Proano v. Melrose Home Improvement Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SANTO PROANO and ELENA DELGADO, on

behalf of themselves and others

similarly situated in the proposed

FLSA Collective Action,

Plaintiffs, MEMORANDUM & ORDER

- against – 22-CV-6050

MELROSE HOME IMPROVEMENT CORP. and

LUIS GUALPA,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs Santo Proano and Elena Delgado (together,

“Plaintiffs”) brought this action against Melrose Home Improvement

Corp. and Luis Gualpa (together, “Defendants”) pursuant to the

Fair Labor Standards Act (“FLSA”), 29 U.S.C § 201 et seq. and the

New York State Labor Law (“NYLL”) § 190 et seq. Plaintiffs seek

unpaid wage and overtime pay, FLSA liquidated damages, NYLL

liquidated damages, damages for failure to provide written notice

of rate of pay, attorneys’ fees and costs, and post-judgment

interest. Defendants failed to appear or otherwise defend this

action. After the Clerk of the Court entered default against

defendants pursuant to Rule 55(a) of the Federal Rules of Civil

Procedure, Plaintiffs filed the instant motion for entry of default

judgment. For the reasons stated herein, Plaintiffs’ motion for

entry of a default judgment is granted in part and denied in part

pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure.

Collectively, Plaintiffs are awarded $120,322.50 in damages,

$14,981.37 in pre-judgment interest, $5,597.50 in attorneys’ fees,

and $584.60 in costs, plus post judgment interest as prescribed in

28 U.S.C. § 1961.

BACKGROUND

The following facts are taken from Plaintiffs’ Complaint,

Motion for Default Judgment, supporting memorandum, and supporting

declaration and affidavits. (See ECF No. 1, Compl.; ECF No. 20,

Mem. in Supp. of Mot. for Default J. (“Mem.”); ECF No. 21, Decl.

of Jason Mizrahi (“Mizrahi Decl.”); ECF No. 22, Aff. of Santo

Proano (“Proano Aff.”); ECF No. 23, Aff. of Elena Delgado (“Delgado

Aff.”).)

I. Factual Background

Plaintiffs allege that Melrose Home Improvement Corp.

(“Melrose”) is a New York corporation with its principal place of

business in Elmont, New York. (Compl. ¶ 12–13.) It has employees

engaged in commerce and an annual gross sales volume of at least

$500,000. (Id. ¶ 14.) Plaintiff also alleges that Luis Gualpa

(“Gualpa”) has “operational control over,” has an ownership

interest in, and “controls significant functions of” Melrose. (Id.

¶ 23.) Both Mr. Proano and Ms. Delgado worked as manual laborers

for Defendants’ construction company. (Id. ¶¶ 6–7, 9–10.) Ms.

Delgado worked for Defendants from January 2020 through

approximately December 2021, and Mr. Proano worked for Defendants

from September 2021 through December 2021.1 (Id.; see also Mizrahi

Decl. Ex. A.)

According to Plaintiffs’ complaint, Defendants had the power

to hire and fire Plaintiffs, control the terms and conditions of

Plaintiffs’ employment, and determine the rate and method of

Plaintiffs’ compensation. (Compl. ¶ 30.) Further, both Melrose

and Mr. Gualpa “possessed substantial control over” Plaintiffs’

working conditions and the policies and practices regarding

Plaintiffs’ employment and compensation. (Id. ¶ 25.) Mr. Gualpa

set employees’ schedules and maintained employee records. (Id.

¶ 20.) Plaintiffs were not required to keep track of their time

and are unaware of Defendants having used sign-in sheets, punch

cards, or any other time tracking methods that would have reflected

the actual number of hours they worked. (Proano Aff. ¶ 11; Delgado

Aff. ¶ 11.)

1 The Complaint includes what appears to be an error in ¶¶ 6-7 and 9-10, as it

refers to Mr. Proano as working from January 2020 through December 2021, and

Ms. Delgado as working from September 2021 through December 2021. This is

inconsistent with the declarations, (see Proano Aff. ¶ 7, Delgado Aff. ¶ 4), as

well as the remainder of the complaint, (see Compl. ¶¶ 33, 38). The Court may

overlook clear and inconsequential typographical errors in the pleadings and

disregards the inconsistent portion of the complaint. See, e.g., Reliance

Commc'ns LLC v. Retail Store Ventures, Inc., No. 12-cv-2067 (ADS), 2013 WL

4039378, at *1 n.2 (E.D.N.Y. Aug. 7, 2013) (overlooking a typographical error

wherein the plaintiff inserted another entity’s name in place of the defendant’s

name in one cause of action but used the correct name elsewhere in the pleading).

From January 1, 2020, through December 31, 2021, Ms. Delgado

worked at Defendants’ construction company between 55 to 72 hours

per week, each week, for an average of 63.5 hours each week.

(Compl. ¶ 33; see Mizrahi Decl. Ex. A.) From January 1, 2020,

through November 31, 2021, Defendants paid Ms. Delgado $30 per

hour for all hours worked. (Compl. ¶ 34; see Mizrahi Decl. Ex. A.)

Defendants paid Ms. Delgado no wages for her final month of

employment. (Compl. ¶ 35; see Mizrahi Decl. Ex. A.)

From September 1, 2021, through December 31, 2021, Mr. Proano

worked at Defendants’ construction company between 55 to 72 hours

per week, each week, for an average of 63.5 hours each week.

(Compl. ¶ 38; see Mizrahi Decl. Ex. A.) From September 1, 2021,

through November 31, 2021, Defendants paid Mr. Proano $15 per hour

for all hours worked. (Compl. ¶ 39; see Mizrahi Decl. Ex. A.)

Defendants paid Mr. Proano no wages for his final month of

employment.2 (Compl. ¶ 40; see Mizrahi Decl. Ex. A.)

Defendants required Plaintiffs to work in excess of forty

hours per week, but never paid an overtime premium of one- and

one-half-times the regular rate of pay for those hours in excess

of forty. (Compl. ¶ 41.) Defendants also did not provide

Plaintiffs wage statements in accordance with Section 195(3) of

2 Paragraphs 39 and 40 of the Complaint refer to “Plaintiff Delgado” but clearly

refer to Mr. Proano’s work experience in light of the sub-heading of the section

(“Factual Allegations Pertaining Specifically to Plaintiff Santo Proano”). As

such, the Court disregards the inconsistencies as typographical errors. See

footnote 2, supra.

the NYLL. (Id. ¶ 43.) Finally, Defendants did not give Plaintiffs

notice of their rates of pay, Defendants’ construction company’s

regular pay day, or “such other information” required by

Section 195(1) of the NYLL. (Id. ¶ 44.)

