# Blanco v. M&R Plaza Deli Inc.

> District Court, E.D. New York · October 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10768557

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10768557

## How later opinions describe it (automated extraction)

- holding that there is enterprise coverage when workers “handle goods or materials that have moved or been produced in interstate commerce.”
- noting that plaintiffs cannot recover cumulative liquidated damages under both the FLSA and NYLL for the same period

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------X
JUAN GALICIA BLANCO,

Plaintiff,
REPORT AND
-against- RECOMMENDATION
23 CV 9408 (EK)(RML)
M&R PLAZA DELI INC. and
RASHAD MUSTAFA ALMALIKI,
as an individual,

Defendants.
---------------------------------------------------X
LEVY, United States Magistrate Judge:
By order dated March 28, 2024, the Honorable Eric R. Komitee, United States
District Judge, referred plaintiff’s motion for default judgment to me for report and
recommendation. For the reasons stated below, I respectfully recommend that plaintiff’s motion
be granted in part and denied in part, and that plaintiff be awarded $17,049.90 in damages, plus
post-judgment interest.
BACKGROUND AND FACTS
Plaintiff Juan Galicia Blanco (“plaintiff”) commenced this wage and hour action
on December 21, 2023, against defendants M&R Plaza Deli Inc. (“corporate defendant”) and
Rashad Mustafa Almaliki (“individual defendant” and together with corporate defendant,
“defendants”), asserting claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 301,
et seq., and the New York Labor Law (“NYLL”) §§ 190, et seq. (Complaint, dated Dec. 21,
2023 (“Compl.”), Dkt. No. 1.) Plaintiff was employed by defendants as a stocker, food preparer,
and helper from in or around October 2021 until in or around February 2022. (Id. ¶¶ 7, 19; see
also Affidavit of Juan Galicia Blanco, dated July 31, 2024 (“Blanco Aff.”), Dkt. No. 19-1.)1
Corporate defendant is a New York domestic business corporation organized under the laws of
New York with its principal place of business located in Queens, New York. (Compl. ¶ 8.)
Individual defendant is the owner, officer, and/or agent of corporate defendant. (Id. ¶¶ 9, 10.)

Individual defendant is responsible for overseeing the daily operations of corporate defendant,
has power and authority over all final personnel and payroll decisions of corporate defendant,
and has exclusive final power to hire and fire employees of corporate defendant. (Id. ¶¶ 11-15.)
Furthermore, individual defendant is responsible for determining, establishing, and paying the
wages of all employees of corporate defendant as well as setting working schedules and
maintaining employment records of the business. (Id. ¶ 16.)
Plaintiff has provided proof of proper service of the summons and complaint on
defendants. (See Affidavit of Service of Warren Bozarth, sworn to Jan. 4, 2024, Dkt. No. 9;
Affidavit of Service of Sean Warner, sworn to Jan. 9, 2024, Dkt. No. 10; see also Affirmation of
Avraham Y. Scher, Esq., dated Mar. 19, 2024 (“Scher Aff.”), Dkt. No. 16, ¶¶ 6-9.) Defendants

have failed to answer or otherwise move with respect to the complaint. Plaintiff moved for entry
of default pursuant to Federal Rule of Civil Procedure 55(a) on February 13, 2024. (See Request
for Certificate of Default, filed Feb. 13, 2024, Dkt. No. 12.) On February 16, 2024, the Clerk of
the Court noted both defendants’ default. (See Clerk’s Entry of Default, dated Feb. 16, 2024,
Dkt. No. 13.) On March 19, 2024, plaintiff moved for default judgment. (See Motion for
Default Judgment, dated Mar. 19, 2024, Dkt. No. 15.) Judge Komitee referred plaintiff’s motion
to me on March 28, 2024. (See Order, dated Mar. 28, 2024.)

