Zabrodin v. Silk 222, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAMIAN ZABRODIN and IMRAN GASHIMLI,

on behalf of themselves and others

similarly situated in the proposed

FLSA Collective Action,

Plaintiffs, MEMORANDUM & ORDER

- against – No. 1:22-cv-7064(KAM)(MMH)

SILK 222, INC. and KHURSHED

KURBANOV,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs Damian Zabrodin and Imran Gashimli brought this

action against Defendants Silk 222, Inc. (“Silk 222”) and

Khurshed Kurbanov, raising various claims under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201–19, and New York Labor

Law (“NYLL”), N.Y. Lab. Law §§ 1–1200, (Compl., ECF No. 1).

Plaintiffs now move the Court to enter a default judgment

against Defendants for failing to timely answer or otherwise

respond to the Complaint. (Notice of Mot. for Default J., ECF

No. 19.) For the reasons below, the Court grants Plaintiffs’

motion in part and denies it in part.

BACKGROUND

The following facts are taken from Plaintiffs’ Complaint,

Notice of Motion for Default Judgment, supporting memorandum,

and supporting declaration and affidavits. (See Compl.; Mot.

for Default J.; Mem. in Supp. of Mot. for Default J. (“Mem.”),

ECF No. 20; Decl. of Jason Mizrahi (“Mizrahi Decl.”), July 10,

2023, ECF No. 21; Aff. of Damian Zabrodin (“Zabrodin Aff.”), ECF

No. 22; Aff. of Imran Gashimli (“Gashimli Aff.”), ECF No. 23;

Decl. of Jason Mizrahi (“Am. Mizrahi Decl.”), Oct. 30, 2023, ECF

No. 24; Decl. of Jason Mizrahi (“2d Am. Mizrahi Decl.”),

Nov. 10, 2023, ECF No 25.)

I. Factual Background

Silk 222 is a New York corporation with its principal place

of business in Brooklyn, New York. (Compl. ¶ 12.) It has

employees engaged in commerce and an annual gross sales volume

of at least $500,000. (Id. ¶ 13.) Kurbanov has “operational

control over,” has an ownership interest in, and “controls

significant functions of” Silk 222. (Id. ¶ 24.) Defendants

“own, operate[,] and/or control” SILK Restaurant and Lounge

(“Silk Restaurant”) in Brooklyn, New York, where Zabrodin worked

as a server from June 2022 through October 2022 and Gashimli

worked as a bartender from July 2022 through September 2022.

(Id. ¶¶ 6–7, 9–10, 23; see 2d Am. Mizrahi Decl. Ex. A.)

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. ¶¶ 17, 21, 31.) They had “substantial control over”

Plaintiffs’ working conditions and the policies and practices

regarding Plaintiffs’ employment and compensation. (Id. ¶ 26.)

Kurbanov set employees’ schedules and maintained employee

records. (Id. ¶ 21.) 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 advice

that would have reflected the actual number of hours they

worked. (Zabrodin Aff. ¶ 14; Gashimli Aff. ¶ 12.)

A. Zabrodin

From July 1, 2022, through September 30, 2022, Zabrodin

worked at Silk Restaurant twelve hours per day Friday through

Monday for a total of 48 hours per week. (Compl. ¶ 33; see 2d

Am. Mizrahi Decl. Ex. A.)1 From October 1, 2022, through

October 31, 2022, he worked at Silk Restaurant twelve hours per

day Saturday and Sunday for a total of 24 hours per week.

(Compl. ¶ 34; see 2d Am. Mizrahi Decl. Ex. A.) From June 1,

1 The Complaint does not specify which days of the week Plaintiffs worked.

Because the precise days of the week on which each plaintiff worked are

material to Plaintiffs’ damages calculation, the Court relies on Plaintiffs’

damages spreadsheet, which identifies the number of hours each plaintiff

worked for each day during the relevant period. (See 2d Am. Mizrahi Decl.

Ex. A.)

2022, through July 15, 2022, Defendants paid Zabrodin $15 per

hour for all hours worked. (Compl. ¶ 35; see 2d Am. Mizrahi

Decl. Ex. A.) From July 16, 2022, through October 31, 2022,

Defendants paid him $15 per hour for all hours worked on

weekdays and a flat daily salary of $50 per day on weekends.

(Compl. ¶¶ 36–37; see 2d Am. Mizrahi Decl. Ex. A.) Defendants

paid him no wages for his last three weeks of employment.

(Compl. ¶ 38; see 2d Am. Mizrahi Decl. Ex. A.)2

B. Gashimli

From July 1, 2022, through September 30, 2022, Gashimli

worked Friday through Tuesday, ten hours per day on weekdays and

twelve hours per day on weekends, for a total of 54 hours per

week. (Compl. ¶ 41; see 2d Am. Mizrahi Decl. Ex. A.) From

July 1, 2022, through July 15, 2022, Defendants paid him $15 per

hour for all hours worked. (Compl. ¶ 42; see 2d Am. Mizrahi

Decl. Ex. A.) From July 16, 2022, through September 30, 2022,

Defendants paid Gashimli $15 per hour for all hours worked on

weekdays and a flat daily salary of $50 per day on weekends.

(Gashimli Aff. ¶¶ 9–10;3 see 2d Am. Mizrahi Decl. Ex. A.)

Defendants required Plaintiffs to distribute their tips to

non-tipped managers at Silk Restaurant, including to Kurbanov.