II. Procedural Background

Plaintiffs commenced this action against Defendants on

October 9, 2022. (See Compl.) The first four counts of

Plaintiffs’ Complaint allege violations of the FLSA’s and the

NYLL’s minimum wage and overtime regulations. (See id. ¶¶ 50–69.)

The next four counts allege violations of the NYLL’s spread-of-

hours pay, wage notice, wage statement, and timely pay regulations.

(See id. ¶¶ 70–84.) Plaintiffs seek certification of this action

as a FLSA collective action, declaratory relief, unpaid wages,

damages, pre-judgment and post-judgment interest, attorneys’ fees,

and costs. (See id. pp. 12–14.)

On November 21, 2022, the Clerk of Court issued a summons to

each defendant at 9 Melrose Street, Elmont, NY 11003. (ECF No. 6.)

On October 20, 2022, Plaintiffs filed an affidavit stating that

the summons and Complaint had been served on Melrose through the

New York Secretary of State on October 17, 2022. (ECF No. 9.)

Subsequently, on November 10, 2022, Plaintiffs filed a request for

a certificate of default against all Defendants, based on their

failure to answer or otherwise respond to the complaint. (ECF No.

10.) The Clerk of Court entered a certificate of default against

Melrose on November 14, 2022, but stated that Mr. Gualpa’s service

had not been noted on the docket and denied the request for a

certificate of default as to Mr. Gualpa.

On March 27, 2023, Magistrate Judge Ramon Reyes entered an

order noting that Plaintiffs had not yet served Mr. Gualpa and

ordering Plaintiffs to do so by April 10, 2023, and also ordering

Plaintiffs to move for default judgment against Melrose by April

10, 2023. On April 5, 2023, Plaintiffs filed an affidavit

representing that the summons and Complaint had been served on

Mr. Gualpa through personal service on a co-tenant at his dwelling,

at 9 Melrose Street, Elmont, NY 11003 on November 26, 2022, and

had him served by mail on December 1, 2022. (ECF No. 13.) On

April 6, 2023, Plaintiffs filed a request for a certificate of

default against Mr. Gualpa. (ECF No. 14.) The Clerk of Court

entered a certificate of default against Mr. Gualpa on April 11,

2023.

Subsequently, on April 10, 2023, and May 30, 2023, Plaintiffs

filed motions for extensions of time to move for default judgment,

(ECF Nos. 15, 17), both of which were granted by Magistrate Judge

Reyes. Plaintiffs filed their motion and supporting materials on

July 10, 2023, and served the Defendants with their motion papers.

(See Mot. for Default J.; Mem.; Mizrahi Decl.; Proano Aff.; Delgado

Aff.)

LEGAL STANDARD

Pursuant to Rule 55, courts follow a two-step process to enter

default judgment. City of New York v. Mickalis Pawn Shop, LLC,

645 F.3d 114, 128 (2d Cir. 2011). First, when the defendant fails

to plead or otherwise defend and that failure is shown by affidavit

or otherwise, the clerk of court enters the defendant’s default.

See Fed. R. Civ. P. 55(a). A court considers an entry of default

against a party to be an admission of all the well-pleaded

allegations in the complaint regarding liability. Cement &

Concrete Workers Dist. Council Welfare Fund v. Metro Found.

Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). Second, if

the defaulting party fails to appear or move to set aside the entry

of default under Rule 55(c), the opposing party may move the court

to enter a default judgment to establish liability and damages.

See Fed. R. Civ. P. 55(b)(2). Before entering a default judgment,

the court must ensure that (1) jurisdictional requirements are

satisfied, (2) the plaintiff took all required procedural steps in

moving for a default judgment, and (3) the plaintiff’s allegations

establish the defendant’s liability as a matter of law. Windward

Bora LLC v. Ingber, No. 2:21-cv-3308 (KAM), 2023 WL 6385815, at *2

(E.D.N.Y. Sept. 29, 2023). The court also must find a basis for

the damages specified in the default judgment. Jeremiah v. 5 Towns

Jewish Times, Inc., No. 1:22-cv-5942 (NGG), 2023 WL 5703698, at *3

(E.D.N.Y. Sept. 5, 2023).

Although the court accepts as true all well-pleaded

allegations in the complaint, the court must still ensure the

allegations provide a basis for liability and relief, and the court

has discretion to require further proof of necessary facts. Finkel

v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). If the unchallenged

facts establish the defendant’s liability, the court determines

the amount of damages due. See Credit Lyonnais Sec. (USA), Inc.

v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). The court may

determine damages without an in-person hearing based on the

plaintiff’s affidavits so long as it can ensure a basis for the

damages specified in the default judgment. Transatlantic Marine

Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc.,

109 F.3d 105, 111 (2d Cir. 1997).

DISCUSSION

I. Jurisdiction

The Court must assure itself of its jurisdiction. The Court

may not enter a default judgment unless it has subject-matter

jurisdiction over this action and personal jurisdiction over each

defendant. See Dumolo v. Dumolo, No. 1:17-cv-7294 (KAM), 2019 WL

1367751, at *4 (E.D.N.Y. Mar. 26, 2019).

A. Subject-Matter Jurisdiction

Federal district courts have original subject-matter

jurisdiction over all civil actions “arising under” the laws of

the United States. 28 U.S.C. § 1331. The FLSA, a federal statute,

creates the cause of action for the first and second counts in

Plaintiffs’ Complaint. (See Compl. ¶¶ 50–59.) Nothing in the

record suggests that Plaintiffs’ FLSA claims are immaterial, made

solely for the purpose of obtaining jurisdiction, or wholly

insubstantial or frivolous. See A&B Alt. Mktg. Inc. v. Int’l

Quality Fruit Inc., 35 F.4th 913, 915 n.2 (2d Cir. 2022) (listing

foregoing reasons why subject-matter jurisdiction may not exist

even where the complaint contains claims technically arising under

federal law). Plaintiffs’ Complaint thus arises under the laws of

the United States, which gives the Court federal question subject-

matter jurisdiction over this action. See, e.g., Rocha v. Bakhter

Afghan Halal Kababs, Inc., 44 F. Supp. 3d 337, 345 (E.D.N.Y.

2014).

The Court has supplemental jurisdiction over Plaintiffs’ NYLL

claims. Supplemental jurisdiction extends to state law claims

that so relate to the claims within the court’s original

jurisdiction that they form part of the same case or controversy.

