Park v. Khims Market Inc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MYOUNG SU PARK, on behalf of himself and

a collective of similarly situated individuals,

REPORT AND

Plaintiff, RECOMMENDATION

24 CV 7437 (DG) (CLP)

-against-

KHIMS MARKET INC., et al.,

Defendants.

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POLLAK, United States Magistrate Judge:

On October 24, 2024, plaintiff Myoung Su Park commenced this action, on behalf of

himself and others similarly situated, against defendants Khims Market Inc, d/b/a Khim’s

Millenium Market (“KMM”), The Mileu Market Inc, d/b/a Mileu Market (“MM”) (collectively,

the “corporate defendants”), and Sang Kyu Khim (the “individual defendant”), alleging

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

York Labor Law §§ 190 et seq., §§ 650 et seq. (the “NYLL”). (Compl.1).

On November 12, 2024, plaintiff served individual defendant Sang Kyu Khim by leaving

the summons and Complaint at Mr. Khim’s residence with Heung Khim, who confirmed she

resided with Mr. Khim, and mailing a copy to his last known address. (ECF No. 6). Defendant

Khim failed to answer or otherwise respond to the Complaint, and on December 17, 2024,

plaintiff requested a Certificate of Default to be entered against individual defendant Khim.

(ECF No. 7). On December 19, 2024, the Clerk entered default as to individual defendant Khim.

(ECF No. 8).

1 Citations to “Compl.” refer to plaintiff’s Complaint filed October 24, 2024 (ECF No. 1).

In a January 14, 2025 status report to the court, plaintiff indicated that he had been unable

to serve the corporate defendants, as their business locations are permanently closed. (ECF No.

9). On February 21, 2025, plaintiff moved for default judgment against individual defendant

Khim only (the “Motion”). (ECF No. 10).

On February 25, 2025, the Honorable Diane Gujarati, United States District Judge,

referred the Motion for Default Judgment to the undersigned for a Report and Recommendation.

(Electronic Order, dated 2/25/2025). On June 13, 2025, this Court set an Inquest Hearing for

July 15, 2025, which was adjourned until July 21, 2025 upon plaintiff’s request. (ECF Nos. 13,

15). On July 18, 2025, plaintiff requested a further adjournment of the July 21, 2025 Inquest

Hearing, explaining that plaintiff would be in South Korea until the end of August. (ECF No.

17). On July 18, 2025, the Court adjourned the Inquest Hearing sine die, noting that in light of

plaintiff’s unavailability, the Court had reviewed the Motion and attached papers and concluded

that the Inquest Hearing was not necessary. (Electronic Order, dated 7/18/2025).

For the reasons set forth below, the Court respectfully recommends that the motion for

default judgment be granted, and that plaintiff Khim be awarded (1) $224,000 in damages and

(2) $4,781.42 in counsel fees and costs, for a total of $228,781.42, plus (3) $27.62 per day in

prejudgment interest, starting on September 5, 2023, until final judgment is entered, and (4) post-

judgment interest until the judgment is paid in full.

FACTUAL BACKGROUND

According to the Complaint, defendants KMM and MM are domestic corporations doing

business in Brooklyn, New York. (Compl. ¶¶ 6, 7). Defendant Sang Kyu Khim, who resides in

New York, is alleged to be the owner of KMM and MM and exercises control over KMM and

MM’s day-to-day operations, including how employees are paid. (Id. ¶¶ 11, 12, 13).

Plaintiff alleges that beginning in September 10, 2022 until his employment ended on

August 30, 2024, he was employed by defendants as a sushi chef at KMM, a grocery store. (Id. ¶

5). According to plaintiff, he worked six days a week from 6:00 a.m. until 4:00 p.m. daily. (Id.

¶ 10). He alleges that he was paid $1,440 per week when working six days a week and $1,200

per week when he worked five days a week. (Id. ¶ 12). Plaintiff alleges that despite working

more than sixty (60) hours a week on a regular basis, he was never paid time and a half in

overtime pay for hours worked more than forty (40) in a week. (Id. ¶ 14). In addition, plaintiff

alleges that from April 20, 2024 until August 30, 2024, defendants failed to pay plaintiff any

wages at all. (Id. ¶ 13).

Plaintiff also alleges that defendants failed to provide him with wage notices or wage

statements such as pay stubs that included information as to hours worked, the applicable hourly

rate, the overtime rate, and tax withholdings. (Id. ¶¶ 16, 17).

In addition to alleging collective action claims on behalf of other similarly situated

employees, plaintiff’s Complaint contains claims of failure to pay minimum wages, in violation

of the FLSA and NYLL (Counts One and Three), failure to pay overtime wages, in violation of

the FLSA and NYLL (Counts Two and Four), claims of wage notice and wage statement

violations, in violation of NYLL §§ 195(1) and (3) (Counts Five and Six), and failure to provide

paid sick leave, in violation of NYLL § 196-b (Count Seven). (Id.)

DISCUSSION

I. Legal Standard

Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for entry of

a default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First,

the Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party’s default on

the Clerk’s record of the case. See id.; Fed R. Civ. P. 55(a) (providing that “[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”).

Second, after the Clerk of Court enters a default against a party, if that party fails to appear or

otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default

judgment. See Fed. R. Civ. P. 55(b).

The Second Circuit has cautioned that since a default judgment is an extreme remedy, it

should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981);

see also Sheet Metal, Air, Rail & Transp. Workers Loc. Union No. 127 v. Frank Torrone & Sons,

Inc., No. 14 CV 2224, 2018 WL 4771897, at *4 (E.D.N.Y. Oct. 3, 2018), adopting report and

recommendation, 2018 WL 6161655 (E.D.N.Y. Sept. 4, 2018). While the Second Circuit has

recognized the “push on a trial court to dispose of cases that, in disregard of the rules, are not

processed expeditiously [and] . . . delay and clog its calendar,” it has held that the district court

must balance that interest with its responsibility to “[afford] litigants a reasonable chance to be

heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the “oft-stated

preference for resolving disputes on the merits,” default judgments are “generally disfavored,”

and doubts should be resolved in favor of the defaulting party. Id. Accordingly, a plaintiff is not

entitled to a default judgment as a matter of right simply because a defendant is in default. See

Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (noting that

courts must “supervise default judgments with extreme care to avoid miscarriages of justice”).

The Court has significant discretion to consider a number of factors in deciding whether

to grant a default judgment, including: (1) whether the claims were adequately pleaded in the

complaint, thereby placing the defendants on notice, see Fed. R. Civ. P. 54(c) (stating “[a]

default judgment must not differ in kind from, or exceed in amount, what is demanded in the

pleadings”); King v. STL Consulting LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5

(E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding damages that

accrued during the pendency of a litigation, so long as the complaint put the defendant on notice

that the plaintiff may seek such damages); (2) “whether the grounds for default are clearly

established,” Jeremiah v. 5 Towns Jewish Times, Inc., No. 22 CV 5942, 2023 WL 6593997, at

*2 (E.D.N.Y. Aug. 9, 2023) (quoting Hirsch v. Innovation Int’l, Inc., No. 91 CV 4130, 1992 WL

316143, at *2 (S.D.N.Y. Oct. 19, 1992)); and (3) the amount of money potentially involved –

“the more money involved, the less justification for entering the default judgment.” Id.

Additionally, “the Court may consider whether material issues of fact remain, whether the facts

alleged in the complaint state a valid cause of action, whether plaintiff[s] ha[ve] been

substantially prejudiced by the delay involved, and whether the default judgment may have a

harsh effect on the defendant[s].” Pacific M. Int’l Corp. v. Raman Int’l Gems, Ltd., 888 F. Supp.

2d 385, 393 (S.D.N.Y. 2012) (internal citations omitted).

The burden is on the plaintiff to establish his entitlement to recovery. See Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506

U.S. 1080 (1993). When a default judgment is entered, the defendant is deemed to have

admitted all well-pleaded allegations in the complaint pertaining to liability, but not as to

damages. Id. Thus, the plaintiff must first establish the defendant’s liability as a matter of law,

for a defaulting defendant is not considered to have admitted to any legal conclusions. Advanced

Capital Commercial Grp., Inc. v. Suarez, No. 09 CV 5558, 2013 WL 5329254, at *3 (E.D.N.Y.

Sept. 20, 2013). It remains the plaintiff’s burden to demonstrate that the uncontroverted facts

establish the defendant’s liability on each cause of action asserted. Finkel v. Romanowicz, 577

F.3d 79, 84 (2d Cir. 2009). In doing so, however, the Court draws all “reasonable inferences

from the evidence offered” in plaintiff’s favor. Id. (quoting Au Bon Pain Corp. v. Artect, Inc.,

653 F.2d 61, 65 (2d Cir. 1981)).

After demonstrating the defendant’s liability, the plaintiff must also establish his

entitlement to damages to a “reasonable certainty.” Gunawan v. Sushi Sake Rest., 897 F. Supp.

2d 76, 83 (E.D.N.Y. 2012). While “the court must ensure that there is a basis for the damages

specified in a default judgment, it may, but need not, make the determination through a hearing.”

Fustok v. Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases),

aff’d, 873 F.2d 38 (2d Cir. 1989). In the context of a default judgment brought for violations of

the FLSA and the NYLL, “the plaintiff’s recollection and estimates of hours worked are

presumed to be correct.” Gunawan v. Sushi Sake Rest., 897 F. Supp. 2d at 84-84.

II. Liability

In this case, plaintiff alleges that defendant violated the FLSA and the NYLL by failing

to pay minimum wage and overtime wages, sick pay, and wage statements and notices.2 Each of

these claims is addressed below.

A. FLSA Claims

To establish a claim under the FLSA, a plaintiff must prove the following: (1) the

defendant is an enterprise participating in commerce or the production of goods for the purpose

of commerce; (2) the plaintiff is an “employee” within the meaning of the FLSA; and (3) the

employment relationship is not exempted from the FLSA. Edwards v. Community Enters., Inc.,

251 F. Supp. 2d 1089, 1098 (D. Conn. 2003) (citing 29 U.S.C. §§ 206(a), 207(a)); see also Tony

& Susan Alamo Found. v. Secretary of Lab., 471 U.S. 290, 295 (1985).