2 Plaintiffs’ damages spreadsheet suggests he was paid during these weeks,

(see 2d Am. Mizrahi Decl. Ex. A), but the Court credits paragraph 38 of the

Complaint for reasons explained below, see infra p. 25.

3 The Court relies on Gashimli’s declaration for these facts because

paragraphs 43 and 44 of the Complaint erroneously refer to Zabrodin.

(Compl. ¶ 48.) They did not make available to Plaintiffs a

daily log of tips collected by each employee, a list of

occupations deemed eligible for tip sharing, the shares of tips

that each occupation was scheduled to receive, or the amount

each employee received from the tip share by date. (Id. ¶ 52.)

Plaintiffs estimate that Defendants unlawfully deducted an

average of $100 in tips from each of them per day. (Mem. 14;

see 2d Am. Mizrahi Decl. Ex. A.)

Defendants did not “post in a conspicuous place” Department

of Labor notices about wage and hour laws, tip appropriations,

or “illegal deduction provisions.” (Compl. ¶ 53.) Defendants

also did not provide Plaintiffs wage statements in accordance

with Section 195(3) of the NYLL. (Id. ¶ 55.) Finally,

Defendants did not give Plaintiffs notice of their rates of pay,

Silk Restaurant’s regular pay day, or “such other information”

required by Section 195(1) of the NYLL. (Id. ¶ 56.)

II. Procedural Background

Plaintiffs commenced this action against Defendants on

November 20, 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. ¶¶ 62–

81.) The next four counts allege violations of the NYLL’s

spread-of-hours pay, wage notice, wage statement, and tip

regulations. (See id. ¶¶ 82–98.) The last count alleges that

Defendants violated the FLSA by deducting Plaintiffs’ wages for

breaks that Plaintiffs never received. (See id. ¶¶ 99–104.)

Plaintiffs seek certification of this action as a FLSA

collective action, declaratory relief, damages, pre-judgment and

post-judgment interest, attorneys’ fees, and costs. (See id.

pp. 15–17.)

On November 21, 2022, the Clerk of Court issued a Summons

to each defendant at 222 Avenue U, Brooklyn, New York 11223.

(ECF No. 6.) On December 6, 2022, Plaintiffs filed an affidavit

stating that the Summons and Complaint had been served on Silk

222 through the New York Secretary of State on November 28,

2022. (ECF No. 9.) On February 23, 2023, Magistrate Judge

Henry entered an order noting that Plaintiffs had not yet served

Kurbanov and ordering Plaintiffs to do so by March 9, 2023. On

March 9, 2023, Plaintiffs filed an affidavit representing that

the Summons and Complaint had been served on Kurbanov through

personal service on his colleague, Murad Khadirov, at 222 Avenue

U, Brooklyn, New York 11223 on March 9, 2023. (ECF No. 10.)

Also on March 9, 2023, Plaintiffs filed a request for a

certificate of default against Silk 222 based on its failure to

answer or otherwise respond to the Complaint by December 19,

2022. (ECF No. 12.) The Clerk of Court entered Silk 222’s

default on March 14, 2023. (ECF No. 14.) On March 31, 2023,

Plaintiffs filed a request for a certificate of default against

Kurbanov based on his failure to answer or otherwise respond to

the Complaint by March 30, 2023. (ECF No. 15.) The Clerk of

Court entered Kurbanov’s default on April 5, 2023. (ECF

No. 16.)

Magistrate Judge Henry entered an order on April 10, 2023,

noting that the Clerk of Court had issued certificates of

default against both defendants and ordering Plaintiffs to file

any motion for a default judgment by June 9, 2023. Plaintiffs

on May 26, 2023, moved Magistrate Judge Henry for an extension

of time through July 9, 2023, to file their motion, (ECF

No. 18), which she granted on June 5, 2023. Plaintiffs filed

their motion and supporting materials on July 10, 2023, (See

Mot. for Default J.; Mem.; Mizrahi Decl.; Zabrodin Aff.;

Gashimli Aff.), one day late.4

The Court issued an order on October 23, 2023, noting that

Plaintiffs mistakenly attached to their attorney declaration the

certificates of default and complaint from another case and that

Plaintiffs’ affirmation of service lacked certain details

required by Local Rule 55.2(c). The Court ordered Plaintiffs to

file corrected versions of these materials and to file proof

4 The Court admonishes Plaintiffs for ignoring the deadline to file a motion

that seeks to hold Defendants accountable for ignoring the deadline to

respond to the Complaint. Still, the Court exercises its discretion to

excuse the late filing. The delay was minimal and caused no prejudice

because Defendants still have not appeared or otherwise participated in this

case.

that Plaintiffs mailed their corrected motion papers to

Defendants, which Plaintiffs did on October 30, 2023. (See Am.

Mizrahi Decl.) The Court issued another order on November 6,

2023, noting that Plaintiffs’ attorney declaration remained

deficient because it bore the wrong caption and attached billing

records and invoices from a different case. The Court ordered

Plaintiffs to file another corrected attorney declaration and

mail their corrected motion papers to Defendants, which

Plaintiffs did on November 10, 2023. (See 2d Am. Mizrahi Decl.)

LEGAL STANDARD

Federal Rule of Civil Procedure 55 governs the two-step

process by which a plaintiff obtains a default judgment against

a defendant. 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.

Fed. R. Civ. P. 55(a). Then, the plaintiff may move the court

to enter a default judgment against the defendant.

Fed. R. Civ. P. 55(b). 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)(ARL),

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)(CLP), 2023 WL 5703698, at *3 (E.D.N.Y.

Sept. 5, 2023).