28 U.S.C. § 1367(a). Here, supplemental jurisdiction clearly

extends to Plaintiffs’ third and fourth claims, which seek to

recover for unpaid minimum wages and overtime premiums under the

NYLL, because they virtually overlap with Plaintiffs’ first two

claims, which seek to recover for closely related violations under

the FLSA. (See Compl. ¶¶ 60-69.) Plaintiffs’ fifth through eighth

claims, which allege violations of the NYLL’s spread-of-hours pay,

wage notice, wage statement, and timely wage pay regulations under

the NYLL, (see id. ¶¶ 70–84), lack precise analogues in the FLSA.

Still, those claims form part of the same case or controversy

because “[r]esolving all of these claims requires[s] considering

evidence of the hours Plaintiff[s] worked, the rate and method by

which [they were] paid, the amounts [they were] paid, and the

parties’ records (or lack thereof) on these subjects.” See Jenkins

v. Yellowstone Props., Inc., No. 1:17-cv-7764 (VEC), 2019 WL

4392955, at *2 (S.D.N.Y. Sept. 12, 2019) (citing Lyndonville Sav.

Bank & Tr. Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000)).

The Court ultimately lacks subject-matter jurisdiction over,

and dismisses without prejudice, Plaintiffs’ wage notice and wage

statement claims under the NYLL, (see Compl. ¶¶ 74–84), however,

because Plaintiffs failed to allege facts to establish their

standing to pursue those claims in federal court. Article III of

the federal Constitution restricts federal court power to hearing

“cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. A

“case” or “controversy” cannot exist if the plaintiff lacks a

personal stake, or “standing.” TransUnion LLC v. Ramirez,

141 S. Ct. 2190, 2203 (2021). To have Article III standing, the

plaintiff must have suffered an injury-in-fact likely caused by

the defendant’s allegedly unlawful conduct and redressable by a

favorable court decision. Id. The injury must be “concrete and

particularized,” id., which means some specific harm to the

plaintiff beyond the defendant’s technical violation of a

statutory mandate, id. at 2213. Standing is not “dispensed in

gross.” Id. at 2208. Rather, the plaintiff must show standing

separately for each claim he or she presses. Id.

Here, Plaintiffs did not link any legally cognizable injury

that they personally experienced to Defendants’ failure to provide

wage statements and wage notices under the NYLL. The Complaint

merely alleges that Defendants failed to comply with these

statutory mandates. (See Compl. ¶¶ 76, 79, 82-83.) Mr. Proano’s

supporting affidavit3 elaborates that “Defendants’ failure to

provide accurate wage notices and accurate wage statements denied

me of my statutory right to receive true and accurate information

about the nature of my employment and related compensation

policies,” however, it still fails to establish an injury-in-fact.

(See Proano Aff. ¶ 15.) Without some tangible downstream harm

flowing from the statutory violations Plaintiffs cannot have

suffered a concrete injury resulting from Defendants’ violations

of the NYLL’s wage statement and wage notice requirements. Thus,

they lack Article III standing to pursue those claims in this

Court. Multiple courts in this district have reached similar

results after the Supreme Court’s decision in TransUnion clarified

the requirements to establish standing, beyond bare allegations of

3 Ms. Delgado’s affidavit does not mention the wage notice or wage statements.

(See generally Delgado Aff.)

statutory violations. See, e.g., Quieju v. La Jugeria Inc.,

No. 1:23-cv-264 (BMC), 2023 WL 3073518, at *2 (E.D.N.Y. Apr. 25,

2023); Guthrie v. Rainbow Fencing Inc., No. 1:21-cv-5929 (KAM),

2023 WL 2206568, at *6 (E.D.N.Y. Feb. 24, 2023); Sevilla v. House

of Salads One LLC, 1:20-cv-6072 (PKC), 2022 WL 954740, at *7

(E.D.N.Y. Mar. 30, 2022). Thus, because Plaintiffs lack standing,

the Court lacks subject matter jurisdiction over their wage notice

and wage statement claims under the NYLL.

B. Personal Jurisdiction

The Court finds that it has personal jurisdiction over each

defendant. Personal jurisdiction must comport with both state law

and the Due Process Clause of the federal Constitution. Relevant

Sports, LLC v. U.S. Soccer Fed’n, Inc., 61 F.4th 299, 305 (2d Cir.

2023). New York law authorizes personal jurisdiction over domestic

corporations, N.Y. C.P.L.R. § 301, and over non-domiciliary

defendants who transact business within the state, N.Y. C.P.L.R.

§ 302(a)(1).

The Due Process Clause is satisfied if the court has general

or specific personal jurisdiction over the defendant. Ford Motor

Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021);

see U.S. Const. amend. XIV, § 1. A court has “general” personal

jurisdiction over an individual defendant sued in his or her place

of domicile and over a corporate defendant sued in its state of

incorporation or principal place of business. Ford, 141 S. Ct. at

1024. A court has “specific” personal jurisdiction over a

defendant that purposefully avails itself of the privilege of doing

business in the forum state where the plaintiff’s claim arises out

of the defendant’s contacts with the forum. Id. at 1024–25.

Melrose Home Improvement Corp. is a New York corporation with

its principal place of business in Brooklyn, New York. (See Compl.

¶¶ 12-13.) Thus, the Court may exercise general personal

jurisdiction over Melrose in accordance with state law and the Due

Process Clause. See N.Y. C.P.L.R. § 301; Ford, 141 S. Ct. at 1024.

Plaintiffs do not allege Mr. Gualpa’s citizenship; however, they

allege that he transacted business within New York as the owner

and manager of Melrose, which is the conduct that gave rise to

Plaintiffs’ claims against him. (See Compl. ¶¶ 17–19, 22-23.)

Thus, the Court may exercise specific personal jurisdiction over

him. See N.Y. C.P.L.R. § 302(a)(1); Ford, 141 S. Ct. at 1025.

II. Procedural Requirements

Before the court will enter a default judgment, the plaintiff

must show that entry of default was appropriate, which itself

requires showing that the defendant was effectively served with

process. Sik Gaek, Inc. v. Yogi’s II, Inc., 682 F. App’x 52, 54

(2d Cir. 2017) (summary order). Local Rule 55.2 imposes the

additional requirements that the plaintiff attach certain

materials to the motion and file proof that all motion papers were

mailed to the defendant.

A. Service of Process

The Court finds that Plaintiffs properly served each

defendant with the summons and complaint. Federal Rule of Civil

Procedure 4(e)(1) permits a party to effect service in accordance

with the rules of the state where the district is located or where

service is made.