2 Plaintiff alleges class claims in connection with his FLSA claims. (See Compl.). However, as plaintiff

moves for default judgment individually, the Court does not address the class claims.

1. Employer Subject to FLSA3

As to the first requirement, a defendant is an “[e]nterprise engaged in commerce or in the

production of goods for commerce” if the defendant is an enterprise that:

has employees engaged in commerce or in the production of goods

for commerce, or that has employees handling, selling, or

otherwise working on goods or materials that have been moved in

or produced for commerce by any person; and . . . [whose] annual

gross volume of sales made or business done is not less than

$500,000.

29 U.S.C. § 203(s)(1)(A). In the Complaint, plaintiff alleges that the corporate defendants are

“enterprise[s] engaged in interstate commerce as defined by § 203(r) and (s) of the FLSA.”

(Compl. ¶¶ 6, 7). Plaintiff further alleges that, at all relevant times, the corporate defendants had

annual gross volume business done in an amount not less than $500,000. (Id.) In the context of

a default under the FLSA, courts do not require any additional factual allegations to establish

enterprise coverage. See, e.g., Fermin v. Las Delicias Peruanas Rest. Inc., 93 F. Supp. 3d 19, 33

(E.D.N.Y. Mar. 19, 2015) (finding a complaint which simply restated the statutory definition to

be sufficient because it was “reasonable to infer that the myriad goods necessary to operate a . . .

restaurant with an eat-in dining area and over $500,000.00 in annual sales do not exclusively

come from New York State”). Thus, taking these allegations as true, the Court finds that

plaintiff has established that the two corporate defendants qualify as an employer under the

FLSA.

2. Individual Employer Doctrine

This action was brought against the corporate entities and the individually named

defendant Khim. As for defendant Khim, plaintiff alleges that Khim is the owner of the

3 Although the Motion is for entry of default judgment against individual defendant Khim only, in order to

establish that Mr. Khim is subject to the FLSA as owner of the corporate defendants, the Court must evaluate

whether the corporate defendants meet the definition of an “employer” under the FLSA.

corporate defendants and “exercised sufficient control over the corporate defendants’ day-to-day

operations, including, but not limited to, how employees are paid, to be considered an

‘employer’” under the FLSA. (Compl. ¶ 8).

Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest

of an employer in relation to an employee . . .” 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.” 29 U.S.C. § 203(a). To “employ” means “to suffer or permit to

work.” 29 U.S.C. § 203(g). An individual may be liable as an employer under the FLSA so long

as he exercises “operational control” over the employee in question. See Irizarry v. Catsimatidis,

722 F.3d 99, 110 (2d Cir. 2013), and individuals who are found to be “employers” under the

FLSA may be held jointly and severally liable to the plaintiff. Moon v. Kwon, 248 F. Supp. 2d

201, 237 (S.D.N.Y. 2002); see also Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114,

128 (E.D.N.Y. 2011).

Based on the allegations in the Complaint regarding defendant Khim, plaintiff has

adequately alleged the elements necessary to state a claim against him as an “employer,” and

thus, the corporate defendants and defendant Khim would be jointly and severally liable for any

wage violations.

3. Employees Within FLSA

The FLSA defines an “employee” as “any individual employed by an employer.” 29

U.S.C. § 203(e)(1); Edwards v. Community Enters., Inc., 251 F. Supp. 2d at 1098. The FLSA

covers both “employees who in any workweek [are] engaged in commerce or in the production

of goods for commerce” and those persons who are “employed in an enterprise engaged in

commerce or in the production of goods for commerce[.]” 29 U.S.C. § 206(a). In determining

whether a plaintiff is an “employee” within this definition, the “ultimate question is . . . ‘whether

as a matter of economic reality, the worker[] depend[s] upon someone else’s business for the

opportunity to render service or [is] in business for [himself].’” Velu v. Velocity Exp., Inc., 666

F. Supp. 2d 300, 306 (E.D.N.Y. 2009) (quoting Godoy v. Restaurant Opportunity Ctr. of New

York, Inc., 615 F. Supp. 2d 186, 192-93 (S.D.N.Y. 2009)).

Plaintiff alleges in the Complaint that he was employed by the defendants as a sushi chef

at KMM. (Compl. ¶ 5). Plaintiff also alleges that the individual defendant is the owner of the

corporate defendants and exercised control over employees’ pay. (Id. ¶ 8). Thus, based on the

allegations in the Complaint, plaintiff qualifies as an “employee” and Mr. Khim qualifies as his

“employer” under the FLSA. The Court does not find any basis for exempting the employment

relationship at issue from coverage under the FLSA.4 See 29 U.S.C. § 213(a) (setting forth the

exemptions under the FLSA).

4. Wage Claims

Plaintiff’s Motion claims damages under the FLSA for unpaid wages and overtime. (See

Pl.’s Mem.5 at 7-8). The Court must consider whether these FLSA claims were adequately

pleaded. First, plaintiff alleges that he was not paid at all for the period from April 20, 2024, to

August 30, 2024. (Compl. ¶ 13). Plaintiff argues that he is entitled to unpaid wages for this

period at his regular rate of pay for his hours worked up to 40 in a workweek. (See Pl.’s Mem. at

8). Plaintiff alleges he was paid a weekly wage of $1,440 for the weeks he worked six days a

4 The Court notes that the burden of demonstrating that an employee falls within one of these exempted

categories rests squarely with the employer. Chen v. Major League Baseball, 6 F. Supp. 3d 449, 454 (S.D.N.Y.

2014) (noting that the exemptions are affirmative defenses which an employer must prove). Since defendant Khim

has failed to appear in this action, he has not availed himself of any of the affirmative defenses provided for in the

statute.

5 Citations to “Pl.’s Mem.” refer to Plaintiff’s Memorandum of Law in Support of His Motion for Default

Judgment, dated February 21, 2025 (ECF No. 10).

week (Compl. ¶ 12), which amounts to a rate of $36 an hour, calculated by dividing $1,440 by

40 hours a week.6 (Pl.’s Mem. at 8); see also 29 U.S.C. § 207.

Plaintiff is not entitled to unpaid wages at his regular rate under the FLSA, as the “FLSA

statute requires payment of minimum wages and overtime wages only, . . .” Nakahata v. New

York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013) (citing 29 U.S.C. §

201-19 (2006)); see also Kinkead v. Humana at Home, Inc., 450 F. Supp. 3d 162, 182 (D. Conn.

2020) (holding that the FLSA “does not provide a cause of action” for unpaid wages at a regular

rate above the FLSA minimum wage). In addition, as plaintiff’s regular hourly rate of $36 is

higher than the FLSA minimum hourly wage of $7.25, plaintiff is not entitled to any unpaid

wages under the FLSA, with the exception of the period from April 20, 2024 to August 30, 2024,

when he was not paid at all. 29 U.S.C. § 206(a)(1)(C).

Plaintiff alleges that there was a period of time when he was not paid anything at all and

he seeks unpaid minimum wages under the FLSA in his Complaint for this period of time.

(Compl., Prayer for Relief). Given that plaintiff claims he was not paid at all for this period of

time, the Court finds he has stated a claim for a violation of the FLSA’s minimum wage

provision.

Plaintiff further claims that he is owed overtime wages under the FLSA. (Pl.’s Mem. at

8). The FLSA provides that “no employer shall employ any of his [covered] employees . . . for a

workweek longer than forty hours unless such employee receives compensation for his

6 Plaintiff alleges that he was paid “$1,200 per week when he worked 5 days, and $1,440 per week when he

worked 6 days.” (Compl. ¶ 12). However, the Complaint also alleges he worked from 6:00 a.m. to 4 p.m. “for 6

days per week.” (Id. ¶ 9). Given that plaintiff verified in his Declaration that he consistently worked 6 days per

week, the Court credits this testimony and applies his stated $1,440 weekly rate and schedule of six days per week to

the Court’s evaluation of liability and damages. (ECF No. 10-2 ¶ 11 (“Pl.’s Decl.”)). In addition, the Complaint and

plaintiff’s Declaration state different daily schedules, but both allege that he worked 10 hours a day. (Compl. ¶ 10-

11; Pl.’s Decl. ¶¶ 12-13). Given that plaintiff does not speak English fluently (Pl.’s Decl. ¶ 28), the Court does not

find this discrepancy material to evaluating defendant’s liability or plaintiff’s entitlement to damages, given that

defendant was on notice of plaintiff’s allegation that he worked 10 hours a day.

employment in excess of the hours above specified at a rate not less than one and one-half times

the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Overtime is calculated at a

rate of one and one-half times the employee’s regular hourly pay for work performed in excess

of 40 hours per week. Id. “[I]n order to state a plausible FLSA overtime claim, a plaintiff must

sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in

excess of the 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114

(2d Cir. 2013).

In the Complaint, plaintiff alleges that during his employment he worked six days a week

for 10 hours a day, which amounts to 60 hours a week, or 20 hours of overtime per week. (See

Compl. ¶¶ 10, 11). Plaintiff alleges that defendants did not pay overtime wages for hours

worked over 40 per week. (Id. ¶ 14). These allegations meet the specificity requirements set

forth in Lundy. Thus, plaintiff has stated a claim of overtime violations under the FLSA.

Finally, the statute of limitations under the FLSA is two years, or three years where

defendants’ violations of the FLSA were willful. 29 U.S.C. § 255(a). Plaintiff alleges that

defendants’ violations of the FLSA were willful. (Compl. ¶ 27). Moreover, defendants who

default are considered to have committed “willful” violations, and the three-year statute of

limitations applies. See Rodriguez v. Queens Convenience Deli Corp., No. 09 CV 1089, 2011

WL 4962397, at *2 (E.D.N.Y. Oct. 18, 2011). Crediting plaintiff with a three-year statute of

limitations, plaintiff has adequately pled FLSA claims for the duration of his employment, since

his claims accrued on September 10, 2022 when he began working, which is after the three-year

statute of limitations began on October 24, 2021, three years before plaintiff filed the Complaint.