When evaluating the defendant’s liability, the court

accepts as true all well-pleaded allegations in the complaint.

Vera v. Banco Bilbao Vizcaya Argentaria, S.A., 946 F.3d 120, 135

(2d Cir. 2019). Still, the court must 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. Newman v. W. Bar &

Lounge, Inc., No. 1:20-cv-1141(KAM)(RER), 2021 WL 2401176, at *3

(E.D.N.Y. June 11, 2021). 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. Id.

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)(CLP), 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 undergirding the

first, second, and ninth counts in Plaintiffs’ Complaint. (See

Compl. ¶¶ 62–71, 99–104.) 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 these as reasons

why subject-matter jurisdiction may not exist even where the

complaint contains claims technically arising under federal

law). This action thus arises under the laws of the United

States, which gives the Court 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 the

same violations under the FLSA. (See Compl. ¶¶ 62–81.)

Plaintiffs’ fifth through eighth claims, which allege violations

of the NYLL’s spread-of-hours pay, wage notice, wage statement,

and tip regulations under the NYLL, (see id. ¶¶ 82–98), 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

[Plaintiffs] 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)(KHP), 2019 WL 4392955, at *2

(S.D.N.Y. Sept. 12, 2019).

The Court ultimately lacks subject-matter jurisdiction

over, and dismisses without prejudice, Plaintiffs’ wage notice

and wage statement claims under the NYLL,5 (see Compl. ¶¶ 82–92),

however, because Plaintiffs lack standing to pursue those claims

5 Though Plaintiffs include these NYLL claims in their Complaint, their motion

does not discuss them, nor does it appear to seek any relief based on them.

(See Mem. 17 (requesting damages in the amount of “unpaid minimum wages,

overtime wages, [and] unlawfully deducted wages”).) Plaintiffs’ supporting

affidavits, however, continue to discuss these claims. (See Zabrodin Aff.

¶ 23; Gashimli Aff. ¶ 21.) The Court thus addresses Plaintiffs’ wage

statement and wage notice claims to avoid any doubt that it has resolved

Plaintiffs’ entire motion.

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 allege facts linking 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.

¶¶ 55–56, 86–92.) Plaintiffs’ supporting affidavits elaborate

that “Defendants’ failure to provide accurate wage notices and

accurate wage statements denied [them their] statutory right to

receive true and accurate information about the nature of

[their] employment and related compensation policies.” (See

Zabrodin Aff. ¶ 23; Gashimli Aff. ¶ 21.) Without some tangible

downstream harm flowing from those statutory violations,

however, Plaintiffs have not shown that they 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

rules regarding standing, beyond bare allegations of 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)(RML), 2023 WL 2206568, at *6 (E.D.N.Y.

Feb. 24, 2023); Sevilla v. House of Salads One LLC,

No. 1:20-cv-6072(PKC)(CLP), 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 who 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.

Silk 222 is a New York corporation with its principal place

of business in Brooklyn, New York. (See Compl. ¶ 12.) Thus,

the Court may exercise general personal jurisdiction over

Silk 222 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 Kurbanov’s citizenship; however, they

allege that he transacted business within New York as the owner

and manager of Silk Restaurant, which is the conduct that gave

rise to Plaintiffs’ claims against him. (See Compl. ¶¶ 18–22,

24, 48.) 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 a 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 the Summons

and Complaint on each defendant. 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 Silk 222, 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 Silk 222

with notice of this action by their process server delivering

the Summons and Complaint to Nancy Doughtery, an agent in the

Office of the Secretary of State authorized to accept service

for Silk 222. (See ECF No. 9.) Thus, Plaintiffs properly

served Silk 222.

As to Kurbanov, 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 actual place of business of

the person to be served and (2) mailing the summons by first

class mail to the person to be served at his or her actual place

of business, 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 Kurbanov with notice of this action by their

process server delivering the Summons and Complaint to

Kurbanov’s actual place of business at 222 Avenue U, Brooklyn,

New York 11223, and leaving those documents with his colleague,

Khadirov, a person of suitable age and discretion. (See ECF

No. 10.) On the same day, Plaintiffs’ process server mailed a

copy of the Summons and Complaint by first class mail to the

same address. (Id.) Thus, Plaintiffs properly served Kurbanov.

B. Entry of Default

The Court next finds that the Clerk of Court properly

entered a certificate of default against each defendant.

Because Silk 222 was served on November 28, 2022, (see ECF

No. 9), it was required to answer or otherwise respond to the

Complaint by December 19, 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. 12.) The Clerk of

Court entered Silk 222’s default on March 14, 2023. (ECF

No. 14.)

Because Kurbanov was served on March 9, 2023, (see ECF

No. 10), he was required to answer or otherwise respond to the

Complaint by March 30, 2023. 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. 15.) The Clerk of

Court entered Kurbanov’s default on April 5, 2023.

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’ initial motion papers attached the certificates

of default and complaint from the wrong case. (See Mizrahi

Decl. Exs. D–E.) Additionally, Plaintiffs’ initial service

affidavit failed to specify that Plaintiffs mailed their motion

papers to Silk 222’s “last known business address” and to

Kurbanov’s “last known residence,” as Local Rule 55.2 requires,

and instead merely stated that Plaintiffs mailed their motion

papers “to the last known address” of each defendant, listed as

222 Avenue U, Brooklyn, New York for each defendant. (See

Mizrahi Decl. Ex. G.)

