Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAVIER SOTO GOMEZ, individually and on

behalf of others similarly situated,

Plaintiff, REPORT AND

RECOMMENDATION

-against- 24 CV 1972 (LDH) (CLP)

4 GUYS REALTY, INC. (D/B/A GRILL ZONE),

FARES KASSIM YAFAI, MANSOOR KASSIM

SHAIBI, and AISHA NASER SALEH,

Defendants.

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POLLAK, United States Magistrate Judge:

On March 18, 2025, plaintiff Javier Soto Gomez commenced this action against

defendants 4 Guys Realty, Inc. (d/b/a Grill Zone) (the “corporate defendant”), Fares Kassim

Yafai, Mansoor Kassim Shaibi, and Aisha Naser Saleh1 (collectively, the “individual

defendants”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.

(“FLSA”), and the New York Labor Law §§ 190 et seq. (“NYLL”), seeking unpaid overtime

wages, spread-of-hours pay, liquidated damages, statutory civil damages, pre- and post-judgment

interest, and attorney’s fees and costs. (Compl.).2

Currently pending before this Court on referral from the Honorable LeShann DeArcy

Hall is plaintiff’s motion for default judgment. For the reasons set forth below, it is respectfully

recommended that plaintiff’s motion be granted.

1 The claims against defendant Saleh were voluntarily dismissed on August 12, 2024. (See ECF No. 11).

2 Citations to “Compl.” refer to plaintiff’s Complaint, filed December 28, 2024 (ECF No. 1).

FACTUAL BACKGROUND

According to the Complaint, defendants 4 Guys Realty, Inc., Fares Kassim Yafai,

Mansoor Kassim Shaibi, and Aisha Naser Saleh operated a deli under the name “Grill Zone,”

located at 54 Avenue C, New York, NY 10009 (the “54 Avenue Location”), which was relocated

to 5418 New Utrecht Avenue, Brooklyn, NY 11219 (the “New Utrecht Avenue Location”) in

September 2018. (Compl. ¶ 2). Plaintiff alleges that at all times relevant to this action, the deli

was a business engaged in interstate commerce, using numerous items on a daily basis which

were produced outside of the State of New York, and that defendants had a gross annual volume

of sales exceeding $500,000. (Id. ¶¶ 30, 31, 36, 71).

Defendants Yafai, and Shaibi, along with the dismissed defendant Saleh, are alleged to be

the owners, managers, principals, or agents of the corporate entity and, through the corporate

entity, operated the deli as a joint or unified enterprise. (Id. ¶¶ 3, 19-21, 23). According to

plaintiff, the individual defendants each possessed an ownership interest over the corporate

defendant and maintained operational control over the corporation, with the power to hire and

fire employees, determine work schedules, and establish the rate and method of pay for the deli

employees. (Id. ¶¶ 19-21, 23, 25, 29).

Plaintiff Soto Gomez alleges that from on or around 2015 until on or about June 2023,3

he was employed by defendants as a stocker, cook, and cleaner working at the deli. (Id. ¶¶ 4, 32,

34, 35). According to the plaintiff, he regularly handled goods in interstate commerce such as

goods and other supplies produced outside the State of New York. (Id. ¶ 36).

Plaintiff alleges that he worked at the 54 Avenue Location from approximately March

2018 until June 2018 and that he worked at the New Utrecht Avenue Location from July 2018

3 Plaintiff does not allege a specific start date or month or specific end date.

until May 2023. (Id. ¶ 39). He also alleges that: (1) from March 2018 until June 2019, he

worked 5 days per week, typically comprising 54 hours of work; (2) from July 2019 until

October 2019, he worked 6 days per week, typically comprising 60 hours of work; (3) from

November 2019 through March 2020, August 2020 through January 22, 2021, and from February

15, 2020 through March 2023, he worked 7 days per week, typically comprising 84 hours of

work; (4) from April 2023 through May 29, 2023, he worked 10 hours per day, 7 days per week,

or 70 hours. (Id. ¶¶ 39-45). According to plaintiff, from March 2018 through December 2018 he

was paid $15.50 per hour; from January 2019 through January 2021, he was paid $15.00 per

hour; from February 2021 through December 2021, he was paid $16.00 per hour; and from

January 2022 through May 29, 2023, he was paid $17.00 per hour. (Id. ¶¶ 47-50). Plaintiff also

claims that defendants did not utilize any time tracking devices to accurately reflect employees’

hours worked, nor did they provide wage notices to employees indicating employees’ rates of

pay, regular pay day, or information about overtime pay rates. (Id. ¶¶ 53-55). Finally, plaintiff

alleges that defendants maintained a policy and practice requiring plaintiff to work in excess of

40 hours a week without paying him overtime compensation or spread-of-hours pay. (Id. ¶ 56).

DISCUSSION

I. Default Judgment

A. Legal Standard

Rule 55(a) of the Federal Rules of Civil Procedure provides 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.” Fed. R. Civ.

P. 55(a). Rule 55 sets forth a two-step process for an entry of 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. Id.

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

sanction[,]” it should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277

(2d Cir. 1981). 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, considering 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, plaintiff is not entitled to a default judgment as a matter of

right simply because a party 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 grounds for default are clearly

established; (2) whether the claims were 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); and (3) the

amount of money potentially involved—the more money involved, the less justification for

entering the default judgment. Hirsch v. Innovation Int’l, Inc., No. 91 CV 4130, 1992 WL

316143, at *2 (S.D.N.Y. Oct. 19, 1992). 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 has been substantially prejudiced by the delay involved, and whether the default

judgment might have a harsh effect on the defendants. See Pacific M. Int'l Corp. v. Raman Int'l

Gems, Ltd., 888 F. Supp. 2d 385, 393 (S.D.N.Y. 2012).