As to Melrose, state law permits a party to effect service by

delivering the summons and complaint to the New York Secretary of

State as an agent of the corporation. N.Y. Bus. Corp. Law

§ 306(b)(1). Here, Plaintiffs served Melrose with notice of this

action by their process server delivering the summons and Complaint

to Sue Zouky, an agent in the Office of the Secretary of State

authorized to accept service for Melrose. (See ECF No. 9.) Thus,

Plaintiffs properly served Melrose.

As to Mr. Gualpa, state law permits a party to effect service

by (1) delivering the summons within the state to a person of

suitable age and discretion at the dwelling place or usual place

of abode of the person to be served and (2) mailing the summons to

the person to be served at his or her last known residence, so

long as the delivery and mailing occur within twenty days of each

other. N.Y. C.P.L.R. § 308(2). Here, Plaintiffs served

Mr. Gualpa with notice of this action by their process server

delivering the summons and Complaint to Mr. Gualpa’s dwelling at

9 Melrose Street, Elmont, NY 11003, and leaving those documents

with a co-tenant, a person of suitable age and discretion. (See

ECF No. 13.) Five days later, Plaintiffs’ process server mailed

a copy of the summons and Complaint by first class mail to the

same address. (Id.) Thus, Plaintiffs properly served Mr. Gualpa.

B. Entry of Default

The Court next finds that the Clerk of Court properly entered

a certificate of default against each defendant. Because Melrose

was served on October 17, 2022, (see ECF No. 9), it was required

to answer or otherwise respond to the Complaint by November 7,

2022. See Fed. R. Civ. P. 12(a)(1)(A)(i). When it failed to do

so, Plaintiffs filed a request for a certificate of default and

the other materials required by Local Rule 55.1. (See ECF No. 10.)

The Clerk of Court entered a certificate of default against Melrose

on November 14, 2022. (ECF No. 11.)

Because Mr. Gualpa was served on November 26, 2022, (see ECF

No. 13), he was required to answer or otherwise respond to the

Complaint by December 17, 2022. See Fed. R. Civ. P.

12(a)(1)(A)(i). When he failed to do so, Plaintiffs filed a

request for a certificate of default and the other materials

required by Local Rule 55.1. (See ECF No. 14.) The Clerk of Court

entered a certificate of default against Mr. Gualpa on April 11,

2023. (ECF No. 16.)

C. Local Rule 55.2

Local Rule 55.2(b) requires that a plaintiff attach to a

motion for default the Clerk’s certificate of default, a copy of

the complaint, and a proposed form of default judgment. Local

Rule 55.2(c) requires that all papers submitted in connection with

a motion for a default judgment be mailed to the “last known

residence” of an individual defendant or “last known business

address” of a corporate defendant.

Plaintiffs’ Motion for Default Judgment is supported by an

affirmation that declares Melrose and Mr. Gualpa were served with

all required documents at their “last known address,” which was 9

Melrose Street, Elmont, NY 11003 for both Defendants. (See Mizrahi

Decl. Ex. G.) Accordingly, Plaintiffs have met the requirements

of Local Rule 55.2(c).

III. Liability

Having assured itself that the jurisdictional and procedural

prerequisites to enter a default judgment are met, except as to

Plaintiffs’ claims for NYLL wage statement and wage notice

violations, the Court now must assess whether Plaintiffs’ well-

pleaded factual allegations establish Defendants’ liability as a

matter of law. As a threshold matter, Plaintiffs must show an

employer-employee relationship between themselves and Defendants

to prevail on their FLSA and NYLL claims. Chang v. Loui Amsterdam,

Inc., No. 1:19-cv-3056(RER), 2022 WL 4586100, at *5 (E.D.N.Y.

Sept. 29, 2022). Because district courts in the Second Circuit

interpret “employer” under the NYLL coextensively with the

definition the FLSA uses, the Court analyzes this threshold issue

based on the FLSA’s definitions. See Sanchez v. Clipper Realty,

Inc., 638 F. Supp. 3d 357, 372 (S.D.N.Y. 2022).

The FLSA defines “employee” as “any individual employed by an

employer,” 29 U.S.C. § 203(e)(1), and “employer” as “any person

acting directly or indirectly in the interest of an employer in

relation to an employee,” 29 U.S.C. § 203(d). The Second Circuit

uses a four-factor test based on “economic reality” to determine

whether an employer-employee relationship exists. Irizarry v.

Catsimatidis, 722 F.3d 99, 104–05 (2d Cir. 2013). The test asks

whether the defendant (1) had the power to hire and fire the

plaintiff, (2) supervised and controlled the plaintiff’s work

schedules or conditions of employment, (3) determined the

plaintiff’s rate and method of payment, and (4) maintained

employment records. Id. at 105. The court must consider the

totality of the circumstances, and no single factor is dispositive.

Id. at 106.

Here, Plaintiffs have shown that they had an employer-

employee relationship with Defendants. Each plaintiff alleges

that they were employed by Defendants’ construction business.

(Compl. ¶¶ 6–7, 9–10.) Plaintiffs allege that Defendants had the

power to hire and fire employees. (Id. ¶¶ 20, 30.) Plaintiffs

further allege that Mr. Gualpa, as the construction business’s

owner and manager, set Plaintiffs’ work schedules and that each of

the Defendants controlled the conditions of Plaintiffs’

employment. (Id. ¶¶ 20, 25, 30.) Plaintiffs also allege that

each defendant determined Plaintiffs’ rate and method of payment.

(Id. ¶ 30.) Finally, Plaintiffs allege that Mr. Gualpa, as the

construction business’s owner and manager, maintained employment

records. (Id. ¶ 20.) Thus, all four factors support a finding

that as a matter of economic reality, each plaintiff had an

employer-employee relationship with each defendant. By the same

token, the Court finds that Defendants are jointly and severally

liable for the FLSA and NYLL violations discussed below. See

Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 685–66

(S.D.N.Y. 2011) (finding allegations that defendant was an “owner,

partner, or manager” of plaintiff’s corporate employer was enough

to qualify him as an FLSA and NYLL employer and to impose joint

and several liability with corporate defendant).