Plaintiffs corrected these mistakes after the Court entered

an order on October 23, 2023, calling attention to them. (See

Am. Mizrahi Decl.) The corrected submission affirmed that

Silk 222 was served at its “last known business address” and

that Kurbanov was served at his “last known residential

address,” which was changed from the one listed in Plaintiffs’

original submission. (See Am. Mizrahi Decl. Ex. G.) The

submission was still deficient, however, because Plaintiffs’

attorney declaration bore the wrong caption, referenced the

wrong case, and attached billing records and invoices from the

wrong case. (See Am. Mizrahi Decl. p. 1, ¶ 2, Exs. B–C.)

Plaintiffs corrected these mistakes after the Court entered yet

another order on November 6, 2023, calling attention to them.

(See 2d Am. Mizrahi Decl.)

The mailing requirement is mandatory because “experience

has shown that mailing notice of such an application is

conducive to both fairness and efficiency.” Committee Note,

Local Civ. R. 55.2. Local Rule 55.2 is strictly construed, and

failure to comply with it is a basis to deny a motion for a

default judgment. Dixon v. Int’l Unified Workforce, Inc.,

No. 1:18-cv-7191, 2020 WL 6140054, at *2 (E.D.N.Y. Sept. 1,

2020). Still, the Court excuses strict compliance in this case

because Plaintiffs ultimately mailed Defendants motion papers

that complied with the rules, even if it took them three

attempts. The third mailing, in which all documents are

properly captioned and from the correct case, provided fair

notice of the relief Plaintiffs seek to Defendants, who still

have not appeared or otherwise participated in this case. See

Guanglei Jiao v. Shang Shang Qian Inc., No. 1:18-cv-5624

(ARR)(VMS), 2020 WL 6370148, at *7 (E.D.N.Y. Aug. 11, 2020)

(explaining that courts may excuse minor noncompliance with

Local Rule 55.2 where the defendant still receives sufficient

notice and the noncompliance causes no prejudice), R&R adopted

by 2020 WL 5105063 (E.D.N.Y. Aug. 30, 2020).

III. Liability

Having assured itself that the jurisdictional and

procedural prerequisites to enter a default judgment are met,

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 the NYLL’s definition of “employer”

coextensively with the definition the FLSA uses, Jiang v. D&S

Wedding Planner Inc., No. 1:22-cv-643(MKB)(CLP), 2023 WL

6307813, at *5 (E.D.N.Y. Sept. 28, 2023), the Court analyzes

this threshold issue based on the FLSA’s definitions.

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 (2d Cir.

2013). The test asks whether the defendant (1) had the power to

hire and fire the employee, (2) supervised and controlled the

employee’s work schedules or conditions of employment,

(3) determined the employee’s rate and method of payment, and

(4) maintained employment records. Id. at 104–05. The court

must consider the totality of the circumstances, and no single

factor is dispositive. Id. at 105.

Here, Plaintiffs have shown that they had an employer-

employee relationship with Defendants. Each plaintiff alleges

that he was employed by Silk Restaurant. (Compl. ¶¶ 6–7, 9–10.)

Plaintiffs allege that each defendant had the power to hire and

fire employees at Silk Restaurant. (Id. ¶¶ 17, 21, 31.)

Plaintiffs further allege that Kurbanov, as Silk Restaurant’s

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

defendant controlled the conditions of Plaintiffs’ employment.

(Id. ¶¶ 16–17, 21, 26, 31, 49.) Plaintiffs also allege that

each defendant determined Plaintiffs’ rate and method of

payment. (Id. ¶¶ 16–17, 21, 31.) Finally, Plaintiffs allege

that Kurbanov, as Silk Restaurant’s owner and manager,

maintained Silk Restaurant’s employment records. (Id. ¶¶ 21,

49.) 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 Zabrodin worked at Silk Restaurant as a “server and general

worker,” and Gashimli worked there as a “bartender and general

worker.” (Compl. ¶¶ 6, 9.) As a matter of law, such duties do

not exempt employees from the FLSA’s minimum wage or overtime

protections. See Brito v. Marina’s Bakery Corp.,

No. 1:19-cv-828(KAM)(MMH), 2022 WL 875099, at *7 (E.D.N.Y.

Mar. 24, 2022) (collecting cases).

Finally, Plaintiffs have satisfied the FLSA’s interstate

commerce requirement. 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(a),

207(a).6 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

6 The NYLL lacks this requirement. Gangadharan v. GNS Goods & Servs.,

No. 1:18-cv-7342(KAM)(MMH), 2022 WL 824135, at *11 (E.D.N.Y. Mar. 18, 2022).

produced for commerce by any other person. 29 U.S.C.

§ 203(s)(1)(A).

Here, Plaintiffs allege the statutory requirements without

providing any specific examples. (See Compl. ¶ 13.) Still,

based on Plaintiffs’ allegations that Silk Restaurant 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 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 Silk Restaurant have moved or engaged in interstate or

international commerce. See Kilmchak v. Cardona, Inc.,

No. 2:09-cv-4311(MKB)(ARL), 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

and collecting cases).

Finding these threshold requirements met, 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 June 2022 through October 2022, 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(1)(a). Because Plaintiffs who bring claims under both the

FLSA and NYLL recover under the statute that provides the

greater measure of damages, the Court applies the higher NYLL

minimum wage. See Fermin v. Las Delicias Peruanas Rest., Inc.,

93 F. Supp. 3d 19, 49 (E.D.N.Y. 2015).

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

improperly compensated for the work he or she performed and the

defendant had actual or constructive knowledge of the work.