(Compl. ¶ 9).

B. NYLL Claims

Plaintiff also alleges that defendants violated provisions of the NYLL related to minimum

wages and overtime wages, wage notices and wage statements, and sick leave. (Compl. ¶¶ 35-

40, 41-46, 47-54, 55-66).

1. Coverage

In order to recover under the NYLL, plaintiff must prove that he was an “employee” and

that the defendants were “employers” as defined by the statute. Lauria v. Heffernan, 607 F.

Supp. 2d 403, 407-08 (E.D.N.Y. 2009). Unlike the FLSA, the NYLL does not require that a

defendant achieve a certain minimum in annual sales or business in order to be subject to the

law. See N.Y. Lab. L. § 651(6) (defining employer as “any individual, partnership, association,

corporation, limited liability company, business trust, legal representative, or any organized

group of persons acting as employer”). In making these determinations, New York courts focus

on the degree of control the alleged employer exercised over the alleged employee, analyzing

whether the employee: “(1) worked at his own convenience; (2) was free to engage in other

employment; (3) received fringe benefits; (4) was on the employer’s payroll; and (5) was on a

fixed schedule.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d at 34 (quoting

Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 695, 802 N.E.2d 1090, 1095

(2003)). Any parties found to be employers under the NYLL are jointly and severally liable to

plaintiff. See Tacuri v. Nithun Constr. Co., 14 CV 2908, 2015 WL 790060, at *4-5 (E.D.N.Y.

Feb. 24, 2015); Karic v. Major Automotive Cos., 992 F. Supp. 2d 196, 200 (E.D.N.Y. 2014).

As set forth above, plaintiff alleges that during the relevant period of time, defendant

Khim was the owner of the corporate defendants, and exercised control over their day-to-day

operations, including controlling how employees are paid. (Compl. ¶ 8). In addition, plaintiff

alleges that defendant Khim was plaintiff’s employer within the meaning of “all applicable

statutes.” (Id.)

Similarly, under the New York Labor Law, an employee is defined as “any individual

employed or permitted to work by an employer in any occupation.” N.Y. Lab. L. § 651(5). In

this case, plaintiff alleges that at all relevant times, he was defendants’ employee within the

meaning of “all applicable statutes.” (Compl. ¶ 5). The allegations set forth in plaintiff’s

Complaint, as outlined above, clearly establish that plaintiff was an employee of defendant

Khim.

Accordingly, based on these uncontested allegations, the Court finds plaintiff has

adequately alleged Mr. Khim was his employer and he was an employee under the NYLL.

2. Minimum Wage and Overtime Claims

The NYLL and the FLSA are analytically nearly identical with respect to minimum wage

and overtime claims. D’Arpa v. Runway Towing Corp., No. 12 CV 1120, 2013 WL 3010810, at

*18 (E.D.N.Y. June 18, 2013). Like the FLSA, the NYLL establishes certain minimum wage

rates and requires that employees be compensated at an overtime rate of one-and-one-half times

their regular hourly pay for time worked in excess of 40 hours in a week. See N.Y. Lab. L. §

160; 12 N.Y.C.R.R. § 142-2.2; see also Noble v. 93 Univ. Place Corp., 303 F. Supp. 2d 365, 376

(S.D.N.Y. 2003). However, “[u]nlike the FLSA, the NYLL does allow for recovery of unpaid

wages at “the agreed-upon rate, even if it exceeds the minimum wage.” Shetty v. SG Blocks,

Inc., No. 20 CV 550, 2020 WL 3183779, at *5 (E.D.N.Y. June 15, 2020) (quoting Kernes v.

Global Structures, LLC, No. 15 CV 659, 2016 WL 880199, at *3 (S.D.N.Y. Mar. 1, 2016)). This

claim for unpaid wages at the agreed-upon rate falls under Article 6 of the NYLL. See N.Y. Lab.

L. §§ 191(1)(a)(i), 191(1)(d) (stating that workers “shall be paid . . . in accordance with the

agreed terms of employment”). Courts that find liability for unpaid wages at the regular rate do

so when the plaintiff specifically alleges a violation of Section 191 or under Article 6 generally.

Ferreira v. Brooklyn’s Constrs. & Desings Inc., No. 22 CV 3796, 2024 WL 5386542, at *11-12

(E.D.N.Y. Mar. 15, 2024) (finding that plaintiff who brought unpaid wage claim “under Article

6” was entitled to their regular rate for unpaid wages rather than minimum wage); Cavalotti v.

Daddyo’s BBQ, Inc., No. 15 CV 6469, 2018 WL 5456654, at *12-14 (E.D.N.Y. Sept. 8, 2018)

(finding that plaintiff was entitled to unpaid wages at the agreed-upon rate where she alleged a

violation of NYLL § 191).

In his Motion, plaintiff requests unpaid wages at his regular rate for the hours worked up

to 40 per week during the period in which he alleges he was not paid at all. (Pl.’s Mem. at 7-8).

However, plaintiff’s Complaint only alleges NYLL unpaid wage claims for minimum wage and

overtime violations. (See Compl. ¶¶ 35-46). As to his minimum wage claim, plaintiff alleges in

his Complaint that defendants failed to pay him “the prevailing minimum wage for all hours”

under NYLL § 650, et seq. (Compl. ¶¶ 1, 37). Plaintiff does not cite to Section 191 of the

NYLL or otherwise refer to this provision anywhere in his Complaint, nor does he invoke Article

6 in the context of his unpaid wage claim. The prevailing minimum wage under the NYLL

during the time plaintiff claims he was totally unpaid was $16 an hour, which is less than

plaintiff’s regular hourly rate of $36. See N.Y. Lab. L. § 652. Since plaintiff alleges that he was

not paid anything for certain weeks of work, the Court finds that plaintiff has adequately alleged

a violation of the NYLL minimum wage provision, but for the reasons stated above, he has not

alleged a violation of the NYLL agreed-upon rate provision.

To the extent plaintiff claims overtime violations for his hours worked over 40 in a week,

the Court finds plaintiff has adequately alleged NYLL violations for the same reasons as

discussed above regarding those claims under the FLSA.

3. Sick Pay

Plaintiff also alleges a violation of NYLL § 196-b, the sick leave provision. (Compl. ¶¶

55-66). Specifically, plaintiff alleges that defendants were required under the statute to

“maintain a policy” regarding paid time off (“PTO”) for all employees, and that earned PTO

must be paid out to departing employees unless the written policy specifies otherwise. (Id. ¶¶

57-58 (citing Glenville Gage Co., Inc. v. Industrial Bd. of Appeals of the State of New York,

Dept. of Labor, 70 A.D.2d 283, 421 N.Y.S.2d. 408 (3rd Dep’t 1979))). Plaintiff alleges that

defendants’ PTO policies required this payout or were silent on the issue, and that defendants did

not pay out PTO to plaintiff when he departed from employment. (Id. ¶¶ 59-60).

However, as plaintiff notes in the Complaint, the amount of PTO a plaintiff is entitled to

depends upon the number of employees the employer has in a given calendar year. N.Y. Lab. L.

§ 196-b. For instance, employers with four or fewer employees are only required to provide their

employees with unpaid sick leave; it is unclear from the statute to what extent such unpaid leave

must be paid out to employees. Id. § 196-b(a). Plaintiff does not allege the number of

employees defendants had during his period of employment nor which sick leave policy he is

entitled to under the statute. Most importantly, plaintiff does not even allege that he accrued

unused PTO during his employment that would entitle him to a payout. Thus, on the face of the

pleading, even if defendant Khim were required to provide plaintiff with PTO, plaintiff could

have utilized all this PTO and thus defendant would not be in violation of the statute for failing

to provide plaintiff a payout at the end of his employment. While plaintiff’s Declaration,

submitted with his Motion for default judgment, does provide information on the number of

defendants’ employees and states that defendants did not provide him with paid sick leave during

his employment (Pl.’s Decl. ¶¶ 25-27), this is insufficient. Plaintiff’s Complaint itself must put

defendant Khim on notice that plaintiff may have a viable claim for sick leave under the statute

in order to adequately assess his defense, if any, to these claims. See Fed. R. Civ. P. 54(c)

(providing that a “default judgment must not differ in kind from, or exceed in amount, what is

demanded in the pleadings”).

Plaintiff has not provided enough information in his Complaint for the Court to determine

whether and to what extent he is entitled to the NYLL’s sick leave provision. Thus, the Court

respectfully recommends that the district court find that plaintiff has not adequately alleged

defendants’ liability under NYLL § 196-b.

4. Wage Theft Prevention Act Claims

The Wage Theft Prevention Act (“WTPA”), NYLL §§ 195(1) and 195(3), requires that

employers provide employees with notices regarding their wages at the time of their hiring and

wage statements with each payment of wages. The notice must contain the rate or rates of pay,

whether the employee was to be paid by the hour, shift, day, or week, any allowances claimed as

part of the minimum wage, the regular pay day, the name of the employer, the physical address

of the employer’s main office, and the employer’s telephone number in both English and the

employee’s primary language, if different from English. Id. § 195(1)(a). The wage statement

must include “the dates of work covered by that payment of wages; name of employee; name of

employer; address and phone number of employer; rate or rates of pay and basis thereof, whether

paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions;”

and certain allowances. Id. § 195(3).

The Supreme Court explained in TransUnion LLC v. Ramirez, 594 U.S. 413, 426 (2021),

that “Congress’s creation of a statutory prohibition or obligation and a cause of action does not

relieve courts of their responsibility to independently decide whether a plaintiff has suffered a

concrete harm under Article III.” The Supreme Court clarified that “[o]nly those plaintiffs who

have been concretely harmed by a defendant’s statutory violation may sue that private defendant

over that violation in federal court.” Id. at 427. Applying TransUnion to WTPA claims, the

Second Circuit in Guthrie v. Rainbow Fencing Inc. recently declared that in order to bring a

claim under Section 195 of the NYLL, “a plaintiff must show some causal connection between

the lack of accurate notices and the downstream harm.” 113 F.4th 300, 308 (2d Cir. 2024).