1 On July 1, 2024, I directed plaintiff to submit an affidavit clarifying specific factual matters
regarding his employment with defendants. (See Order, dated July 1, 2024.) In compliance
with that order, plaintiff filed the instant affidavit on July 31, 2024. (See Blanco Aff.)
Plaintiff seeks default judgment on claims under the FLSA and NYLL for
defendants’ failure to (1) pay minimum wages, (2) pay overtime compensation; (3) pay regular
wages; and (4) provide proper wage notices and wage statements. (Scher Aff. at 6; see also
Plaintiff’s Memorandum of Law, dated Mar. 19. 2024 (“Pl.’s Mem.”), Dkt. No. 17, at 13-16.)

Plaintiff requests an award of unpaid wages, liquidated damages, statutory damages, and post-
judgment interest. (Pl.’s Mem. at 16-19.)
DISCUSSION
The Federal Rules of Civil Procedure prescribe a two-step process for a plaintiff
to obtain a default judgment. First, “[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default,” as it has done here. FED. R. CIV. P. 55(a).
Second, after a default has been entered against the defendant and the defendant fails to appear
or move to set aside the default under Rule 55(c), the court may, on a plaintiff’s motion, enter a
default judgment. FED. R. CIV. P. 55(b)(2). To grant a default judgment, the court must ensure

that the plaintiff took all the required steps in moving for default judgment, including providing
proper notice to defendants of the lawsuit. Here, as explained above, plaintiff has demonstrated
that he properly served defendants with the summons and complaint. Plaintiff has also
demonstrated that he served the Motion for Default Judgment and accompanying submissions on
defendants in compliance with Local Rule 55.2(c). (See Affirmation of Service of Roman
Avshalumov, Esq., dated Mar. 19, 2024, Dkt. No. 18.)
A. Liability
An entry of default alone is insufficient to establish liability, “since a party in
default does not admit mere conclusions of law.” Trs. of the Plumbers Loc. Union No. 1
Welfare Fund v. Philip Gen. Constr., No. 05 CV 1665, 2007 WL 3124612, at *3 (E.D.N.Y. Oct.
23, 2007) (citation omitted). A defendant’s “default is deemed to constitute a concession of all
well pleaded allegations of liability.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp.,
973 F.2d 155, 158 (2d Cir. 1992). Where a plaintiff moves for default judgment, the court “is

required to accept all of [the plaintiff’s] factual allegations as true and draw all reasonable
inferences in [the plaintiff’s] favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)
(citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). The court must also
“determine whether [plaintiff’s] allegations establish [defendants’] liability as a matter of law.”
Id.
Plaintiff has sufficiently pleaded factual allegations that give rise to liability for
unpaid overtime, minimum, and regular wages under the FLSA and NYLL. (See Compl. ¶¶ 20-
31, 44-82.) The extent to which plaintiff can recover damages for these violations initially
depends on whether: (1) his claims are timely; (2) he is a covered employee under the FLSA and
the NYLL; and (3) defendants were plaintiff’s employers under the FLSA and NYLL.

1. Timeliness
For claims to be timely under the FLSA, they must have arisen within the two
years prior to filing of the complaint, or––for willful violations––within the three years prior. 29
U.S.C. § 255(a). Here, the complaint filed on December 21, 2023 alleges willful violations of
the FLSA. (See Compl. ¶¶ 48, 49.) Therefore, the FLSA’s three-year statute of limitations
applies. Because plaintiff alleges that he was not properly paid wages for the period of October
2021 through February 2022, I find that those claims are timely under the FLSA. Regardless of
willfulness, plaintiff’s claims must arise within six years prior to the filing of the complaint to be
timely under the NYLL. See N.Y. LAB. L. §§ 198(3), 663(3). Thus, plaintiff’s claims are also
timely under the NYLL.
2. Employee Coverage
Since the provisions of the FLSA and NYLL apply only to employees of covered
employers, a plaintiff in a wage and hour action must show that he or she was defendant’s

employee, and that defendant was an employer subject to the coverage of each statute. For
purposes of the FLSA, an employee is “any individual employed by an employer,” meaning any
individual whom an employer “suffer[s] or permit[s] to work.” 29 U.S.C. §§ 203(e)(1); (g).
Absent a statutory exemption, such individuals are protected by the FLSA, so long as they work
for a covered employer. An employer is defined as “any person acting directly or indirectly in
the interest of an employer in relation to an employee.”2 29 U.S.C. § 203(d). “Person” is
defined as “an individual, partnership, association, corporation, business trust, legal
representative, or any organized group of persons.” Id. § 203(a).
“Employers are subject to FLSA when their employees are either engaged in
commerce or in the production of goods for commerce (‘individual coverage’) or employed in an