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 of improper compensation 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 Zabrodin Aff. ¶ 14; Gashimli Aff.

¶ 12), so more precise evidence may not even exist.

Here, Defendants appear to have complied with the FLSA and

NYLL minimum wage mandates when they paid Plaintiffs $15 per

hour for all hours worked before July 16, 2022, and when they

paid Plaintiffs $15 per hour for all hours worked on weekdays on

and after July 16, 2022. (See Compl. ¶¶ 35–36; Gashimli Aff.

¶¶ 8–9.) Defendants fell out of compliance, however, when they

paid Plaintiffs a flat daily rate of $50 on weekends after

July 16, 2022. (See Compl. ¶ 37; Gashimli Aff. ¶ 10.)

Plaintiffs allege that Zabrodin worked twelve hours per day and

that Gashimli worked ten hours per day on weekdays and twelve

hours per day on weekends. (Compl. ¶¶ 33–34, 41.) Thus, for

both Zabrodin and Gashimli, the $50 flat daily rate fell well

below the federal and state minimum wage.

Further, Defendants were certainly out of compliance when

they failed to pay Zabrodin any wages for his last three weeks

of employment, (See Compl. ¶ 38), though the Court acknowledges

that the Complaint is imprecisely drafted on this point. On one

hand, it states that “through and including October 2022,”

Defendants paid Zabrodin $15 per hour on weekdays and $50 per

day on weekends. (See Compl. ¶¶ 36–37; see also Mem. 2;

Zabrodin Aff. ¶¶ 10–11; 2d Am. Mizrahi Decl. Ex. A (Plaintiffs’

damages calculation, which appears to show that Zabrodin was

paid for time he worked during his last three weeks).) On the

other, it states that Zabrodin’s last day at Silk Restaurant was

October 31, 2022, and that he was not paid “any wages” for his

last three weeks of employment. (Compl. ¶¶ 7, 38; see also Mem.

2; Zabrodin Aff. ¶¶ 8, 12.) It cannot be true that Defendants

paid Zabrodin certain amounts “through and including October

2022” and that they did not pay him at all for the majority of

October 2022.

The Court gives Plaintiffs the benefit of the doubt and

infers that they intended paragraphs 36 and 37 of their

Complaint to describe conduct that occurred during the first

week of October 2022, not during the whole month. A contrary

inference would assume that Plaintiffs included a blatantly

false allegation in paragraph 38 by stating that Zabrodin was

not paid during his last three weeks at Silk Restaurant. There

is no evidence that was the case, and Plaintiffs’ Complaint is

signed by their attorney, so the Court will not assume

Plaintiffs’ counsel made false allegations. See Fed. R. Civ. P.

11(b)(3). 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)(1);

12 N.Y. C.R.R. § 142-2.2. 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. See Cabrera, 412 F. Supp. 3d

at 182–83.

Here, Plaintiffs allege that Defendants paid them $15 per

hour “for all hours worked” before July 16, 2022, $15 per hour

for all hours worked on weekdays on and after July 16, 2022, and

a $50 flat daily rate for two days per week (i.e., weekends)

worked on and after July 16, 2022. (Compl. ¶¶ 35–37; Gashimli

Aff. ¶¶ 8–10.) Plaintiffs also allege that Defendants failed to

pay Zabrodin any wages for his last three weeks of work.

(Compl. ¶ 38.) They explicitly assert that Defendants never

paid them the required overtime premium of one and one-half

times their regular rates. (Id. ¶¶ 45, 69, 79.) 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 more than ten

hours per day for at least some days that they were employed at

Silk Restaurant. (Compl. ¶¶ 33–34, 41.) They further allege

that Defendants paid them $15 per hour, $50 per day, or nothing

at all during this period. (Id. ¶¶ 35–38; Gashimli Aff. ¶¶ 8–

10.) They explicitly assert that Defendants never paid them the

required spread-of-hours premium. (Id. ¶ 83.) Thus, the Court

finds Defendants liable for violating the NYLL’s spread-of-hours

provision.

D. Tip Retention

The NYLL generally prohibits an employer from demanding,

accepting, or retaining any part of the gratuities received by

an employee; however, this prohibition does not apply to the

sharing of tips by a waiter with a busboy or similar employee.

N.Y. Lab. Law § 196-d. Here, Plaintiffs allege that Defendants

“maintained a policy and practice of unlawfully appropriating”

Plaintiffs’ tips. (Compl. ¶ 46.) Specifically, Plaintiffs

allege that Defendants required them to distribute their tips

and that “[s]uch tips were required to be distributed to non-

tipped managers” at Silk Restaurant, including to Kurbanov.

(Id. ¶ 48.) As Plaintiffs’ employer and owner of Silk 222,

Kurbanov was not entitled to retain any portion of Plaintiffs’

tips. See Shahriar v. Smith & Wollensky Rest. Grp., 659 F.3d

234, 240–41 (2d Cir. 2011). Thus, the Court finds Defendants

liable for violating the NYLL’s tip misappropriation provision.

The Court also finds that Defendants may not benefit from

the FLSA’s or NYLL’s “tip credit” provisions. See 29 U.S.C.

§ 203(m); 12 N.Y. C.R.R. § 146-1.3. Those provisions permit

employers to count tips that certain employees receive against

the full minimum wage that the employer would otherwise owe

them. Shahriar, 659 F.3d at 239–240. An employer may not

avail itself of either statute’s tip credit, however, if it

requires tipped employees to share tips with employees who do

not customarily receive tips, such as managers. Id. at 240–41

(explaining that 29 U.S.C. § 203(m) and 12 N.Y. C.R.R. § 196–d

“bar the same types of tipping practices”). Here, Defendants

are not entitled to a tip credit because they required

Plaintiffs to distribute tips to “non-tipped managers,”

including to Kurbanov. (See Compl. ¶ 48.)