Thus, after Guthrie, alleging only a statutory violation of the WTPA is insufficient. Plaintiffs

sufficiently allege an injury-in-fact when they claim, for example, that the failure to notify

“prevented the employee from obtaining full payment of wages in a timely fashion.” Id. at 309.

Here, plaintiff’s Complaint simply alleges that defendants failed to provide wage notices

and wage statements to plaintiff. (Compl. ¶¶ 49, 53). Plaintiff’s Complaint does not identify any

specific harm that flowed from defendants’ failure to comply with the NYLL. (See id. ¶¶ 47-54).

While plaintiff’s Declaration, submitted with his Motion, alleges downstream harm in

connection with these claims (Pl.’s Decl. ¶¶ 19-24), this is insufficient for the reasons stated

above. Fed. R. Civ. P. 54(c)); see also Darwish v. Pompeo, No. 18 CV 1370, 2020 WL 7049436,

at *11 (W.D.N.Y. Aug. 19, 2020) (holding that plaintiff’s “statement in a memorandum of law is

insufficient to meet his burden” to plead jurisdictional issue). Plaintiff thus does not have

standing to bring these claims and has not adequately pleaded his notice and wage statement

claims.

III. Remedy

A. Default Determination

Based upon a review of the allegations in the Complaint, which are undisputed at this

time, and for the reasons stated herein, the Court finds that plaintiff has sufficiently established

liability to warrant entry of a default judgment for damages for his FLSA and NYLL minimum

wage and overtime claims only.7

Here, it is beyond dispute that defendant Khim is in default. Defendant Khim failed to

appear and answer or otherwise respond to the Complaint. See Hirsch v. Innovation Int’l, Inc.,

1992 WL 316143, at *2 (holding that “[defendant’s] default is crystal clear – it does not even

oppose this motion [for entry of default judgment]”).

Here, defendant’s failure to respond to the Complaint warrants the entry of a default

judgment. Given the numerous opportunities afforded to defendant, and his failure to participate

in these proceedings, the Court finds no compelling reason to delay further. Accordingly, it is

respectfully recommended that default judgment be entered against defendant Khim.

B. Damages

1. Legal Standard

Having determined that plaintiff has established that all defendants are liable for damages

flowing from FLSA and NYLL violations, the Court now must determine whether plaintiff has

established his damages to a “reasonable certainty.” Gunawan v. Sushi Sake Rest., 897 F. Supp.

2d at 83. As noted supra, when a default judgment is entered, the defendants are deemed to have

admitted all well-pleaded allegations in the Complaint pertaining to liability. See Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158; Montcalm Publ’g Corp. v. Ryan,

807 F. Supp. 975, 977 (S.D.N.Y. 1992) (citing United States v. Di Mucci, 879 F.2d 1488, 1497

(7th Cir. 1989); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65; Deshmukh v. Cook, 630 F.

Supp. 956, 959-60 (S.D.N.Y. 1986)). However, the plaintiff must still prove damages in an

7 Should plaintiff wish to pursue his NYLL agreed-upon wage, WTPA, and/or sick leave claims, he may

opt to abandon his Motion here and instead file an Amended Complaint properly alleging these claims and serve it

upon defendants. Should defendants default on the Amended Complaint, at that point, plaintiff may file a renewed

motion for default judgment.

evidentiary proceeding at which the defendants have the opportunity to contest the claimed

damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158. “‘While

a default judgment constitutes an admission of liability, the quantum of damages remains to be

established by proof unless the amount is liquidated or susceptible of mathematical

computation.’” Levesque v. Kelly Commc’ns, Inc., No. 91 CV 7045, 1993 WL 22113, at *4

(S.D.N.Y. Jan. 25, 1993) (quoting Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)).

When a court enters a default judgment and the amount of damages sought does not

consist of a sum certain, Rule 55(b) of the Federal Rules of Civil Procedure provides that “[t]he

Court may conduct hearings or make referrals – preserving any federal statutory right to a jury

trial – when, to enter or effectuate judgment, it needs to . . . determine the amount of damages.”

Fed. R. Civ. P. 55(b)(2)(b). While “the court must ensure that there is a basis for the damages

specified in a default judgment, it may, but need not, make the determination through a hearing.”

Fustok v. Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases),

aff’d, 873 F.2d 38 (2d Cir. 1989).

In this case, defendant Khim has not answered the Complaint or appeared before the

Court. Since defendant is in default, plaintiff’s evidence on damages is undisputed. As an initial

matter, plaintiff’s Declaration and submissions as to the hours worked and rate of pay received

are sufficient bases for this Court to recommend an award of damages, even in the absence of

further documentation.

Under the FLSA, an employee-plaintiff generally “has the burden of proving that he

performed work for which he was not properly compensated.” Santillan v. Henao, 822 F. Supp.

2d 284, 293-94 (E.D.N.Y. 2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

687 (1946), superseded on other grounds by 29 U.S.C. § 251, et seq.). The Supreme Court in

Anderson v. Mt. Clemens Pottery Co. noted, however, that “employees seldom keep . . . records

[of hours worked] themselves; even if they do, the records may be and frequently are

untrustworthy.” 328 U.S. at 687. By defaulting, defendants have “deprived the plaintiff of the

necessary employee records required by the FLSA, thus hampering plaintiff’s ability to prove his

damages.” Santillan v. Henao, 822 F. Supp. 2d at 294. In default cases, the Supreme Court has

held that “an employee has carried out his burden if he proves that he has in fact performed work

for which he was improperly compensated and if he produces sufficient evidence to show the

amount and extent of that work as a matter of just and reasonable inference.” Tran v. Alphonse

Hotel Corp., 281 F.3d 23, 31 (2d Cir. 2002) (quoting Anderson v. Mt. Clemens Pottery Co., 328

U.S. at 687), overruled on other grounds, Slayton v. American Express Co., 460 F.3d 216 (2d

Cir. 2006).

In light of this holding, courts in this Circuit have held that where a defendant-employer

defaults, a plaintiff may meet this burden of proof “by relying on his recollection alone.” Doo

Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005). Otherwise, defendants in

FLSA cases would stand to benefit from choosing not to cooperate with discovery or litigation

efforts, and “[o]ne should not be permitted to profit by its own wrongful act.” Boyke v. Superior

Credit Corp., No. 01 CV 0290, 2006 WL 3833544, at *5 (N.D.N.Y. Dec. 28, 2006) (citing 29

U.S.C. § 211(c), which requires that employers “make, keep, and preserve . . . records of the

persons employed by him and of the wages, hours, and other conditions and practices of

employment”); see also Park v. Seoul Broad. Sys. Co., No. 05 CV 8956, 2008 WL 619034, at *7

(S.D.N.Y. Mar. 6, 2008) (holding that courts should apply a “special burden-shifting standard”

where employers fail to comply with this statutory duty of record keeping).

New York law also requires that employers keep various, detailed employment records.

Like the FLSA, the NYLL requires that employers keep employment records in their course of

business relating to employees’ rates of pay, hours, dates of work, and payroll, among other

information. See N.Y. Lab. L. § 195(1)(a) (requiring an employer to “provide his or her

employees, in writing . . . a notice containing . . . the rate or rates of pay thereof, whether paid

by the hour, shift, day, week, salary, piece, commission, or other allowances”); N.Y. Lab. L. §

195(2) (requiring employers to notify employees of any changes in the pay day prior to changing

the pay day); N.Y. Lab. L. § 195(3) (employers must “furnish each employee with a statement

with every payment of wages, listing . . . the dates of work . . . gross wages; deductions;

allowances, if any claimed as part of the minimum wage; and net wages”); N.Y. Lab. L. § 195(4)

(requiring employers to “establish, maintain[,] and preserve for not less than three years payroll

records showing the hours worked, gross wages, deductions and net wages for each employee”).

Thus, where the defendants have failed to maintain proper records, the burden of proving that

plaintiff was paid properly falls on the defendants. See Marin v. JMP Restoration Corp., No. 09

CV 1384, 2012 WL 4369748, at *6 (E.D.N.Y. Aug. 24, 2012) (explaining that “[t]o determine

NYLL overtime damages, courts use the same burden-shifting scheme employed in FLSA

actions”).

Thus, under both federal and state laws, defendant-employers have an obligation to keep

records, and by virtue of defendants’ default, plaintiff’s “recollection and estimates of hours

worked are presumed to be correct.” Liu v. Jen Chu Fashion Corp., No. 00 CV 4221, 2004 WL

33412, at *3 (S.D.N.Y. Jan. 7, 2004); accord Chao v. Vidtape, 196 F. Supp. 2d 281, 293-94

(E.D.N.Y. 2002). Courts have applied this same presumption of correctness to a plaintiff’s

recollection of wages earned. See, e.g., Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d at 84.

Here, because defendant Khim did not meet his obligation to provide plaintiff with

records, the only evidence offered to support plaintiff’s claim that he was paid less than he was

entitled to under the law is based on plaintiff’s statements. Given that the defendant has not

appeared in this action to challenge plaintiff’s claims, the Court finds plaintiff’s evidence as to

hours worked and wages paid credible, and bases its recommendation on plaintiff’s recollection.

1. Unpaid Wages

Plaintiff Park alleges violations of the FLSA and NYLL based on defendants’ failure to

pay any wages at all from the period of April 20, 2024 through August 30, 2024, and based on

defendants’ failure to pay overtime wages for the entire period of his employment. (See

generally Compl.; Pl.’s Mem. at 8). In his request for default judgment, plaintiff seeks a total of

$27,360 in unpaid regular wages and $111,240 in unpaid overtime wages. (See Pl.’s Mem. at 8;

Dmgs. Chart8).

While a defendant’s failure to pay minimum wages and overtime violates both the FLSA

and the NYLL, a plaintiff may only recover damages under one statute, as “double recovery of

the same wages and related damages is not permitted.” Gonzales v. Gan Israel Pre-Sch., No. 12

CV 6304, 2014 WL 1011070, at *11 (E.D.N.Y. Mar. 14, 2014). Courts will thus award damages

under whichever statute would allow for greater recovery.9 Id.