Plaintiffs have also shown that they are not exempt from the

FLSA. The FLSA does not extend minimum wage or overtime

protections to an employee in a “bona fide executive,

administrative, or professional capacity . . . or in the capacity

of outside salesman.” 29 U.S.C. § 213(a)(1). How the plaintiff

spent his or her time is a factual question, but whether the

employee’s activities trigger one of the FLSA’s exemptions is a

legal one. Isett v. Aetna Life Ins. Co., 947 F.3d 122, 129–30

(2d Cir. 2020). Here, Plaintiffs allege that both Mr. Proano and

Ms. Delgado worked at Defendants’ construction company as “manual

laborer[s].” (Compl. ¶¶ 6, 9.) Absent additional facts, work as

a manual laborer alone does not exempt Plaintiffs from the FLSA’s

minimum wage or overtime protections as a matter of law.

Finally, Plaintiffs have satisfied the FLSA’s interstate

commerce requirement.4 The FLSA requires that the plaintiff be

either (1) engaged in commerce or the production of goods for

commerce or (2) employed in an enterprise engaged in commerce or

in the production of goods for commerce. 29 U.S.C. §§ 206, 207(a).

An employer is considered an “enterprise engaged in commerce” if

it has an annual gross sales volume of at least $500,000 and

employees who handle, sell, or otherwise work on goods or materials

that have been moving in, or produced for commerce by any person.

29 U.S.C. § 203(s)(1)(A).

Here, Plaintiffs allege the statutory requirements without

providing any specific examples. (See Compl. ¶ 14.) Still, based

on Plaintiffs’ allegations that Defendants’ construction company

has an annual gross sales volume of at least $500,000 and has

employees “engaged in commerce or in the production of goods and

services for commerce and handling, selling, or otherwise working

4 The NYLL lacks this requirement. Gangadharan v. GNS Goods & Servs., No. 1:18-

cv-7342 (KAM), 2022 WL 824135, at *11 (E.D.N.Y. Mar. 18, 2022).

on goods or materials that have been moved in or produced for

commerce by any person,” the Court can reasonably infer that at

least some of the equipment, goods, materials, and supplies used

by Defendants have moved or engaged in interstate or international

commerce. See Kilmchak v. Cardona, Inc., No. 2:09-cv-4311 (MKB),

2014 WL 3778964, at *5 (E.D.N.Y. July 31, 2014) (noting that

several courts in this district have inferred FLSA enterprise

coverage based on the nature of the defendant’s business

notwithstanding such pleading deficiencies).

Finding these threshold requirements satisfied, the Court

proceeds to consider whether Defendants’ alleged conduct violated

the FLSA and NYLL.

A. Minimum Wage

The FLSA and NYLL each require an employer to pay an employee

at least a minimum hourly rate for each hour the employee works.

From January 2020 through December 2021, the federal minimum wage

was $7.25 per hour, 29 U.S.C. § 206(a)(1)(C), and the New York

City minimum wage was $15 per hour for both large and small

employers, N.Y. Lab. Law § 652(a).

The plaintiff has the burden to prove that he or she was

improperly compensated for the work he or she performed. Kuebel

v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011). If the

defendant has defaulted, however, the court may presume that the

plaintiff’s recollection and estimates of the hours he or she

worked are accurate. Cabrera v. Canela, 412 F. Supp. 3d 167, 181

(E.D.N.Y. 2019). An employer has a non-delegable duty to maintain

accurate records of its employees’ hours. Kuebel, 643 F.3d at

363. Thus, it would be unfair to require more substantial proof

when the defendant is not participating in the case and the

plaintiff lacks the ability to obtain the defendant’s employment

records through discovery. See Cabrera, 412 F. Supp. 3d at 181.

Moreover, Plaintiffs here state that they were not required to

keep track of their time and that they are unaware of Defendants

having used any time tracking device that would have reflected

their actual hours worked, (see Proano Aff. ¶ 11; Delgado Aff.

¶ 11), so more precise evidence may not even exist in this case.

Here, Defendants appear to have complied with the FLSA and

NYLL minimum wage mandates when they paid Mr. Proano $30 per hour

and Ms. Delgado $15 per hour for all hours worked before December

1, 2021. (See Delgado Aff. ¶¶ 8–9; Proano Aff. ¶¶ 8–9.)

Defendants fell out of compliance, however, when they failed to

pay Plaintiffs at all for the month of December 2021. (See Delgado

Aff. ¶ 9; Proano Aff. ¶ 9.) Plaintiffs allege that they worked

eleven to twelve hours per day, five to six days per week, for a

total of 55 to 72 hours each week in December 2021. (Compl. ¶¶ 33,

38.) As such, Defendants failed to comply with minimum wage

mandates when they failed to pay both Mr. Proano and Ms. Delgado

any wages for the month of December 2021. Thus, the Court finds

Defendants liable for violating the FLSA’s and NYLL’s minimum wage

provisions.

B. Overtime

The FLSA and the NYLL’s implementing regulations require an

employer to pay an employee an overtime premium of one and one-

half times the employee’s regular rate for each hour the employee

works above forty each week. 29 U.S.C. § 207(a); 12 N.Y.C.R.R. §§

142-2.2, 146-1.4. Like with the FLSA’s and NYLL’s minimum wage

mandates, the Court may presume the accuracy of Plaintiffs’

recollections and estimates of the hours they worked because

Defendants have defaulted. Cabrera, 412 F. Supp. 3d at 181.

Here, Plaintiffs allege that Defendants paid them either $15

or $30 per hour “for all hours worked” before December 1, 2021.

(Delgado Aff. ¶¶ 4, 7–9; Proano Aff. ¶¶ 7–9.) Plaintiffs also

allege that Defendants failed to pay any wages for their last month

of employment. (Delgado Aff. ¶ 9; Proano Aff. ¶ 9.) Plaintiffs

explicitly deny that Defendants ever paid them the required

overtime premium of one and one-half times their regular rates.

(Id. ¶¶ 41, 57, 67.) Thus, the Court finds Defendants liable for

violating the FLSA’s and NYLL’s overtime provisions.

C. Spread-of-Hours Pay

The NYLL’s implementing regulations require an employer to

pay an employee a “spread-of-hours” premium of one additional

hour’s pay at the basic minimum hourly rate for each workday that

lasts longer than ten hours. 12 N.Y.C.R.R. § 142-2.4. Here,

Plaintiffs allege that they each worked at least eleven hours per

day for each day they were employed by Defendants’ construction

company. (Compl. ¶¶ 33, 38.) They further allege that Defendants

paid Mr. Proano and Ms. Delgado $15 or $30 per hour, respectively,

or nothing at all during this period. (Delgado Aff. ¶¶ 7–9; Proano

Aff. ¶¶ 7–9.) They explicitly claim that Defendants never paid

them the required spread-of-hours premium. (Compl. ¶ 71.) Thus,

the Court finds Defendants liable for violating the NYLL’s spread-

of-hours provision.

