestar” method, plaintiffs request $12,887.50 in attorneys' fees. See Proposed Findings ¶ 77.
It is well-established that “any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records .... specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Fee applications that do not contain such supporting data “should normally be disallowed.” Id. at 1154; accord Barrera v. Brooklyn Music, Ltd., 346 F.Supp.2d 400, 412 (S.D.N.Y. 2004). As has previously been explained, “[w]hile it is permissible to provide a summary of time records (such as may appear on an invoice) in lieu of actual records, a person with knowledge must still provide the court with competent evidence that the summary is in fact based on time records that were contemporaneously made by each of the attorneys.” Rouge Tomate, 2020 WL 6049893, at *8. “Here, no person with knowledge has provided any sworn evidence that the documentation submitted is accurate at all, let alone based on time records contemporaneously [made]. In the absence of any sworn statement attesting to the number of hours and to the fact that they derive from contemporaneously made time records, the application must be disallowed.” Ergin v. 8th Hill Inc., 2022 WL 828303, at *6 (S.D.N.Y. Mar. 18, 2022); accord Press v. Concord Mortg. Corp., 2009 WL 6758998, at *9 (S.D.N.Y. Dec. 7, 2009) (“Because courts routinely decline to award fees when a party submits a fee request that fails to indicate that it is based on contemporaneous time records, . . .fees should not be awarded here.”) (citations omitted), report and recommendation adopted as modified, 2010 WL 3199684 (S.D.N.Y. Aug. 11, 2010).
A prevailing plaintiff under NYLL is also entitled to costs, which “include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (punctuation omitted); accord Febus v. Guardian First Funding Grp., LLC, 870 F.Supp.2d 337, 341 (S.D.N.Y. 2012). Here, plaintiffs seek $1,494.00 in costs consisting of a $400.00 filing fee and $1,094.00 in service fees. See Proposed Findings ¶¶ 105-06; Oates Decl. ¶ 20; Time Records at 4-5. Such costs are generally recoverable. See, e.g., Villanueva, 500 F.Supp.3d at 243 (awarding costs for a filing fee and process server fees). Accordingly, plaintiffs should be awarded $1,494.00 in costs.
In sum, Urena should be awarded $695.60 in unpaid minimum wages; $67,631.40 in unpaid overtime; $6,972.00 in unpaid spread of hours; $75,299.00 in liquidated damages; $10,000 in statutory damages for notice and wage statement violations; and interest at a rate of $18.57 per day from February 27, 2019, and continuing until the date judgment is entered on his unpaid wages. The total amount due before the interest calculation is $160,458.00.
Uverea should be awarded $14,326.77 in unpaid overtime; $225.00 in unpaid spread of hours; $14,551.77 in liquidated damages; $10,000 in statutory damages for notice and wage statement violations; and interest at a rate of $3.59 per day from April 26, 2020, and continuing until the date judgment is entered on his unpaid wages. The total amount due before the interest calculation is $39,103.54.
Nava should be awarded $2,645.58 in unpaid minimum wages; $578.10 in unpaid overtime; $3,223.68 in liquidated damages; $10,000 in statutory damages for notice and wage statement violations; and interest at a rate of $0.80 per day from September 9, 2020, and continuing until the date judgment is entered on her unpaid wages. The total amount due before the interest calculation is $16,447.36.
Plaintiffs are also entitled to $1,494.00 in costs.
Additionally, plaintiffs request that the judgment include a provision automatically increasing the judgment by the amount set forth in N.Y. Lab. Law § 198(4). See Proposed Findings ¶ 104. N.Y. Lab. Law § 198(4) provides that:
Any judgment or court order awarding remedies under this section shall provide that if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.
Accordingly, if any part of the judgment is unpaid at the expiration of such time, and no appeal is pending, the judgment should provide that it is increased by 15 percent.
III. CONCLUSION
Miyiera “Doe” should be dismissed as a defendant.
Plaintiffs are entitled to a judgment against defendants 0325 Tuta Corp. d/b/a/ La Gran Antillana, California Market Corp. d/b/a La Gran Antillana, Raul Pegero and Andy Pegero as follows:
(1) Urena should be awarded to judgment in the amount of $160,458.00 plus prejudgment interest calculated from February 27, 2019, to the date judgment is entered at the rate of $18.57 per day on his unpaid wages.
(2) Uverea should be awarded judgment in the amount of $39,103.54 plus prejudgment interest calculated from April 26, 2020, to the date judgment is entered at the rate of $3.59 per day on his unpaid wages.
(3) Nava should be awarded judgment in the amount of $16,447.36 plus prejudgment interest calculated from September 9, 2020, to the date judgment is entered at the rate of $0.80 per day on her unpaid wages.
Plaintiffs should also be awarded a judgment for $1,494.00 in costs.
The text of the judgment should provide that if the judgment is not entirely paid within 90 days of judgment, or 90 days after the expiration of appeal, whichever is later, and no appeal is pending, then the total amount of judgment shall automatically increase by 15 percent.
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 Daniels. 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, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
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