enterprise engaged in commerce or in the production of goods for commerce (‘enterprise
coverage’).” Reyes v. Tacos El Gallo Giro Corp., No. 20 CV 3474, 2022 WL 940504, at *3
(E.D.N.Y. Jan. 25, 2022), report and recommendation adopted, 2022 WL 939769 (E.D.N.Y.
Mar. 29, 2022) (citing 29 U.S.C. §§ 206(a), 207(a)(1)) (quotation marks and citations omitted)).
“[T]o properly allege individual or enterprise coverage, [plaintiff] need not do much. Aside from
stating the nature of [his] work and the nature of [his employers’] business, plaintiff[] must

2 “Courts have interpreted the definition of ‘employer’ under the [NYLL] coextensively with
the definition used by the FLSA.” Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253,
308 n.21 (S.D.N.Y. 2011); see also Oaxaca v. Hudson Side Cafe Inc., No. 13 CV 2698, 2018
WL 4859152, at *8 (E.D.N.Y. Oct. 8, 2018); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.
Supp. 3d 19, 37 (E.D.N.Y. 2015).
provide only straightforward allegations connecting that work to interstate commerce.” Id.
(citations and quotation marks omitted).
Plaintiff worked for defendants as a stocker, food preparer, and helper and
performed related miscellaneous duties for defendants from October 2021 until in or around

February 2022. (See Compl. ¶ 1, 7; Pl.’s Mem. at 2; Blanco Aff. ¶¶ 3, 4.) Plaintiff has
adequately pleaded that he was an employee to whom no statutory exemption applies. He has
additionally alleged that he was “engaged in interstate commerce and/or was engaged in the
production of goods for/through the channels of interstate commerce.” (Compl. ¶¶ 46, 57.)
Furthermore, plaintiff alleges that corporate defendant had a gross annual volume of sales of not
less than $500,000 per year during the relevant period and “has purchased goods, tools, and
supplies for its business through the streams and channels of interstate commerce and has had
employees engaged in interstate commerce, and/or in the production of goods intended for
commerce, and handle, sell and otherwise work with foods and material[s] that have been moved
in or produced for commerce . . . .” (Id. ¶¶ 18, 47, 58.) On a motion for default judgment, it is

sufficient to plead facts that plaintiff “handled goods or items that originated out-of-state.” See,
e.g., Brummell v. K1 HVAC Inc., No. 19 CV 5488, 2021 WL 3888138, at *3 (E.D.N.Y. Aug.
13, 2021); see also Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 121 (E.D.N.Y.
2011) (holding that there is enterprise coverage when workers “handle goods or materials that
have moved or been produced in interstate commerce.”) Accordingly, I find that plaintiff has
established that he is a covered employee under the FLSA and the NYLL.
3. Employer Status of Defendants
Plaintiff seeks to hold two defendants—one corporation and one individual—
liable for his unpaid wages. (Compl. ¶¶ 8-18.) To establish corporate defendant’s liability
under the FLSA and NYLL, plaintiff must allege that it was an “enterprise engaged in

commerce or in the production of goods for commerce” within the applicable statutory
definition. 29 U.S.C. § 203(s)(1). As discussed above, plaintiff has sufficiently established that
corporate defendant was his employer and that it was engaged in commerce. (See Compl. ¶¶
18, 47, 58.)
To hold individual defendant liable under the FLSA and NYLL, plaintiff must
allege that individual defendant was his “employer” within the broad meaning of 29 U.S.C. §
203(d). See Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 35-37 (E.D.N.Y.
2015). The Second Circuit has set forth a series of non-exclusive factors for evaluating the
“economic reality” of a given relationship to determine whether an employment relationship
exists. See Carter v. Dutchess Cmty. Coll., 738 F.2d 8, 12 (2d Cir. 1984). These factors include