D. Timeliness of Wages

Plaintiffs also claim that because they were underpaid each

week, they were accordingly not paid on a timely basis,

constituting a separate underpayment warranting an award of

liquidated damages in violation of Section 191 of the NYLL.

Plaintiffs do not allege that they were paid less frequently than

on a weekly basis but, rather, allege that they were underpaid

each week. (Compl. ¶ 83.) Plaintiffs state they worked as “manual

laborers” for Defendants’ construction company, (id. ¶¶ 6, 9), and

are “manual workers” under the NYLL, N.Y. Lab. Law § 190(4)

(defining the term manual worker as a “mechanic, workingman or

laborer”). Because Plaintiffs allege that they were underpaid

overtime on a weekly basis prior to December 1, 2021, and not paid

at all for the month of December 2021, the Court finds Defendants

liable for violating the NYLL’s timely wage payment requirements.

However, because the timely wage payment damages overlap entirely

with the overtime and minimum wage violations, as discussed infra,

no additional damages will be awarded.

IV. Relief

Because Plaintiffs have established Defendants’ liability as

to Plaintiffs’ minimum wage, overtime, spread-of-hours, and timely

wage payment claims, the Court must determine whether Plaintiffs

are entitled to the relief they request.

A. Collective Action Certification

Plaintiffs’ Complaint states that they seek to prosecute this

action as an FLSA “collective action.” (See Compl. ¶¶ 46–49,

pp. 12–13.) The FLSA authorizes an employee to sue on behalf of

him or herself and all other similarly situated employees.

29 U.S.C. § 216(b). To join in the action, other employees must

“opt in” by written consent. Id. If the plaintiff makes a factual

showing that he or she and the potential opt-in plaintiffs were

victims of a common unlawful policy or plan, the court

conditionally certifies the action as a FLSA collective action by

sending notice to potential plaintiffs who may be similarly

situated. Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010).

After those plaintiffs have opted in, the court determines whether

they are in fact similarly situated to the named plaintiff. Id.

Because Plaintiffs did not reiterate their collective action

certification request in their Motion for Default Judgment, the

Court considers the collective action abandoned. See, e.g.,

Galicia v. 63-68 Diner Corp., No. 2:13-cv-3689 (PKC), 2015 WL

1469279, at *1 (E.D.N.Y. Mar. 30, 2015). Additionally, in

situations where the plaintiff seeks to certify a FLSA collective

action and the defendant defaults, other courts in this circuit

have entered default judgments in favor of only the named

plaintiffs and have left the defendants the opportunity to defend

themselves against claims by future plaintiffs. See, e.g., Lopic

v. Mookyodong Yoojung Nakjie, Inc., No. 1:16-cv-4179 (KAM),

2017 WL 10845064, at *2 (E.D.N.Y. Sept. 30, 2017); Charvac v. M &

T Project Managers of N.Y., Inc., No. 1:12-cv-5637 (CBA), 2013 WL

6711485, at *3 (E.D.N.Y. Dec. 18, 2013). The Court will take that

track here. Thus, the Court’s decision applies only to Mr. Proano

and Ms. Delgado and not to any of Defendants’ other employees.

B. Damages

The measure of damages in a FLSA or NYLL case is the amount

the plaintiff should have been paid minus the amount the plaintiff

was actually paid. Ramos v. Guaba Deli Grocery Corp., No. 1:20-

cv-4904 (PAE), 2021 WL 5563714, at *9 (S.D.N.Y. Nov. 29, 2021).

The plaintiff may not recover double damages for the same injury

under both the FLSA and NYLL, though the plaintiff is entitled to

relief under whichever statute provides the greater measure of

damages. Ventura v. Putnam Gardens Parking Corp., No. 1:20-cv-

119 (JKG)(VF), 2023 WL 3603589, at *3 (S.D.N.Y. Mar. 20, 2023),

R&R adopted by 2023 WL 3601649 (S.D.N.Y. May 23, 2023). As

discussed previously, because Plaintiffs’ timely wage payment

claims overlap entirely with their minimum wage and overtime

claims, the Court considers them to be the same injury, and does

not award separate damages for timely wage payment.

Both the FLSA and NYLL generally provide for double (or

“liquidated”) damages unless the defendant proves a good faith

basis to have believed it was complying with the law. See

29 U.S.C. § 260; N.Y. Lab. Law § 663(1). The plaintiff may not

recover “duplicative” liquidated damages (i.e., under both the

FLSA and NYLL) for the same course of conduct. Rana v. Islam,

887 F.3d 118, 123 (2d Cir. 2018). Here, Plaintiffs repeatedly

allege that Defendants’ misconduct was willful, and that

Defendants were not acting in good faith. (See Compl. ¶¶ 51-52,

58-59, 61-62, 68-69, 71-73.) Moreover, Defendants have not

answered or otherwise appeared in this action, so they have

forfeited their opportunity to prove good faith. Chen v. Oceanica

Chinese Rest., No. 1:13-cv-4623 (NGG), 2023 WL 2583856, at *16

(E.D.N.Y. Mar. 21, 2023). Thus, the Court finds Plaintiffs

entitled to liquidated damages for Defendants’ violations of the

FLSA and NYLL.

1. Ms. Delgado

Under the FLSA and NYLL, Ms. Delgado should have been paid

her regular rate of pay, $30 per hour, for the first 40 hours she

worked each week and time and one-half pay, $45 per hour,

thereafter, plus another $15 per day as a spread-of-hours premium.

From January 1, 2020, through December 31, 2021, Ms. Delgado worked

between 55 to 72 hours per week, every week, for an average of

63.5 hours each week for 104 weeks. (See Mizrahi Decl. Ex A. at

3; Delgado Aff. at ¶ 7.) Ms. Delgado estimates that she worked

five to six days per week. (Delgado Aff. at ¶ 7.) Thus, for each

of those 104 weeks, Defendants should have paid Ms. Delgado a total

of at least $2,332.50, which represents ($30 per hour x 40 hours

of regular time per week) + ($45 per hour x 23.5 hours of overtime

per week) + ($15 per day in spread-of-hours premium x 5 days per

week)5. Computing the total for the entire two-year period worked

(104 weeks), Ms. Delgado should have been paid at least $242,580

during the relevant timeframe.

Defendants actually paid Ms. Delgado $30 per hour for each

hour of work for the 99 weeks and 6 days (rounded up to 100 weeks)

spanning January 1, 2020, through November 30, 2021, for a total

of $190,500 ($30 per hour x 63.5 hours per week x 100 weeks).