Under both the FLSA and NYLL, an employee is entitled to overtime pay for hours

worked in excess of 40 hours in one work week. See 29 U.S.C. § 207(a)(2)(C); N.Y. Lab. L. §

232; 12 N.Y.C.R.R. § 146-1.4. The method for calculating overtime under both the FLSA and

8 Citations to “Dmgs. Chart” refer to plaintiff’s damages calculations chart submitted as an exhibit to his

supplemental letter in support of his Motion for default judgment, filed on June 6, 2025 (ECF No. 11-1).

9 Given that the minimum wage rates under the NYLL were uniformly higher than the federal minimum

wage rate of $7.25 in effect during the period of plaintiff’s employment, the Court is recommending an award under

the NYLL because it provides for a greater degree of recovery.

NYLL is the same. Although plaintiff was not paid overtime in violation of both the FLSA and

the New York Labor Law, he is not entitled to recover double damages under both the FLSA and

the NYLL. See Janus v. Regalis Constr., Inc., 11 CV 5788, 2012 WL 3878113, at *7 (E.D.N.Y.

July 23, 2012), report and recommendation adopted, 11 CV 5788, 2012 WL 3877963 (E.D.N.Y.

Sept. 4, 2012).

The FLSA states that overtime pay should be calculated based on one and a half times the

employee’s regular rate of pay or the minimum wage, whichever is greater. See 29 U.S.C. §

207; 29 C.F.R. § 778.107. New York law also requires that employees be compensated at “one

and one-half times the employer’s regular rate of pay” and provides that the regular rate should

be calculated “in the manner and methods provided in” the FLSA. 12 N.Y.C.R.R. § 142-2.2.

The Code of Federal Regulations explains that the term “regular rate of pay” should be

interpreted to mean the higher of the employee’s hourly rate and minimum wage under either

state or federal law: “Where a higher minimum wage than that set in the Fair Labor Standards

Act is applicable to an employee by virtue of such other legislation, the regular rate of the

employee, as the term is used in the Fair Labor Standards Act, cannot be lower than such

applicable minimum, for the words ‘regular rate at which he is employed’ as used in section 7

must be construed to mean the regular rate at which he is lawfully employed.” 29 C.F.R. §

778.5; see Santana v. Latino Express Rests., Inc., No. 15 CV 4934, 2016 WL 4059250, at *4

(S.D.N.Y. July 28, 2016) (calculating overtime wages due to plaintiff under both the FLSA and

NYLL by using the state minimum wage rate: “During Plaintiff’s employment at the Restaurant,

the New York minimum wage rate was $8.75 per hour. Plaintiff’s overtime rate was one and

one-half times her normal wage rate of $8.75, or $13.125”); Rodriguez v. Almighty Cleaning,

Inc., 784 F. Supp. 2d at 126 (holding that “[u]npaid overtime wages are calculated by

multiplying the New York minimum wage rate or the FLSA minimum wage rate, whichever is

higher, by 0.5 to determine the additional amount owed per hour over 40 hours worked”).

a) Unpaid Wages from April 20, 2024 through August 30, 2024

Plaintiff alleges that he was not paid at all for the period from April 20, 2024 through

August 30, 2024, and that he is entitled to unpaid straight time and unpaid overtime for this

period. (Compl. ¶ 13; Pl.’s Decl. ¶ 14; Dmgs. Chart). Plaintiff argues that he is entitled to

$27,360 in unpaid wages for the hours worked up to 40 hours a week during this time period.

(Pl.’s Decl. ¶ 14; Pl.’s Mem. at 8). Plaintiff appears to calculate this number by multiplying the

19 weeks he worked during this time period by his alleged weekly regular rate of pay, or $1,440.

(See Dmgs. Chart). In addition, plaintiff argues that he is owed overtime during this period for

the 20 hours he worked over 40 hours each week. Plaintiff calculates his overtime rate by taking

his alleged weekly regular rate, $1,440, and dividing it by 40 hours a week for an hourly rate of

$36, then multiplying that $36 rate by one and a half for an hourly overtime rate of $54. (Pl.’s

Mem. at 8).

However, as explained supra, plaintiff did not adequately allege under NYLL § 191 that

he is entitled to the rate of pay agreed upon with his employer. Thus, as to his unpaid straight

time wages for hours worked up to 40 in a workweek, plaintiff is entitled to the NYLL minimum

wage. The NYLL minimum wage for New York City during the time period in which plaintiff

was not paid at all was $16 an hour. N.Y. Lab. L. § 652(1-a)(a) (stating that the minimum wage

in New York City starting on January 1, 2024 and ending December 31, 2024 was $16 an hour).

Thus, plaintiff is entitled to $16 an hour for 40 hours a week, or $640 per week, multiplied by the

19 weeks he alleges defendants did not pay him at all, which amounts to $12,160 total.

As to plaintiff’s overtime during this period, plaintiff is similarly not entitled to an

overtime calculation based on the rate he alleges was agreed upon with his employer. Under the

New York Hospitality Industry Wage Order, an overtime rate based on an employee’s “regular

rate” of pay is calculated by “dividing the employee’s total weekly earnings . . . by the lesser of

40 hours or the actual number of hours worked by that employee during the work week” and

then multiplying that number by one and a half. See 12 N.Y.C.R.R. §§ 146-3.5(b), 1.4. Given

that plaintiff alleges he had no weekly earnings for this period of time, and absent an allegation

that plaintiff is entitled to his agreed-upon rate under NYLL § 191, there is no basis for the Court

to calculate plaintiff’s overtime for this period based on his alleged $1,440 weekly rate.

However, plaintiff is at least entitled to overtime wages based on the NYLL minimum wage rate,

representing $16 multiplied by one and a half, for an hourly overtime rate of $24. According to

plaintiff Park’s Declaration, he worked a total of 10 hours a day, times six days a week for a total

of 60 hours worked per week in total. (Pl.’s Decl. ¶¶ 11, 13). Thus, since plaintiff alleges he

worked 20 hours of overtime per week for this 19-week period, plaintiff is entitled to $9,120 in

overtime wages for this period, calculated by multiplying the $24 hourly overtime rate times 20

hours a week times 19 weeks.

Accepting plaintiff Park’s unchallenged representations as to the hours he worked and the

pay received during this time period, the Court finds that plaintiff is owed $21,280 in unpaid

wages for the time period between April 20, 2024 and August 30, 2024, representing $12,160 in

minimum wages and $9,120 in overtime wages. The Court respectfully recommends that

plaintiff be awarded $21,280 in unpaid wages for this time period.

b) Unpaid Overtime Wages from September 10, 2022 through

April 19, 2024

From the first day of plaintiff’s employment, September 10, 2022, through April 19,

2024, plaintiff alleges that he was not paid overtime for the hours he worked in excess of 40

hours a week. (See Compl. ¶ 14; Pl.’s Decl. ¶ 15; Dmgs. Chart). As explained supra, during this

time period, plaintiff alleges he was actually paid $1,440 a week working six days a week. (See

Compl. ¶ 12; Pl.’s Decl. ¶¶ 10, 13, 15; Dmgs. Chart).10 Under the New York Hospitality

Industry Wage Order, given that plaintiff was paid $1,440 weekly during this time period,

plaintiff’s regular rate of pay is calculated by dividing $1,440 by 40 hours of work, producing a

regular rate of $36 an hour. 12 N.Y.C.R.R. §§ 146-3.5(b); (Pl.’s Mem. at 8). Since the

minimum wage rates under both the NYLL and FLSA were always less than plaintiff’s regular

rate of pay for this period, the Court respectfully recommends that he be awarded overtime pay

based on his regular rate of pay. Thus, plaintiff’s overtime rate of pay of $54 per hour is based

on one and a half times the $36 per hour rate that he received throughout the period.

During this period, as with the period between April 20, 2024 through August 30, 2024,

plaintiff alleges he worked 60 hours a week, amounting to 20 overtime hours a week. (Pl.’s

Decl. ¶ 13). Thus, he is entitled to receive overtime pay for 20 hours per week calculated at the

rate of $54 per hour. This results in an award of overtime pay of $1,080 per week owed to

plaintiff. Thus, plaintiff is entitled to $90,720 in overtime wages during this period, representing

$1,080 per week for each of the 84 weeks worked between September 10, 2022, and April 19,

2024.

Thus, accepting plaintiff Park’s unchallenged representations as to the hours he worked

and the pay received, the Court finds that plaintiff is owed $90,720 in unpaid overtime pay for

this time period, and the Court respectfully recommends that plaintiff be awarded $90,720 in

overtime wages worked from September 10, 2022, through April 19, 2024.

10 See supra n.6.

2. Liquidated Damages Under the FLSA and NYLL

The FLSA and NYLL provide for liquidated damages for wage-claim violations,

calculated in an amount equal to 100% of the wage underpayments. 29 U.S.C. § 216(b); N.Y.

Lab. L. §§ 198(1-a) and 663(1). Prior to November 24, 2009, an employee could recover

liquidated damages under the NYLL only if the underpayment was found to be willful. N.Y.

Lab. L. § 663(1) (1967). However, an amendment to the NYLL, effective November 24, 2009,

“incorporated the federal standard” and shifted the burden of proving good faith to the employer.

Hengjin Sun v. China 1221, Inc., No. 12 CV 7135, 2016 WL 1587242, at *3 (S.D.N.Y. Apr. 19,

2016) (quoting Galeana v. Lemongrass on Broadway Corp., 120 F. Supp. 3d 306, 317 (S.D.N.Y.

2014)). Under both statutes, the employer bears the burden of proving good faith and

reasonableness. Under the NYLL’s liquidated damages provision, “courts have not substantively

distinguished the federal standard from the current state standard of good faith.” Inclan v. New

York Hosp. Grp., Inc., 95 F. Supp. 3d 490, 505 (S.D.N.Y. 2015) (citing He v. Home on 8th

Corp., No. 09 CV 5630, 2014 WL 3974670, at *7 n.19 (S.D.N.Y. Aug. 13, 2014)); Eschmann v.