whether the alleged employer: (1) had the power to hire and fire the employee; (2) supervised
and controlled employee work schedules or conditions of employment; (3) determined the rate
and method of payment; and (4) maintained employment records. Id.; see also Herman v. RSR
Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). Here, plaintiff alleges that individual
defendant is the owner, officer, and/or agent of corporate defendant; that he possessed and
exercised operational control over corporate defendant; and that he had the authority to
determine the wages and compensation of employees, establish the schedules of employees,
maintain employee records, hire and fire employees, and set the salaries of employees. (Compl.
¶¶ 11-16.) Thus, plaintiff has alleged all four of the Carter factors and I therefore find that
individual defendant was plaintiff’s employer. Accordingly, plaintiff has established the
liability of both defendants under the FLSA and NYLL.
B. Damages
Once the court determines that a defaulting defendant is liable, “the court must

conduct an inquiry to establish damages to a ‘reasonable certainty.’” Gunawan v. Sake Sushi
Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012) (quoting Credit Lyonnais Sec. (USA), Inc. v.
Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). “[T]he quantum of damages remains to be
established by proof unless the amount is liquidated or susceptible of mathematical
computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). “The burden is on the
plaintiff to establish [his or her] entitlement to recovery.” Bravado Int’l Grp. Merch. Servs. v.
Ninna, Inc., 655 F. Supp. 2d 177, 189 (E.D.N.Y. 2009). Plaintiff requests $26,971.43 for unpaid
wages, liquidated damages, and wage notice and statement violations. (Pls.’ Mem. at 20; see
also Damages Calculations, attached as Ex. G to the Scher Aff., Dkt. No. 16-7.) I will address
each category of damages in turn.

1. Unpaid Wages
“As a preliminary matter, when an employer fails to maintain accurate records or
where, as here, no records have been produced as a consequence of a defendant’s default, courts
have held that the ‘plaintiff[’s] recollection and estimates of hours worked are presumed to be
correct.’” Gunawan, 897 F. Supp. 2d at 88 (quoting Zeng Liu v. Jen Chu Fashion Corp., No. 00
CV 4221, 2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004)); see also Kim v. Kum Gang, Inc., No.
12 CV 6344, 2015 WL 2222438, at *25 (S.D.N.Y. Mar. 19, 2015) (where an employer fails to
maintain records of wages and hours, plaintiffs “need only prove that they performed work for
which they were not properly compensated and produce sufficient evidence to show the amount
and extent of that work as a matter of just and reasonable inference”) (internal quotation marks
and citations omitted). Here, because defendants have defaulted and no employment records
have been produced, the court will presume the accuracy of plaintiff’s recollection and estimates
of hours worked. Plaintiff asserts that he regularly worked five days a week with shifts

beginning at approximately 6:30 a.m. and ending at approximately 4:30 p.m. (Compl. ¶ 21.) As
such, plaintiff worked approximately ten hours per day or fifty hours per week. (Id. ¶ 22.)
Regardless of the number of hours plaintiff worked, defendants paid plaintiff a flat daily rate of
$90. (Id. ¶ 23.)
a. Minimum Wages
Under both the FLSA and the NYLL, employees must be paid at least the
minimum hourly wage for each hour that they work. 29 U.S.C. § 206; N.Y. LAB. L. § 652. At all
times relevant to this action, the FLSA required defendants to pay plaintiff a minimum hourly
wage of $7.25. 29 U.S.C. § 206(a)(1). However, New York law obligated defendants to pay
plaintiff a minimum hourly wage of $15.00.3 N.Y. LAB. L. § 652(1)(a)(i). Because New York’s

minimum wage is higher than the federal minimum wage, plaintiff may recover that amount. 29
U.S.C. § 218(a); see also Gunawan, 897 F. Supp. 2d at 89.
To determine whether defendants paid plaintiff at least minimum wage, it is first
necessary to determine his regular hourly rate of pay. Under both federal and New York law,
when an employee is paid a flat, daily rate irrespective of the number of hours actually worked,
that employee’s regular rate is computed by “totaling all the sums received at such day rates . . .