5 Ms. Delgado’s calculation of pay due provided in the supporting declaration

does not include the spread-of-hours premium, so the Court has calculated it

assuming five days worked above 10 hours each week, based on Ms. Delgado’s

affirmation. (See Mizrahi Decl. Ex A. at 3; Delgado Aff. at ¶ 7.)

Defendants paid Ms. Delgado nothing for her last four weeks of

employment, from December 1, 2021, through December 31, 2021.

Adding these figures together, Defendants actually paid Ms.

Delgado $190,500 during the relevant period.

Defendants are liable to Ms. Delgado in the amount of $52,080

(the difference between the $242,580 owed and $190,500 actually

paid) for their minimum wage, overtime, spread-of-hours pay

violations.6 With liquidated damages, Ms. Delgado’s total damages

are $104,160.

2. Mr. Proano

Under the FLSA and NYLL, Mr. Proano should have been paid at

least $15 per hour for the first 40 hours he worked each week and

$22.50 per hour thereafter, plus another $15 per day as a spread-

of-hours premium. From September 1, 2021, through December 31,

2021, Mr. Proano worked between 55 to 72 hours per week, every

week, for an average of 63.5 hours each week for 17 weeks. (See

Mizrahi Decl. Ex A. at 4; Proano Aff. at ¶ 7.) Mr. Proano estimates

that he worked five to six days per week. (Proano Aff. at ¶ 7.)

Thus, for each of those 17 weeks, Defendants should have paid

Mr. Proano a total of at least $1,203.75, which represents ($15

per hour x 40 hours of regular time per week) + ($22.50 per hour

6 The Court conducted this calculation independently, noting that the

spreadsheet in Mr. Mizrahi’s declaration does not correctly add together the

underpayment to Ms. Delgado, resulting in counsel’s incorrect calculation of

damages. (See Mizrahi Decl. Ex. A. at 4.)

x 23.5 hours of overtime per week) + ($15 per day in spread-of-

hours premium x 5 days per week)7. Computing the total for the

entire 17-week period, Mr. Proano should have been paid at least

$20,463.75 during the relevant timeframe.

Defendants actually paid Mr. Proano $15 per hour for each

hour of work for the 12 weeks and 6 days (rounded up to 13 weeks)

between September 1, 2021, through November 30, 2021, for a total

of $12,382.50 ($15 per hour x 63.5 hours per week x 13 weeks).

Defendants paid Mr. Proano nothing for his last four weeks of

employment, from December 1, 2021, through December 31, 2021.

Adding these figures together, Defendants actually paid Mr. Proano

$12,382.50 during the relevant period.

Defendants are liable to Mr. Proano in the amount of $8,081.25

(the difference between the $20,463.75 owed and $12,382.50

actually paid) for their minimum wage, overtime, spread-of-hours

pay violations.8 With liquidated damages, Mr. Proano’s total

damages are $16,162.50.

7 Mr. Proano’s calculation of pay due provided in the supporting declaration

does not include the spread-of-hours premium, so the Court has calculated it

assuming five days worked above 10 hours each week, based on Mr. Proano’s

affirmation. (See Mizrahi Decl. Ex A. at 4; Proano Aff. at ¶ 7.)

8 The Court conducted this calculation independently, noting that the

spreadsheet in Mr. Mizrahi’s declaration does not correctly add together the

underpayment from September to November with the December 2021 amount, resulting

in counsel’s incorrect calculation of damages. (See Mizrahi Decl. Ex. A. at

4.)

C. Pre-Judgment Interest

Though the FLSA does not permit awarding pre-judgment

interest in addition to liquidated damages, the NYLL does. Fermin

v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 48–49

(E.D.N.Y. 2015). To avoid giving the plaintiff a windfall,

however, courts award pre-judgment interest only on compensatory

damages and not on any liquidated damages award. Id. at 49.

Courts calculate pre-judgment interest on a NYLL award at a rate

of 9% per year. N.Y. C.P.L.R. § 5004. For cases where damages

were incurred at various times, the court may compute interest

either upon each item from the date it was incurred or upon all

the damages from a single reasonable intermediate date.

N.Y. C.P.L.R. § 5001(b). Courts have discretion to determine a

reasonable intermediate date from which to award pre-judgment

interest, and the median date between the earliest and latest that

the plaintiff’s NYLL claim accrued is considered a reasonable

single intermediate date. Elghourab v. Vista JFK, LLC, No. 1:17-

cv-911 (ARR), 2019 WL 2431905, at *12 (E.D.N.Y. June 11, 2019).

Here, for ease of calculation and transparency, the Court

sets December 31, 2020, as the intermediate date for Ms. Delgado

because that date marks the halfway point in her employment with

Defendants during the relevant period. Defendants owe Ms. Delgado

daily pre-judgment interest in the amount of $12.84 (($52,080 x

0.09 annual rate) / 365 days), starting from the December 31, 2020,

midpoint through the date the Clerk of Court enters judgment in

this case. The number of days between December 31, 2020, and the

date of entry of judgment, November 17, 2023, is 1,051.

Accordingly, the prejudgment interest owed to Ms. Delgado is

$13,494.84 (1,051 days x $12.84).

Similarly, the Court sets October 31, 2021, as the

intermediate date for Mr. Proano because that date marks the

halfway point in his employment with Defendants during the relevant

period. Defendants owe Mr. Proano daily pre-judgment interest in

the amount of $1.99 (($8,081.25 x 0.09 annual rate) / 365 days),

starting from the October 31, 2021, midpoint through the date the

Clerk enters judgment in this case. The number of days between

October 31, 2021, and the date of entry of judgment, November 17,

2023, is 747. Accordingly, the prejudgment interest owed to Mr.

Proano is $1,486.53 (747 days x $1.99).

D. Attorneys’ Fees and Costs

The FLSA and NYLL each authorize an award of “reasonable”

attorneys’ fees. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). The

standard method for determining reasonable attorneys’ fees is “the

number of hours reasonably expended on the litigation multiplied

by a reasonable hourly rate,” or a “presumptively reasonable fee.”