White Plains Crane Serv., Inc., No. 11 CV 5881, 2014 WL 1224247, at *9 (E.D.N.Y. Mar. 24,

2014). Accordingly, the employer’s burden of proving good faith “is a difficult one, with double

damages being the norm and single damages the exception.” Gortat v. Capala Bros., 949 F.

Supp. 2d 374, 380 (E.D.N.Y. 2013) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142

(2d Cir. 1999), and awarding 100% liquidated damages under the FLSA standard).

Since the defendant has chosen not to appear in this action and has not established that he

had a good faith basis to believe that his underpayment of wages was in compliance with the

NYLL or the FLSA, the Court respectfully recommends that plaintiff be awarded liquidated

damages in an amount equal to the amount of unpaid wages under the NYLL.

Accordingly, given that the Court recommends that plaintiff be awarded a total of

$112,000 in unpaid wages, representing $99,840 in total overtime wages and $12,160 in

minimum wages, the Court respectfully recommends that plaintiff be awarded the equal amount

of $112,000 in liquidated damages for his minimum wage and overtime claims.

3. Pre- and Post-judgment Interest

Finally, plaintiff’s Complaint contains a request for an award of pre- and post-judgment

interest (Compl., Prayer for Relief), and plaintiff asserts in his Memorandum of Law that he is

“entitled to pre-judgment interest on his unpaid wage claim under the NYLL,” as well as post-

judgment interest under 28 U.S.C. § 1961. (Pl.’s Mem. at 17-18). Plaintiff asserts a reasonable

midpoint for calculating prejudgment interest under the NYLL as September 5, 2023, or the

midpoint of his employment. (Id. at 18). Based on plaintiff’s own calculations of damages

incurred by that period, plaintiff requests that prejudgment interest be calculated by $138,600,

representing the total wages owed, multiplied by nine percent and divided by 365 for a daily

interest rate of $34.18, multiplied by 535 days from the midpoint to the filing date of the Motion,

for a total of $18,283.81. (Id.; Dmgs. Chart).

Prejudgment interest is not available under the FLSA because the federal statute does not

allow an employee to recover “prejudgment interest on any portion of their recovery for which

they have been awarded federal liquidated damages,” since liquidated damages under the FLSA

“are considered compensatory in nature and thus serve as a form of pre-judgment interest.”

Yuquilema v. Manhattan’s Hero Corp., No. 13 CV 461, 2014 WL 4207106, at *11 (S.D.N.Y.

Aug. 20, 2014) (citations and quotation marks omitted), report and recommendation adopted,

2014 WL 5039428 (S.D.N.Y. Sept. 30, 2014); Yu G Ke v. Saigon Grill, Inc., 595 F. Supp. 2d

240, 261 (S.D.N.Y. 2008). However, the Second Circuit has held that, as liquidated damages

and prejudgment interest are not functional equivalents under the NYLL, prevailing plaintiffs

may recover both for claims brought under the NYLL. Reilly v. Natwest Mkts. Grp. Inc., 181

F.3d 253, 265 (2d Cir. 1999). In this case, since the Court did not award plaintiff damages based

on his FLSA claims, there is no impediment to awarding liquidated damages and pre-judgment

interest on plaintiff’s NYLL claims. However, prejudgment interest is available only on a

plaintiff’s actual damages, not on liquidated damages. See Gamero v. Koodo Sushi Corp., 272

F. Supp. 3d 481, 515 (S.D.N.Y. 2017).

Prejudgment interest under New York Law is governed by Section 5001 of the New York

Civil Practice Law and Rules, which states: “Interest shall be computed from the earliest

ascertainable date the cause of action existed, except that interest upon damages incurred

thereafter shall be computed from the date incurred.” N.Y. C.P.L.R. § 5001(b). In addition,

“[w]here such damages were incurred at various times, interest shall be computed upon each

item from the date it was incurred or upon all of the damages from a single reasonable

intermediate date.” Id. However, where, as here, violations of the NYLL occur over an

extended period of time, courts calculate prejudgment interest from a “single reasonable

intermediate date.” Id. See, e.g., Wicaksono v. XYV 48 Corp., No. 10 CV 3635, 2011 WL

2022644, at *9 (S.D.N.Y. May 2, 2011) (holding that, “[t]he plaintiffs have calculated

prejudgment interest from the midway point of each plaintiff’s employment, which is a

reasonable approach”).

In determining prejudgment interest, “[c]ourts have discretion in choosing a reasonable

date from which to calculate” it. Ladino v. Cordova, No. 21 CV 2449, 2024 WL 968898 at *4

(E.D.N.Y. Feb. 14, 2024), report and recommendation adopted, 2024 WL 967635 (E.D.N.Y.

Mar. 6, 2024). In this district, courts most often select a “median date between the earliest

ascertainable date the cause of the action existed and the date the action was filed” from which to

calculate prejudgment interest. Id. (quoting Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d at

93). However, courts have also held as reasonable a midpoint based upon the period of

employment subject to the NYLL claim. See, e.g., Thompson v. Hyun Suk Park, 18 CV 6, 2020

WL 5822455, at *11 (E.D.N.Y. Sep. 1, 2020) (calculating the midpoint between plaintiff’s start

and end dates, which represented “the period in which the NYLL claim accrued”); Rosas v. M

and M LA Solucion Flat Fixed Inc., 23 CV 1212, 2024 WL 4131905, at *17 (E.D.N.Y. Sep. 10,

2024) (calculating midpoint between date NYLL claims first accrued and end date of

employment).

Plaintiff calculates prejudgment interest based on the latter approach. Assuming that the

beginning of plaintiff’s claim period is September 10, 2022 and the end date of his employment

was August 30, 2024, then the mid-date would be September 5, 2023, as plaintiff suggests in his

Motion. (Pl.’s Mem. at 18). The Court finds that this midpoint provided by plaintiff is

reasonable and thus uses such date for the calculation. Given that the recommended damages

award for plaintiff’s NYLL wage claims is $112,000, plaintiff would be entitled to recover the

total amount, $112,000, multiplied by a rate of nine percent annually resulting in approximately

$10,080 per year in interest, or $27.62 per day based on 365 days per calendar year. As of today,

plaintiff would therefore be entitled to $19,720.68 in prejudgment interest based on 714 days

between September 5, 2023 and the date of this Report and Recommendation, August 19, 2025.

Accordingly, the Court recommends that prejudgment interest be awarded by the Clerk of

Court in a daily amount of $27.62 from September 5, 2023, until the date when the judgment is

entered.

Plaintiff is also entitled to post-judgment interest pursuant to 28 U.S.C. § 1961(a), which

“ensures that an award of post-judgment interest is mandatory in any civil case where money

damages are recovered.” Jimenez v. Green Olive Inc., No. 23 CV 8805, 2024 WL 3763467, at

*22 (E.D.N.Y. Aug. 13, 2024) (awarding post-judgment interest in FLSA and NYLL wage-and-

hour case) (quoting Duffy v. Oyster Bay Indus., Inc., No. 10 CV 3205, 2011 WL 2259798, at *3

(E.D.N.Y. Mar. 29, 2011), report and recommendation adopted, 2011 WL 2259749 (E.D.N.Y.

June 2, 2011)). Thus, the Court recommends that post-judgment interest be awarded from the

date the Clerk of Court enters judgment until the judgment is paid in full.

C. Attorney’s Fees and Costs

Plaintiff also seeks to recover an award of attorney’s fees and costs in the amount of

$7,107.00, representing 20.40 hours of work billed, plus $581.52 in costs. (See Pl.’s Mem. at

30-31; Ex. 4).11 Plaintiff seeks an hourly rate of $550 for Ryan J. Kim, the primary attorney on

the case; $350 an hour for associate Min Suk Choi; and $215 an hour for paralegal Jia Choi.

(Pl.’s Mem. at 22). Pursuant to the applicable provisions of the FLSA and the NYLL, 29 U.S.C.

§ 216(b); N.Y. Lab. L. § 663(1), plaintiff is entitled to an award of reasonable attorney’s fees and

costs.

1. Prevailing Party

The FLSA is a fee shifting statute and the Court “must” award a reasonable attorney’s fee

to a prevailing party in an FLSA action. Khalil v. Original Old Homestead Rest., Inc., 657 F.

Supp. 2d 470, 473 (S.D.N.Y. 2009) (quoting 29 U.S.C. § 216(b) (providing that the court in an

FLSA action “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a

reasonable attorney’s fee to be paid by the defendant, and costs of the action”) (emphasis

supplied)); see also Torres v. Gristede’s Operating Corp., No. 04 CV 3316, 2012 WL 3878144,

11 In one section of the memorandum, plaintiff states this request as totaling $6,990 for 18.80 hours of

work. (Pl.’s Mem. at 30). Given that the memorandum and billing records otherwise show the $7,107 and 20.40

numbers, the Court assumes this is an error.

at *1 (S.D.N.Y. Aug. 6, 2012), aff’d, 519 Fed. App’x 1, 3 (2d Cir. 2013). Similarly, the NYLL

provides for an award of reasonable attorney’s fees when the employee prevails on a wage claim.

N.Y. Lab. L. § 663(1). Section 663 provides that successful employees are entitled to “recover

in a civil action the amount of any such underpayments, together with costs[,] all reasonable

attorney’s fees, prejudgment interest as required under the civil practice law and rules . . .” Id.

Plaintiffs are prevailing parties under the FLSA and the NYLL “‘if they succeed on any

significant issue in litigation which achieves some of the benefit the parties sought in bringing

suit.’” Khalil v. Original Old Homestead Rest., Inc., 657 F. Supp. 2d at 474 (quoting Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983)); see Koster v. Perales, 903 F.2d 131, 134 (2d Cir. 1990)

(holding that “[a] plaintiff may be considered a prevailing party even though the relief ultimately

obtained is not identical to the relief demanded in the complaint”).

Here, because defendant has defaulted, plaintiff is a prevailing party and therefore should

receive an award of reasonable attorney’s fees and costs.

2. Calculation of Reasonable Attorney’s Fees

c) Legal Standard

“The district court retains discretion to determine . . . what constitutes a reasonable fee.”

Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting LeBlanc-Sternberg v.

Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)). “The traditional starting point for determining a

reasonable attorneys’ fee award is the ‘lodestar’ amount, which results in a presumptively

reasonable fee.” Dunn v. Advanced Credit Recovery, Inc., No. 11 CV 4023, 2012 WL 676350,

at *5 (S.D.N.Y. Mar. 1, 2012) (citing Perdue v. Kenny A., 559 U.S. 542, 551-52 (2010)), report

and recommendation adopted by 2012 WL 1114335 (S.D.N.Y. Apr. 3, 2012); see also Millea v.

Metro-North R.R. Co., 658 F.3d at 166-67 (explaining that it is legal error to fail to calculate the

lodestar “as a starting point”); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of

Albany, 522 F.3d 182, 188-90 (2d Cir. 2008).

To determine the lodestar amount, a court must determine “the number of hours

reasonably expended on the litigation” and multiply that number “by a reasonable hourly rate.”

Moore v. Diversified Collection Servs., Inc., No. 07 CV 397, 2013 WL 1622949, at *1

(E.D.N.Y. Mar. 19, 2013), report and recommendation adopted by 2013 WL 1622713 (Apr. 15,

2013); see also Adusumelli v. Steiner, Nos. 08 CV 6932, 09 CV 4902, 10 CV 4549, 2013 WL

1285260, at *2 (S.D.N.Y. Mar. 28, 2013) (explaining that “[c]ourts in the Second Circuit use the

familiar ‘lodestar’ method of calculating reasonable attorney’s fees – multiplying the number of

hours reasonably expended by a reasonable hourly rate”) (citing Millea v. Metro-North R.R.,

Co., 658 F.3d at 166); Dunn v. Advanced Credit Recovery, Inc., 2012 WL 676350, at *5.

Although the lodestar approach results in a “presumptively reasonable” fee, “it is not

‘conclusive in all circumstances.’” Millea v. Metro-North R.R. Co., 658 F.3d at 167 (quoting

Perdue v. Kenny A., 130 S. Ct. at 1673). Rather, in “rare circumstances,” a court may adjust the

lodestar “when [the lodestar method] ‘does not adequately take into account a factor that may

properly be considered in determining a reasonable fee.’” Id. (quoting Perdue v. Kenny A., 130

S. Ct. at 1673); see also Adusumelli v. Steiner, 2013 WL 1285260, at *2. In other words, “a

court may not adjust the lodestar based on factors already included in the lodestar calculation

itself because doing so effectively double-counts those factors.” Id. As the court explained in

Dunn v. Advanced Credit Recovery, Inc., a court should “first use[] the lodestar method to

determine the amount of attorneys’ fees and then, if necessary, adjust[] the resulting figure using

the [Johnson v. Georgia Highway Express, Inc.] factors to reflect consideration of any special

circumstances.” 2012 WL 676350, at *5, n.6.

d) Analysis

In this case, plaintiff was represented by Ryan Kim, who graduated from George

Washington University National Law Center in 2002 and received a Tax LLM from

Northwestern Pritzker School of Law in 2003. (Pl.’s Mem. at 22).12 According to Mr. Kim, he

has over twenty-three years of experience litigating wage and hour actions, and he is fluent in

Korean. (Id. at 23, 26). Plaintiff was also represented by associate Min Suk Choi, who is fluent

in Korean, and was assisted by paralegal Jia Choi, who has worked for Mr. Kim’s firm, Ryan

Kim Law P.C., for over 12 years, and is also fluent in Korean. (Id. at 28).

In accordance with New York State Assoc. for Retarded Children, Inc. v. Carey, the

Firm submitted contemporaneous billing records, setting forth the dates and amount of time

during which services were rendered, the rate at which the services were charged, along with the

name of the attorney, law clerk, or paralegal, and a description of services performed. 711 F.2d

1136, 1148 (2d Cir. 1983). (See Kim Decl., Ex. 4).

1) Hourly Rates

In order to calculate the lodestar, the Court must first determine a reasonable hourly rate

for the legal services performed. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County

of Albany, 522 F.3d at 190. “The most useful starting point for determining the amount of a

reasonable fee is the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate. This calculation provides an objective basis on which to make an initial

estimate . . .” Id. at 186 (quoting Hensley v. Eckerhart, 461 U.S. at 433 (1983)). Additionally,

the Second Circuit has adopted the following factors, inter alia, to guide the inquiry as to what

constitutes a reasonable hourly rate:

12 Mr. Kim’s Declaration does not provide information regarding his professional experience or his request

for attorney’s fees. (See ECF No. 10-3 (“Kim Decl.”)).

(1) the time and labor required; (2) the novelty and difficulty of the

questions; (3) the skill required to perform the legal service

properly; (4) the preclusion of employment by the attorney due to

acceptance of the case; (5) the customary fee; (6) whether the fee is

fixed or contingent; (7) the time limitations imposed by the client

or the circumstances; (8) the amount involved and the results

obtained; (9) the experience, reputation, and ability of the

attorneys; (10) the “undesirability” of the case; (11) the nature and

length of the professional relationship with the client; and (12)

awards in similar cases.

Id. at 186 n.3 (citing Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717-719 (5th Cir.

1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)). A number of

recent cases have considered these factors when awarding attorneys’ fees. See Lisnitzer v. Shah,

No. 11 CV 4641, 2022 WL 3931388, at *2 (E.D.N.Y. July 6, 2022), report and recommendation

adopted sub nom. Lisnitzer v. Zucker, 2022 WL 3914964 (E.D.N.Y. Aug. 31, 2022), amended

by 2023 WL 2020963 (E.D.N.Y. Feb. 15, 2023) (adjusting award by 62 cents); see also Smith v.

City of New York, No. 19 CV 6198, 2022 WL 939711, at *4 n.3 (E.D.N.Y. Mar. 28, 2022).

Courts are also instructed to balance:

the complexity and difficulty of the case, the available expertise

and capacity of the client’s other counsel (if any), the resources

required to prosecute the case effectively . . ., the timing demands

of the case, whether the attorney might have an interest

(independent of that of his client) in achieving the ends of the

litigation or might initiate the representation himself, whether the

attorney might have initially acted pro bono . . ., and other returns

(such as reputation, etc.) the attorney might expect from the

representation.

Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d at 184.

In determining the appropriate rate to be charged, the Second Circuit has indicated that

courts may consider evidence of prevailing rates for similar services beyond the fee application

itself. See Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir.

1989). In addition to the parties’ evidentiary submissions, the Court may consider its own

experience and familiarity with the case and with rates generally charged. See Cruz v. Local

Union No. 3, 34 F.3d 1148, 1160 (2d Cir. 1994) (noting that “[a] district court’s ‘choice of rates

[is] well within [its] discretion’”) (quoting Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.

1994), cert. denied, 513 U.S. 876 (1994)). The Court may also “look to fees awarded in recent

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

fees requested are reasonable.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d at 52.

Indeed, the Second Circuit has held that in calculating the presumptively reasonable fee, “courts

‘should generally use the hourly rates employed in the district in which the reviewing court

sits.’” Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (holding that

when awarding attorney’s fees, there is a presumption in favor of relying on the rates where the

case is litigated, not where the attorneys are located) (citations omitted). To “inform and assist

the court in the exercise of its discretion, the burden is on the fee applicant to produce

satisfactory evidence – in addition to the attorney’s own affidavits – that the requested rates are

in line with those prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

First, plaintiff’s primary counsel, Mr. Kim, seeks fees for his own services, which he

charges at the rate of $550 per hour. (Pl.’s Mem. at 23). In support of this billing rate, plaintiff

represents that this rate reflects the prevailing market rates for attorneys with similar experience

and expertise “in the Southern District of New York.” (Id.) Plaintiff cites to several cases in

which Mr. Kim prosecuted individual wage and hour and collective actions in the Northern

District of Illinois, the Southern District of New York, and in this district. (Id. at 24-25).

Plaintiff also argues that, since plaintiff speaks only Korean, without Mr. Kim’s fluency, plaintiff

would have faced significant challenges to asserting his rights, which entitles him to a higher

rate. (Id. at 27 (citing Nguyen v. Kijakazi, No. 20 CV 2391, 2023 WL 4096695 (S.D. Cal. June

20, 2023))).

However, $550 is higher than the upper range of a reasonable hourly rate in this district.

See Doe v. Gonzalez, 21 CV 4580, 2024 WL 2795216, at *2 (E.D.N.Y. May 21, 2024) (noting

that Rudler v. Houslanger & Assocs., PLLC, No. 18 CV 7068, 2020 WL 473619, at *2

(E.D.N.Y. Jan 29, 2020) found that the “prevailing rates for attorneys in the E.D.N.Y. . . . are

approximately $300-$450 per hour for partners”); see also Windward Bora LLC v. Montour, No.

23 CV 3654, 2024 WL 4045989, at *4 (E.D.N.Y. Aug. 30, 2024) (quoting the same), report and

recommendation adopted, 2024 WL 4242208 (E.D.N.Y. Sept. 19, 2024). In reviewing recent

decisions in this district, the Court could not find a single instance of a court awarding an hourly

rate of $550 or higher for wage and hour cases, and counsel’s main support for this rate comes

from a case outside this Circuit that allowed for a higher award based on fluency in another

language.13 This is not enough for the Court to conclude that this rate is “in line with those

prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation.” Blum v. Stenson, 465 U.S. at 895 n.11. In addition, Mr. Kim is

often awarded an hourly rate of $450.00 for similar work in this district, given that he is an

“experienced litigator.” See Choi v. AHC Med. Servs., PLLC, No. 22 CV 1450, 2023 WL

5612394, at *11 (E.D.N.Y. Aug. 1, 2023), report and recommendation adopted, No. 22 CV 1450,

2023 WL 5613718 (E.D.N.Y. Aug. 30, 2023); see also Shin v. Party Well Rest & Oriental

Bakery Inc., No. 20 CV 1319, 2024 WL 1327420, at *3 (E.D.N.Y. Mar. 28, 2024) (awarding Mr.