E. Kickbacks

Plaintiffs’ ninth claim contains just one well-pleaded

factual allegation: that Defendants “made unlawful deductions

and required kickbacks from Plaintiffs’ wages, including but not

limited to, deductions . . . for purported 30- or 45-minute

breaks that Plaintiffs never received.” (Compl. ¶ 100.)

Plaintiffs do not elaborate on, or even mention, these

deductions in their supporting memorandum or affidavits, nor do

they appear to have included them in their damages computation.

(See 2d Am. Mizrahi Decl. Ex. A.) Thus, the Court considers

Plaintiffs to have abandoned their ninth claim in their Motion

for Default Judgment and declines to find Defendants liable for

that claim. See, e.g., W. Union Holdings, Inc. v. Haideri Paan

& Cigarettes Corp., No. 1:18-cv-4281(NGG)(SJB), 2020 WL 1061653,

at *3 n.2 (E.D.N.Y. Mar. 5, 2020).

IV. Relief

Because Plaintiffs have established Defendants’ liability

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

tip retention 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 a FLSA “collective action.” (See Compl. ¶¶ 58–

61, pp. 15–16.) 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 that request waived. See, e.g.,

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

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

where the plaintiff seeks to certify a FLSA collective action

and the defendant defaults or in similar situations, 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)(CLP), 2017 WL 10845064, at *2

(E.D.N.Y. Sept. 30, 2017); Galicia, 2015 WL 1469279, at *1

(granting default judgment and deeming collective action

certification request waived); Charvac v. M&T Project Managers

of N.Y., Inc., No. 1:12-cv-5637(CBA)(RER), 2013 WL 6711485, at

*3 (E.D.N.Y. Dec. 18, 2013) (denying motion without prejudice

and granting leave to amend where plaintiff purported to add

“opt-in” plaintiffs unnamed in the complaint). The Court will

proceed only with the named plaintiffs. Thus, the Court’s

decision applies only to Zabrodin and Gashimli 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)(JLC), 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).

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. §§ 216(b), 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 Plaintiffs did not act in good faith. (See Compl. ¶¶ 63–

64, 70, 73–74, 80, 83–84, 97.) Moreover, Defendants have not

answered or otherwise appeared in this action, so they have

forgone their opportunity to prove good faith. See Chen v.

Oceanica Chinese Rest., No. 1:13-cv-4623(NGG)(PK), 2023 WL

2583856, at *16 (E.D.N.Y. Mar. 21, 2023). Thus, the Court finds

Plaintiffs entitled to double damages for Defendants’ violations

of the FLSA and NYLL.

1. Zabrodin

Under the FLSA and NYLL, Zabrodin 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. For thirteen weeks from July 1, 2022,

through September 30, 2022, Zabrodin worked twelve hours per day

and four days per week for a total of 48 hours per week. Thus,

for these thirteen weeks, Defendants should have paid Zabrodin a

total of at least $10,920, which represents ($15 per hour x 40

hours of regular time per week x 13 weeks) + ($22.50 per hour x

8 hours of overtime per week x 13 weeks) + ($15 per day in

spread-of-hours premium x 4 days per week x 13 weeks). For the

five weekends in October 2022, Zabrodin worked twelve hours per

day and two days per week for a total of 24 hours per week.

Thus, for these five weeks, Defendants should have paid Zabrodin

a total of at least $1,950, which represents ($15 per hour x 24

hours of regular time per week x 5 weeks) + ($15 per day in

spread-of-hours premium x 2 days per week x 5 weeks). Adding

these figures together, Zabrodin should have been paid at least

$12,870 during the relevant timeframe.

Defendants actually paid Zabrodin $15 per hour for each of

the 108 hours he worked from July 1, 2022, through July 15,

2022, for a total of $1,620. They paid him $15 per hour for

each of the 252 weekday hours he worked from July 16, 2022,

through October 31, 2022, for a total of $3,780. They paid him

$50 per day for each of the 26 weekend days he worked from

July 16, 2022, through October 9, 2022, for a total of $1,300.

Finally, they paid him nothing for his last three weeks of

employment, through October 31, 2022. Adding these figures

together, Defendants actually paid Zabrodin $6,700 during the

relevant period.

Defendants are liable to Zabrodin in the amount of $6,170

(the difference between the $12,870 owed and $6,700 actually

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

violations. Zabrodin further estimates, however, that

Defendants unlawfully deducted $100 per day in tips from him for

each of the 62 days in the relevant period for a total of

$6,200. (See Mem. 14; 2d Am. Mizrahi Decl. Ex. A.) Thus, the

total compensatory damages Defendants owe Zabrodin are $12,370.

With liquidated damages, Zabrodin’s total damages are $24,740.

2. Gashimli

Under the FLSA and NYLL, Gashimli 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. For each of the thirteen weeks from

July 1, 2022, through September 30, 2022, Gashimli worked ten

hours per day for three days per week and twelve hours per day

for two days per week for a total of 54 hours per week. Thus,

for the relevant period, Defendants should have paid Gashimli a

total of at least $12,285, which represents ($15 per hour x 40

hours of regular time per week x 13 weeks) + ($22.50 per hour x

14 hours of overtime per week x 13 weeks) + ($15 per day in

spread-of-hours premium x 2 days per week7 x 13 weeks).