3 This is the minimum wage for both “large employers” (employers of eleven or more
employees) and “small employers” (employers of ten or less employees). N.Y. LAB. L. §
652(1)(a)(i). Plaintiff has not specified defendant’s number of employees. Regardless, the
minimum wage during plaintiff’s period of employment was $15.00 for both large and small
employers.
in the workweek and dividing by the total hours actually worked.” 29 C.F.R. § 778.112; see also
N.Y.C.R.R. tit. 12, § 142-2.2. Plaintiff alleges that he was paid a daily rate of $90 from October
2021 through February 2022. (Compl. ¶ 23; Blanco Aff. ¶¶ 12,13.) Plaintiff alleges that he
worked fifty hours per week. (Compl. ¶ 22; Blanco Aff. ¶¶ 11, 13.)

Based on plaintiff’s submissions and my own calculations, I find that defendants
did not pay plaintiff a regular hourly rate of pay that was equal to or greater than the wage
required by New York law from October 2021 through February 2022. Therefore, plaintiff is
owed damages for minimum wage violations for that period. I respectfully recommend that
plaintiff be awarded $5,143.20 for minimum wage violations, in line with the below calculations.
Regular Hourly Rate of Pay Calculation
Pay Period Calc.
Hours Minimum
Weekly Regular
Worked per Wage Rate
From To Compensation Rate of
Week (NYLL)
Pay
10/1/21 2/28/22 $450.00 50 $9.00 $15.00

Minimum Wage Calculation
Pay Period Hourly
Regular Minimum Minimum
Weeks Hours Rate of Wage Minimum Wages
From To Wages
Pay Rate Owed
Owed
10/1/21 2/28/22 21.43 40 $9.00 $15.00 $6.00 $5,143.20
b. Overtime Compensation
Plaintiff alleges that defendants willfully violated the FLSA and NYLL by failing
to pay him overtime wages. (Compl. ¶¶ 48, 49.) Plaintiff is entitled to compensation under the
FLSA and NYLL at the rate of one and one-half times his regular rate of pay for the hours he
worked in excess of forty during a workweek. See 29 U.S.C. § 207(a)(1); N.Y.C.R.R. tit. 12, §
142-2.2. “‘[T]he regular rate refers to the hourly rate actually paid [to] the employee for the
normal, non-overtime workweek for which he [or she] is employed.’” Hernandez v. NJK
Contractors, Inc., No. 09 CV 4812, 2015 WL 1966355, at *41 (E.D.N.Y. May 1, 2015) (quoting
Walling v. Youngerman Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)). The method for
calculating overtime is the same under both statutes, but a plaintiff may not receive double
damages. See Martinez v. Alimentos Saludables Corp., No. 16 CV 1997, 2017 WL 5033650, at

*15 (E.D.N.Y. Sept. 22, 2017).
To calculate the overtime compensation plaintiff is owed, the number of hours he
worked over forty each week is multiplied by 150 percent of the higher of (i) his regular rate of
pay, or (ii) the applicable minimum wage. See Long Lin v. New Fresca Tortillas, Inc., No. 18
CV 3246, 2019 WL 3716199, at *3 (E.D.N.Y. May 1, 2019). Here, plaintiff’s overtime rate is
calculated by multiplying the applicable minimum wage, as it is higher than plaintiff’s regular
rate of pay. Accordingly, his overtime rate is $22.50. Plaintiff alleges that he worked
approximately 50 hours per week and that defendants never paid him overtime compensation.
(See Compl. ¶¶ 25, 48, 49, 53.)
Because plaintiff has already been paid for the hours he worked, the overtime