Kim $450 an hour and collecting cases awarding the same), aff’d sub nom. Shin v. Party Well

13 It is worth noting that, in that case, the court found that plaintiff’s counsel was entitled to a maximum

rate of $284.95 an hour even with the additional award for fluency, representing a lower rate than that requested

here. See Nguyen v. Kijakazi, 2023 WL 4096695, at *8).

Rest. & Oriental Bakery, Inc., No. 24-1189, 2025 WL 783737 (2d Cir. Mar. 12, 2025). Thus, the

Court respectfully recommends that Mr. Kim be awarded an hourly fee of $450.00 for his work

on the instant case.

Plaintiff also requests a rate of $215 an hour for paralegal Jia Choi. (Pl.’s Mem. at 22).

Courts in this district “have recently awarded hourly rates ranging from . . . $70 to $100 for legal

support staff in FLSA cases.” Diaz v. Rene French Cleaners, Inc., No. 20 CV 3848, 2022 WL

4646866, at *13 (E.D.N.Y. Aug. 29, 2022) (quotation marks and citation omitted), report and

recommendation adopted, No. 20 CV 3848, 2022 WL 4662247 (E.D.N.Y. Sept. 30, 2022); see

Sanchez v. Mo Grill Corp., No. 23 CV 8290, 2025 WL 1309603, at *8 (E.D.N.Y. Jan. 13, 2025)

(quoting the same). Given that plaintiff represents that Ms. Choi has worked as a paralegal for

over 12 years and is fluent in Korean, the Court recommends that Ms. Choi be awarded an

hourly rate of $100, representing the “top end for experienced paralegals in labor and

employment matters . . . .” Shin v. Party Well Rest & Oriental Bakery Inc., 2024 WL 1327420,

at *4 (awarding Ms. Choi $100 an hour for her paralegal work in a wage and hour case); Choi v.

AHC Med. Servs., PLLC, 2023 WL 5612394, at *12 (recommending Ms. Choi be awarded the

same).

As to associate Min Suk Choi, plaintiff requests an award of $350 an hour. (Pl.’s Mem.

at 28). Courts in this district “have recently awarded hourly rates ranging from . . . $200 to $325

for senior associates, [and] $100 to $200 for junior associates . . . in FLSA cases.” Diaz v. Rene

French Cleaners, Inc., 2022 WL 4646866, at *13. Plaintiff has not provided any detail on Mr.

Choi’s professional expertise, such as where he graduated from law school or how long he has

been practicing labor and employment law. Thus, it is difficult for the Court to determine a

reasonable hourly rate for Mr. Choi. Since plaintiff has also not provided any information as to

whether Mr. Choi is a junior or senior associate, the Court recommends that his fee be set toward

the higher end of the junior associate rate, given that the Court found an award of $100 an hour

appropriate for the firm’s paralegal, and Mr. Choi is an associate at the same firm who is also

fluent in Korean. The Court therefore respectfully recommends that Mr. Choi be awarded an

hourly rate of $150 an hour, unless plaintiff wishes to supplement his application with more

information as to this associate.

2) Hours Billed

Turning to the number of hours billed, plaintiff represents that the firm spent a total of

20.40 hours on this matter, as indicated by the billing records. (Pl.’s Mem. at 30; Kim Decl., Ex.

4).

To determine the reasonableness of an attorney’s fees request, “[t]he Court must make ‘a

conscientious and detailed inquiry into the validity of the representations that a certain number of

hours were usefully and reasonably expended.’” Maldonado v. La Nueva Rampa, Inc., No. 10

CV 8195, 2012 WL 1669341, at *13 (S.D.N.Y. May 14, 2012) (quoting Lunday v. City of

Albany, 42 F.3d 131, 134 (2d Cir. 1994)), report and recommendation adopted, (S.D.N.Y. Aug.

9, 2012). “The critical inquiry is ‘whether, at the time the work was performed, a reasonable

attorney would have engaged in similar time expenditures.’” Id. (quoting Grant v. Martinez, 973

F.2d 96, 99 (2d Cir. 1992)). In this Circuit, judges are required to “‘use their experience with the

case, as well as their experience with the practice of law, to assess the reasonableness of the

hours spent . . . in a given case.’” Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 208

(E.D.N.Y. Nov. 30, 2007) (quoting Fox Indus., Inc. v. Gurovich, No. 03 CV 5166, 2005 WL

2305002, at *2 (E.D.N.Y. Sept. 21, 2005)).

In reviewing a fee application, the court “should exclude excessive, redundant or

otherwise unnecessary hours.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)

(citing Hensley v. Eckerhart, 461 U.S. at 433-35, 440); see also Rotella v. Board of Educ., No.

01 CV 434, 2002 WL 59106, at *3-4 (E.D.N.Y. Jan. 17, 2002) (applying percentage reduction to

fees of several attorneys for excessive and redundant billing); Quinn v. Nassau City Police

Dep’t., 75 F. Supp. 2d 74, 78 (E.D.N.Y. 1999) (reducing one attorney’s fees by 20% and

another’s by 30% for unnecessary and redundant time); Perdue v. City Univ. of N.Y., 13 F.

Supp. 2d 326, 346 (E.D.N.Y. 1998) (imposing a 20% reduction for redundancy); American Lung

Ass’n v. Reilly, 144 F.R.D. 622, 627 (E.D.N.Y. 1992) (finding that “use of so many lawyers for

relatively straightforward legal tasks was excessive and led to duplication of work” and

deducting 40% of plaintiffs’ lawyer’s hours).

Similarly, courts routinely apply across-the-board reductions for vague entries, see, e.g.,

In re Olson, 884 F.2d 1415, 1428-29 (D.C. Cir. 1989) (reducing fees based on lack of specificity

in description of work performed); DeVito v. Hempstead China Shop, Inc., 831 F. Supp. 1037,

1045 (E.D.N.Y. 1993) (reducing fee request by 40% for, inter alia, insufficient descriptions of

work performed), rev’d & remanded on other grounds, 38 F.3d 651 (2d Cir. 1994); Cabrera v.

Fischler, 814 F. Supp. 269, 290 (2d Cir. 1994) (reducing fees by 30% for vague entries with

insufficient descriptions of work performed), rev’d in part & remanded on other grounds, 24

F.3d 372 (2d Cir.), cert. denied, 513 U.S. 876 (1994); Nu-Life Constr. Corp. v. Board of Educ.,

795 F. Supp. 602, 607-08 (E.D.N.Y. 1992) (reducing fees by 30% due in part to lack of

specificity in descriptions of work performed); Meriwether v. Coughlin, 727 F. Supp. 823, 827

(S.D.N.Y. 1989) (finding an overall reduction of 15% warranted based on vague descriptions of

work performed).

For a simple default, generally, the “high-end amount of hours spent on eases [sic] in a

similar procedural posture (i.e., a motion for default judgment immediately following the filing

of a complaint) is no more than 55 hours total.” Maldonado v. La Nueva Rampa, Inc., 2012 WL

1669341, at *14 (collecting cases from the Second Circuit in which courts approved the number

of hours spent on default judgment cases in similar “wage-and-hour cases” as requested if less

than 55, and reduced the number of hours, if greater).

Here, having reviewed the billing records and the tasks completed and given that the firm

spent only 20.40 hours on the matter, the Court finds the number of hours to be reasonable.

Having found the number of hours spent on the matter to be reasonable, the Court

respectfully recommends that plaintiff’s counsel receive $4,200 in attorney’s fees, based on 5.1

hours worked by Mr. Kim at $450 an hour ($2,295), 7.5 hours worked by Mr. Choi at $150 an

hour ($1,125), and 7.8 hours worked by paralegal Choi at $100 an hour ($780). (See Kim Decl.,

Ex. 4).

3. Reasonable Costs

Plaintiff also requests $581.42 in costs and disbursements, including $405 for filing fees,

$166.42 spent on process fees, and $10 spent on a skip tracing service. (Kim Decl., Ex. 4).

Given that the firm has provided billing records detailing how these costs were incurred,

the Court recommends that plaintiff be awarded the full $581.42 requested in costs. See Finkel

v. Triple A Grp., Inc., 708 F. Supp. 2d 277, 290-91 (E.D.N.Y. 2010) (awarding $818.53 in costs

for filing fees, service of process, legal research, and postage); see also Tlacoapa v. Carregal, 386

F. Supp. 2d 362, 374 (S.D.N.Y. 2005) (citing Kuzma v. Internal Revenue Serv., 821 F.2d 930,

933-34 (2d Cir. 1987) (explaining that “[i]dentifiable out-of-pocket disbursements for items such

as photocopying, travel, and telephone costs are generally taxable . . . and are often distinguished

from nonrecoverable routine office overhead, which must be absorbed within the attorney’s

hourly rate”)).

Accordingly, the Court respectfully recommends that plaintiff be awarded $4,200 in

attorney’s fees, plus an additional $581.42 in costs, totaling $4,781.42.

CONCLUSION

The Court respectfully recommends that plaintiff’s motion for entry of a default

judgment be granted, and that plaintiff be awarded the following damages: (1) $112,000 for

unpaid wages under the NYLL; (2) $112,000 in liquidated damages; (3) $27.62 per day in

prejudgment interest, starting on September 5, 2023, until final judgment is entered; (4) post-

judgment interest until the judgment is paid in full; and (5) $4,781.42 in attorney’s fees and

costs.

Any objections to this Report and Recommendation must be filed with the Clerk of the

Court within fourteen (14) days. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also

Fed. R. Civ. P. 6(a), (e) (providing the method for computing time). Failure to file objections

within the specified time waives the right to appeal the district court’s order. See, e.g., Caidor v.

Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object timely to a . .

. report [and recommendation] operates as a waiver of any further judicial review of the

magistrate [judge’s] decision”).

Plaintiff shall serve a copy of this Report and Recommendation on the defendant and file

proof of such service on the record by August 22, 2025.

SO ORDERED.

Dated: Brooklyn, New York

August 19, 2025

/s/ Cheryl L. Pollak

Cheryl L. Pollak

United States Magistrate Judge

Eastern District of New York