Defendants actually paid Gashimli $15 per hour for each of

the 118 hours he worked from July 1, 2022, through July 15,

2022, for a total of $1,770. They paid him $15 per hour for

7 The Court awards Gashimli a spread-of-hours premium for only two days per

week because his damages calculation shows that he worked exactly ten hours

per day for three days each week and exactly twelve hours per day for two

days each week. (See 2d Am. Mizrahi Decl. Ex. A.) Under the NYLL, an

employee is entitled to a spread-of-hours premium only for days the employee

worked more than ten hours and not for days the employee worked exactly ten

hours. See, e.g., Calle v. Pizza Palace Café LLC, No. 1:20-cv-4178(LDH)(LB),

2022 WL 609142, at *6 (E.D.N.Y. Jan. 4, 2022); Ventura v. Herreros, No. 1:18-

cv-6478(BMC), 2019 WL 343244, at *1 (E.D.N.Y. Jan. 28, 2019); Bedasie v. Z.

Towing, Inc., No. 1:13-cv-5453(CLP), 2017 WL 1135727, at *39 n.56 (E.D.N.Y.

Mar. 24, 2017).

each of the 320 weekday hours he worked from July 16, 2022,

through September 29, 2022, for a total of $4,800. They paid

him $50 per day for each of the 22 weekend days he worked from

July 16, 2022, through September 29, 2022, for a total of

$1,100. Adding these figures together, Defendants actually paid

Gashimli $7,670 during the relevant period.

Defendants are liable to Gashimli in the amount of $4,615

(the difference between the $12,285 owed and $7,670 actually

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

violations. Gashimli further estimates, however, that

Defendants unlawfully deducted $100 per day in tips from him for

each of the 65 days in the relevant period for a total of

$6,500. (See Mem. 14; 2d Am. Mizrahi Decl. Ex. A.) Thus, the

total compensatory damages Defendants owe Gashimli are $11,115.

With liquidated damages, Defendants are liable to Gashimli in

the amount of $22,230.

C. Pre-Judgment Interest

Though the FLSA does not permit awarding pre-judgment

interest in addition to liquidated damages, the NYLL does.

Fermin, 93 F. Supp. 3d at 48. To avoid giving the plaintiff a

windfall, however, courts award pre-judgment interest only on

the compensatory damages award and not on the 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; see

Vazquez v. 142 Knickerbocker Enter., Corp., 409 F. Supp. 3d 81,

90 (E.D.N.Y. 2018). 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 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)(ST), 2019 WL 2431905, at

*12 (E.D.N.Y. June 11, 2019).

Here, for ease of calculation and transparency, the Court

sets August 31, 2022, as the intermediate date for Zabrodin

because that date marks the halfway point in his employment with

Defendants during the relevant period. Defendants owe Zabrodin

daily interest in the amount of $3.05 (($12,370 x 0.09 annual

rate) / 365 days), starting from August 31, 2022, running

through today, November 20, 2023, for a total of $1,363.35.

Similarly, the Court sets August 15, 2022, as the

intermediate date for Gashimli because that date marks the

halfway point in his employment with Defendants during the

relevant period. Defendants owe Gashimli daily interest in the

amount of $2.74 (($11,115 x 0.09 annual rate) / 365 days),

starting from August 15, 2022, running through today,

November 20, 2023, for a total of $1,268.62.

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

involves multiplying the number of hours counsel reasonably

expended on the litigation by a reasonable hourly rate.

Martinez v. City of New York, 330 F.R.D. 60, 66 (E.D.N.Y. 2019).

The fee applicant has the burden to prove the reasonableness and

necessity of the hours spent and rates charged. Id. The

applicant also must provide contemporaneous records indicating

for each attorney the date, hours expended, and nature of the

work done. Id. 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. Id. at 69.

Here, Plaintiffs 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 2d Am.

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

Jason Mizrahi completed 27.95 hours of work on this case and

that paralegal Alexis Abrego completed 3.50 hours. The Court

omits the three one-hour entries for process servers and filing

fees, which are listed under 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 Mizrahi and

$50 for Abrego. (Mem. 16.) 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,

(see 2d Am. Mizrahi Decl. Ex. B). Consequently, fees will not

be awarded to Levin-Epstein.

The Court calculates Plaintiffs’ total fee request is

$9,957.50, which represents ($350 hourly rate x 27.95 hours) +

($50 hourly rate x 3.50 hours). Puzzlingly, Plaintiffs’ motion

requests $9,957.50 “[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. 15–16.) 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 the 31.45 hours for which Plaintiffs’

counsel seeks compensation are unreasonable, especially given

Plaintiffs’ counsel’s repeated errors. The number itself is not

necessarily excessive. See, e.g., Villarrubia v. La Hoguera

Paisa Rest. & Bakery Corp., No. 1:18-cv-4929, 2020 WL 6430327,

at *3 (E.D.N.Y. Oct. 9, 2020) (awarding attorneys’ fees for

33.68 hours of work in granting motion for default judgment in

FLSA and NYLL case), R&R adopted by 2020 WL 6415171 (E.D.N.Y.

Nov. 2, 2020). Closely scrutinizing Plaintiffs’ counsel’s

billing records, however, reveals inflated billing.

First, the Court is skeptical that drafting a damages

computation, drafting an attorney declaration, and drafting

client affidavits were all tasks that took Mizrahi exactly 3.00

hours, as his time entries claim. (See 2d Am. Mizrahi Decl.