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Arbor Hill

Concerned Citizens Neighborhood Ass'n v. Cty. Of Albany and Albany

Cty. Bd. Of Elections, 522 F.3d 182, 188-90 (2d Cir. 2007). “The

party seeking reimbursement of attorney's fees bears the burden of

proving the reasonableness and the necessity of the hours spent

and rates charged.” Fermin v. Las Delicias Peruanas Rest., Inc.,

93 F. Supp. 3d 19, 51 (E.D.N.Y. 2015). The applicant also must

provide contemporaneous records indicating “for each attorney, the

date, the hours expended, and the nature of the work done.” New

York State Ass'n for Retarded Child., Inc. v. Carey, 711 F.2d 1136,

1148 (2d Cir. 1983). The court may look to fees awarded in recent

FLSA and NYLL cases in the Eastern District of New York to

determine the reasonableness of a fee request. Fermin,

93 F. Supp. 3d at 52.

Here, Plaintiffs have provided a spreadsheet showing the

number of hours that each attorney and staff member expended

litigating this case along with each person’s hourly rate. (See

Mizrahi Decl. Ex. B.) This spreadsheet shows that associate Jason

Mizrahi completed 22 hours of work on this case and that paralegal

Alexis Abrego completed 1.95 hours. The Court omits the three

one-hour entries for process servers and filing fees, which are

listed under Ms. Abrego’s name but appear to reflect costs to the

firm and not hours of work she billed at her hourly rate.

Plaintiffs request hourly rates of $350 for Mr. Mizrahi and $50

for Ms. Abrego. (Mem. at 13.) Plaintiffs also request an hourly

rate of $450 for partner Joshua Levin-Epstein, (id.), but their

spreadsheet does not reflect that he did any work on this case and

he is not entitled to fees, (see Mizrahi Decl. Ex. B).

The Court calculates Plaintiffs’ total fee request at

$7,797.50, which represents ($350 hourly rate * 22 hours) + ($50

hourly rate x 1.95 hours). Puzzlingly, Plaintiffs’ motion requests

$7,797.50 “[a]pplying the percentage method,” despite having spent

two pages discussing fees under the “lodestar” method and attaching

a spreadsheet to support the lodestar calculation. (Mem. at 12-

13.) The percentage method is an alternative to the lodestar

method that calculates attorneys’ fees as a percentage of the

plaintiff’s recovery. McDaniel v. County of Schenectady, 595 F.3d

411, 414 (2d Cir. 2010). Plaintiffs do not state what percentage

of the recovery they seek in attorneys’ fees and, because the

amount they request is identical to the lodestar method

calculation, the Court assumes that this statement was made in

error and will instead apply the lodestar method.

The Court finds 23.95 hours a reasonable amount of time to

spend litigating a FLSA and NYLL case resulting a default judgment

in this district. See Sevilla v. House of Salads One LLC,

1:20-cv-6072 (PKC), 2022 WL 954740, at *13 (E.D.N.Y. Mar. 30,

2022). (collecting cases). Mr. Mizrahi’s $350 hourly rate,

however, marks the high end of what courts in this district

generally award for work by senior associates in wage cases. See

Jones v. Pawar Bros. Corp., No. 1:17-cv-3018 (PKC), 2023 WL

6214213, at *8 (E.D.N.Y. Sept. 25, 2023) (describing the hourly

rates of senior associates in this District as ranging from $200-

$325). The Court observes that other courts in this district

recently have approved Mr. Mizrahi’s and Ms. Abrego’s hourly

rates, but Mr. Mizrahi’s rate generally has been approved at $325

rather than the $350 that Plaintiffs seek in this case. See, e.g.,

Sims v. Crown Waste Corp., No. 1:22-cv-6047 (BMC), 2023 WL 363070,

at *2 (E.D.N.Y. Jan. 23, 2023). Moreover, Plaintiffs’ counsel

made several errors that needlessly complicated the Court’s

resolution of an otherwise routine default judgment motion.9 See

Gesualdi v. Stallone Testing Labs., Inc., No. 1:10-cv-646 (ENV),

2011 WL 2940606, at *1 (E.D.N.Y. July 19, 2011) (explaining that

filing, drafting, and calculation errors that waste judicial

resources may warrant a fee reduction). Thus, the Court reduces

Mr. Mizrahi’s hourly rate to $250 per hour and awards $5,597.50 in

attorney’s fees, which represents Plaintiffs’ lodestar calculation

with a reduced hourly rate.

The Court awards $584.60 in costs, which include process

server charges of $111.30 and $71.30 plus $402 in filing fees.

9 Errors included numerous typographical errors mixing up the Plaintiffs, see

supra n.1, n.2; submitting an erroneous request for a certificate of default

against Mr. Gualpa prior to noting service on the docket, see supra p. 6,

attaching a damages spreadsheet that fails to include a spread-of-hours

calculation and erroneously undercalculates damages for Plaintiffs, see supra

n.5-8, and making an unsupported request for attorney’s fees based on the

percentage method, see supra p. 33. Attorney errors pose special problems in

the default judgment context, where courts cannot rely on the adversarial

process to reveal them.

See 29 U.S.C. § 216(b); N.Y. Lab. Law. § 198(4). Plaintiffs

request the same amount, (Mem. at 14), which is supported by their

documentation, (see Mizrahi Decl. Ex. C).

E. Post-Judgment Interest

Plaintiffs are entitled to post-judgment interest as of

right. 28 U.S.C. § 1961. Thus, post-judgment interest shall

accrue from entry of judgment at the federal statutory rate until

the judgment is paid in full.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motion for Default

Judgment is granted in part and denied in part.

Plaintiff Delgado is entitled to the principal balance of

$104,160 and pre-judgment interest at the daily rate of $12.84

from December 31, 2020, to the date of entry of judgment, November

17, 2023, totaling $13,494.84, as well as post-judgment interest

at the rate set forth in 28 U.S. § 1961(a), from the date of the

entry of judgment until the date of payment in full.

Plaintiff Proano is entitled to the principal balance of

$16,162.50 and pre-judgment interest at the daily rate of $1.99

from October 31, 2021, to the date of entry of judgment, November

17, 2023, totaling $1,486.53, as well as post-judgment interest at

the rate set forth in 28 U.S. § 1961(a), from the date of the entry

of judgment until the date of payment in full.

Plaintiffs are entitled to attorneys’ fees in the amount of

$5,597.50 and costs in the amount of $584.60.

The Court denies Plaintiffs’ request to certify this action

as a FLSA collective action.

The Court dismisses without prejudice Plaintiffs’ NYLL claims

for wage notice and wage statement violations.

The Clerk of Court is respectfully directed to enter judgment

in accordance with this Memorandum and Order. Plaintiff is ordered

to serve a copy of this Memorandum and Order and the Judgment on

all defendants and file declarations of service for each defendant

within two days after the Clerk of Court enters the Judgment.

SO ORDERED. b =

f? a,

Dated: November 17, 2023 ) □□□ ow ewe

Brooklyn, New York

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

36