wage deficiency “is calculated by multiplying the difference between the paid rate and the
overtime wage rate by the total number of overtime hours worked.” Sanchez v. Ms. Wine Shop
Inc., No. 22 CV 2178, 2022 WL 17368867, at *12 (E.D.N.Y. Nov. 30, 2022) (citations omitted).
Alternatively, plaintiff’s actual compensation for overtime hours worked can be subtracted from
the overtime wages that should have been paid to plaintiff based on his applicable overtime rate
to achieve the same result, as demonstrated below. Based on the calculations in the below table,
I respectfully recommend that plaintiff be awarded $2,931.75 in unpaid overtime wages.
Pay Period Weeks OT
Regular
Hours Overtime Wages Owed Minus
Rate of Overtime
From To per Wages Paid
Pay Rate
Week
10/1/21 2/28/22 21.43 10 $9.00 $22.50 $4,821.74 - $1,890.00
Total OT Wages Owed $2,931.75
c. Regular Wages
“Plaintiffs are entitled to the full amount of their unpaid wages under the Labor
Law, which requires payment of all unpaid wages.” Jemine v. Dennis, 901 F. Supp. 2d 365,
379 (E.D.N.Y. 2012) (citing N.Y. LAB. L. § 198(3)). Plaintiff alleges that he was not
compensated at all for his last five days of employment by defendants. (Compl. ¶ 26; Pl.’s
Mem. at 15-16; Blanco Aff. ¶ 16.) The amounts owed to plaintiff for minimum wage and
overtime compensation deficiencies for this period are accounted for within the above
calculations. However, plaintiff is entitled to his regular wages of $90 per day for those five

days. Accordingly, I recommend that plaintiff be awarded $450 for his last five days of
employment with defendants for which he has not been compensated. In sum, I recommend
that plaintiff be granted $8,524.95 in unpaid minimum, overtime, and regular wages.
2. Liquidated Damages
Plaintiff additionally requests liquidated damages for unpaid wages. (See Pl.’s
Mem. at 16-18; Damages Calculations); see also Rana v. Islam, 887 F.3d 118, 119 (2d Cir. 2018)
(noting that plaintiffs cannot recover cumulative liquidated damages under both the FLSA and
NYLL for the same period). Plaintiff may recover liquidated damages in the amount of 100
percent of unpaid wages “unless the employer proves a good faith basis to believe that its

underpayment of wages was in compliance with the law.” N.Y. LAB. L. §§ 198(1-a), 663; see
also Garcia v. Giorgio’s Brick Oven & Wine Bar, No. 11 CV 4689, 2012 WL 3339220, at *4
(S.D.N.Y. Aug. 15, 2012), report and recommendation adopted, 2012 WL 3893537 (S.D.N.Y.
Sept. 7, 2012). Here, defendants have not answered or otherwise appeared in this action and thus
cannot demonstrate a “good faith” basis for believing the underpayment of wages was lawful. I
accordingly recommend that plaintiff be awarded $8,524.95 in liquidated damages, which is the
amount equal to his unpaid wages.
3. Wage Notices & Wage Statements
Plaintiff also seeks $10,000 in statutory damages for defendants’ failure to

provide wage notices or wage statements as required by NYLL §§ 195(1) and 195(3). (Pl.’s
Mem. at 18-19.) New York’s Wage Theft Prevention Act (“WTPA”) § 195(1) requires
employers to give their employees written notice containing the “employee’s rate of pay,
allowances, and various other information relating to the computation of plaintiff’s pay” at the
time of hiring. Deng v. Frequency Elecs., Inc., No. 21 CV 6081, 2022 WL 16923999, at *8
(E.D.N.Y. Nov. 14, 2022). NYLL § 195(3) requires employers “to provide, for each pay period,
a statement (‘wage statement’) showing how that pay was computed including deductions.” Id.
Plaintiff asserts that he never received a wage notice or wage statements from defendants.
(Compl. ¶¶ 17-31; Pl.’s Mem. at 18.)
The WTPA provides for statutory damages for violations of § 195; however, the

Second Circuit Court of Appeals recently held that, in order to establish Article III standing, a
plaintiff cannot rely on “technical violations” of the New York Labor Law but must allege
“‘actual injuries suffered as a result of the alleged . . . wage notice and wage statement
violations.’” Guthrie v. Rainbow Fencing Inc., 113 F.4th 300, 305 (2d Cir. 2024) (quoting and
affirming Guthrie v. Rainbow Fencing Inc., No. 21 CV 5929, 2022 WL 18999832, at *6
(E.D.N.Y. Dec. 13, 2022)). The court explained that “a plaintiff must show some causal
connection between the lack of accurate notices and the downstream harm” and “unless the
plaintiff-employee can show that he or she would have undertaken [self-]advocacy and
plausibly would have avoided some actual harm or obtained some actual benefit if accurate
notices had been provided, the plaintiff-employee has not established a concrete injury-in-fact
sufficient to confer standing to seek statutory damages under § 195.” Id. at 308. The plaintiff
must “‘link the general harms an employee might experience to any harms that [the plaintiff]
did, in fact, experience.’” Id. at 311 (quoting Maddox v. Bank of New York Mellon Trust Co.,