Ex. B.) The Court is also skeptical that it took Mizrahi 2.25

hours to draft a half-page letter to Magistrate Judge Henry

requesting an extension to file Plaintiffs’ Motion for Default

Judgment. (See id.) The Court is further skeptical that client

intake took precisely the same amount of time for Zabrodin and

Gashimli. (See id.) Finally, the Court observes that

Plaintiffs’ counsel is litigating another FLSA and NYLL default

judgment motion in this district, coincidentally before the

undersigned judge, and that Plaintiffs’ counsel twice mistakenly

confused the two cases and attached their billing records from

that other case to their motion papers in the instant case.

(See Mizrahi Decl. Ex. B; Am. Mizrahi Decl. Ex. B.) Given the

striking similarities between the papers Plaintiffs’ counsel

filed in these two relatively straightforward cases, it was

unreasonable that Plaintiffs’ counsel could not litigate this

case more efficiently. Moreover, Plaintiffs’ counsel made

numerous errors that caused the Court to issue orders directing

Plaintiffs’ counsel to correct their filings.

The Court exercises its discretion to deduct a reasonable

percentage of the 31.45 hours for which Plaintiffs’ counsel seek

compensation “as a practical means of trimming the fat” from

their fee request. See Gagasoules v. MBF Leasing LLC,

296 F.R.D. 107, 111–12 (E.D.N.Y. 2013) (quoting Kirsch v. Fleet

Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998)). Thus, the

Court deducts ten percent of the hours Mizrahi billed and awards

fees for 25.16 hours of work by Mizrahi and 3.50 hours of work

by Abrego.

The Court also finds Mizrahi’s requested hourly rate of

$350 excessive because it is at the high end of what courts in

this district generally award for work by senior associates in

FLSA and NYLL cases. See Jones v. Pawar Bros. Corp.,

No. 1:17-cv-3018(PKC)(SJB), 2023 WL 6214213, at *7 (E.D.N.Y.

Sept. 25, 2023) (listing the range as $200 to $325). Here, the

Court declines to award above-average fees for below-average

work. Plaintiffs’ counsel made numerous errors that needlessly

delayed and complicated the Court’s resolution of an otherwise

routine default judgment motion. See Gesualdi v. Stallone

Testing Labs., Inc., No. 1:10-cv-646(ENV)(LB), 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). These mistakes warrant an hourly

rate of $200, the low end of what courts in this district

typically award for work by senior associates. See Jones,

2023 WL 6214213, at *8.8

Plaintiffs’ counsel’s errors9 included failing to serve

Kurbanov until reminded by court order, see supra p. 6, filing

their motion late without explanation, see supra p. 7, failing

to alert the Court to a potential subject-matter jurisdiction

defect, see supra p. 11, failing to comply with Local Rule 55.2,

see supra p. 17, attaching a damages spreadsheet inconsistent

with the Complaint’s allegations, see supra p. 26, attaching the

wrong billing records to the attorney declaration, (see Mizrahi

Decl.), failing to correct that mistake in filing the first

corrected declaration, (see Am. Mizrahi Decl.), and making an

unsupported request for attorneys’ fees based on the percentage

8 The Court is aware that it recently reduced Plaintiffs’ counsel’s hourly

rate only to $250 for similar reasons in a similar case. See Mem. & Order at

34, Proano v. Melrose Home Improvement Corp., No. 1:22-cv-6050(KAM)(JAM)

(E.D.N.Y. Nov. 17, 2023), ECF No. 24. Plaintiffs’ counsel’s errors caused

more problems in the instant case, thus warranting a greater reduction.

9 Though Plaintiffs’ counsel’s billing records indicate that Mizrahi was the

only attorney who worked on the matter and he is the only attorney who has

entered an appearance, Levin-Epstein is the senior attorney listed on the

docket and his signature appears on the Complaint. (See Compl. p. 17.)

Minimal oversight on his part may have avoided some of these errors.

method, see supra p. 39. Such errors pose special problems in

the default judgment context, where courts cannot rely on the

adversarial process to reveal them.

Thus, the Court awards $5,207.00 in attorneys’ fees, which

represents Plaintiffs’ calculation with a ten percent reduction

from the number of hours Mizrahi billed and a $150 reduction

from Mizrahi’s requested hourly rate.

The Court awards $587.30 in costs, which include process

server charges of $72.20 and $113.10 plus $402 in filing fees.

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

Decl. Ex. C.)

E. Post-Judgment Interest

Plaintiffs are entitled to post-judgment interest at the

statutory rate as of right. 28 U.S.C. § 1961. Thus, post-

judgment interest shall accrue 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 Zabrodin is entitled to the principal balance of

$24,740 and pre-judgment interest in the amount of $1,363.35.

Zabrodin shall be awarded post-judgment interest at the rate set

forth in 28 U.S. § 1961(a), from the date judgment is entered

until the date the judgment is paid in full.

Plaintiff Gashimli is entitled to the principal balance of

$22,230 and pre-judgment interest in the amount of $1,268.62.

Gashimli shall be awarded post-judgment interest at the rate set

forth in 28 U.S. § 1961(a), from the date judgment is entered

until the date the judgment is paid in full.

Plaintiffs are entitled to attorneys’ fees in the amount of

$5,207.00 and costs in the amount of $587.30.

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.

Plaintiffs are 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.

Dated: November 20, 2023 - “f? □□

Brooklyn, New York we ig et Lue

kitUa. wmarsmmoro.=~=~S~™S

United States District Judge

Eastern District of New York

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