N.A., 19 F.4th 58, 64 (2d Cir. 2021) (emphasis in original)).
Here, plaintiff alleges that as a “direct result” of defendants’ failure to provide
proper wage notices and statements, plaintiff “suffered a concrete harm, resulting from
Plaintiff’s inability . . . to remedy his compensation problems, lack of knowledge about the rates
of pay he was receiving and/or should have [been] receiving for his regular hours and overtime
hours, terms, and conditions of his pay, and furthermore, an inability to identify his hourly rate
of pay to ascertain whether he was being properly paid in compliance with the FLSA and
NYLL – which he was not.” (Compl. ¶ 30.) This is insufficient to establish standing under
Guthrie, and I therefore recommend that plaintiff’s request for statutory damages under the
WTPA be denied.

4. Post-judgment Interest
Finally, plaintiff requests post-judgment interest under 28 U.S.C. § 1961(a).
(Pl.’s Mem. at 19.) Section 1961 provides that interest is calculated “from the date of the entry
of judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Reserve System, for the calendar week
preceding[ ] the date of the judgment.” 28 U.S.C. § 1961(a). Moreover, post-judgment interest
under Section 1961 is mandatory. See Fermin, 93 F. Supp 3d at 53. Therefore, I respectfully
recommend that plaintiff be awarded post-judgment interest under 28 U.S.C. § 1961.
C. Attorney’s Fees and Costs
As the prevailing party, plaintiff is entitled to recover reasonable attorney’s fees
and costs under both the FLSA and the NYLL. See 29 U.S.C. § 216(b), N.Y. LAB. L. §§ 198,
663(1). Courts in this Circuit exercise their discretion to determine the reasonableness of

attorney’s fees using the “presumptively reasonable fee” standard. Arbor Hill Concerned
Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 183, 190 (2d Cir. 2008). The
presumptively reasonable fee, also known as the lodestar, is “the product of a reasonable hourly
rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R. Co.,
658 F.3d 154, 166 (2d Cir. 2011). As a threshold matter, the party seeking fees must provide
accurate, detailed, and contemporaneous attorney time records. See Scott v. City of New York,
643 F.3d 56, 58-59 (2d Cir. 2011) (per curiam). Although plaintiff includes a request for
attorney’s fees and costs in the complaint, plaintiff has not requested attorney’s fees and costs in
the submissions accompanying the motion for default judgment or provided any attorney time
records for this action. Therefore, I cannot recommend an award of attorney’s fees and costs at

this time. Instead, I recommend giving plaintiff thirty days to file a request for attorney’s fees
and costs accompanied by accurate, detailed, and contemporaneous time records.
CONCLUSION
For the reasons set forth above, I respectfully recommend that plaintiff’s motion
be granted in part and denied in part. Furthermore, I respectfully recommend that plaintiff be
awarded $17,049.90, representing $8,524.95 in unpaid wages and $8,524.95 in liquidated
damages. Additionally, I recommend that post-judgment interest be awarded at the rate set forth
in 28 U.S.C. § 1961(a). Finally, I recommend that plaintiff be granted leave to file a request for
attorney’s fees and costs within thirty days. Plaintiff is directed to serve copies of this Report
and Recommendation on defendants by regular mail, and to file proof of service with the court
within ten days of this Report and Recommendation. Any objections to this Report and
Recommendation must be filed electronically within fourteen days. Failure to file objections
within the specified time waives the right to appeal the district court’s order. See 28 U.S.C.

§ 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(d).
Respectfully submitted,

/s/
ROBERT M. LEVY
United States Magistrate Judge

Dated: Brooklyn, New York
October 29, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10768557. Public record. Not legal advice.