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 defendants are deemed to have

admitted all well-pleaded allegations in the complaint pertaining to liability. See id. For the

purposes of an inquest, a court accepts as true all factual allegations in the complaint, except

those claims relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.

1981).

B. Default Judgment Liability

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

to pay overtime, spread-of-hours premiums, and by failing to provide plaintiff with proper wage

notices and wage statements. (Compl. ¶¶ 8-14).

1) FLSA Claims

To establish a claim under the FLSA, a plaintiff must prove that: (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); Tony & Susan Alamo

Found. v. Secretary of Labor, 471 U.S. 290, 295 (1985)).

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 defendant, 4 Guys Realty, Inc. d/b/a

Grill Zone, has been and continues to be an employer engaged in interstate commerce within the

meaning of the FLSA. (Compl. ¶¶ 30, 31, 36, 71). Plaintiff further alleges that the corporate

defendant has had annual gross revenues in excess of $500,000 at all relevant times. (Id. ¶ 30).

Thus, plaintiff has adequately alleged that defendant 4 Guys Realty, Inc. d/b/a Grill Zone is a

covered enterprise under the 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. 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” “includes to suffer or permit to work.” 29 U.S.C. §

203(g). 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).

An individual may be liable as an “employer” under the FLSA so long as he exercises

“operational control” over the employees in question, see Irizarry v. Catsimatidis, 722 F.3d 99,

110 (2d Cir. 2013), cert. denied, 572 U.S. 1002 (2014), 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).

Plaintiff alleges in the Complaint that he worked for the defendants as a stocker, cook,

and cleaner at their deli, Grill Zone. (Compl. ¶¶ 4, 32, 34, 35). Plaintiff also alleges that the

individual defendants Yafai, Shaibi, and dismissed defendant Saleh were the owners of the

corporate defendant, holding managerial positions in the defendant corporation and exercising

operational control over the business. (Id. ¶¶ 3, 19-21, 23, 25, 29). Thus, based on the

allegations in the Complaint, plaintiff qualifies as an “employee” and defendants as “employers”

under the FLSA. The Court does not find any basis for exempting the employment relationship

at issue from coverage under the FLSA.4

Plaintiff alleges that defendants violated the FLSA by failing to pay overtime wages for

hours worked in excess of 40 hours per week. (Id. ¶¶ 5, 9, 10, 38, 56, 57, 69-75). Since

defendants have defaulted, the Court accepts plaintiff’s uncontested allegations as true and

respectfully recommends that plaintiff be deemed to have sufficiently set forth the necessary

elements to state a claim under the FLSA against the corporate defendant and individual

defendants Yafai and Shaibi.

4 See 29 U.S.C. § 213(a) (setting forth the exemptions under the FLSA).

2) NYLL Claims

Plaintiff also alleges that defendants violated the NYLL. The NYLL provides for a

minimum wage and overtime scheme that is “largely similar” to that contained in the FLSA.

Man Wei Shiu v. New Peking Taste Inc., No. 11 CV 1175, 2014 WL 652355, at *10 (E.D.N.Y.

Feb. 19, 2014) (citing Rosas v. Subsational, No. 11 CV 2811, 2012 WL 4891595, at *4 (E.D.N.Y.

Sept. 11, 2012), adopted, 2012 WL 4866678 (E.D.N.Y. Oct.15, 2012)). Like the FLSA, the

NYLL requires employers to pay overtime rates calculated at one-and-one-half times the

employees’ regular rate of pay for all hours worked in a week over 40 hours. See N.Y. Lab. L. §

652; 12 N.Y.C.R.R. §§ 142-2.2, 146-1.4; see, e.g., Charvac v. M & T Proj. Mgrs. of N.Y., Inc.,

No. 12 CV 5637, 2015 WL 5475531, at *4–5 (E.D.N.Y. June 17, 2015); see also Chawdhury v.

Hamza Express Food Corp., No. 14 CV 150, 2015 WL 5541767, at *4–5 (E.D.N.Y. Aug. 21,

2015), report and recommendation adopted by 2015 WL 5559873 (E.D.N.Y. Sept. 18, 2015).

Moreover, the NYLL requires employers to pay spread-of-hours premiums for days in which the

employee worked more than 10 hours. See 12 N.Y.C.R.R. §§ 142-2.4, 146-1.6.

To recover under the NYLL, plaintiffs must prove that they are “employees” and that

defendants are “employers” as defined by the statute. See 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 to be subjected to the law. See N.Y. Lab.

Law § 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 [an] employer”). Similarly, an employee is simply defined as “any individual

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

In this case, plaintiff’s allegations that he was employed by defendants within the meaning of the

NYLL §§ 2 and 651 suffice to put him under the coverage of the NYLL. (Compl. ¶¶ 4, 13, 15,

26, 32, 34, 35).

Plaintiff alleges in the Complaint that defendants failed to pay spread-of-hours premiums

and overtime wages. (Compl. ¶¶ 5, 7, 9, 10, 38, 56, 57, 69-75, 81). Accordingly, based on these

uncontested allegations, the Court respectfully recommends that plaintiff be deemed to have

adequately alleged the elements necessary to state claims of overtime. However, as laid out

below, because plaintiff was paid above minimum wage throughout the relevant period, the

Court respectfully recommends that the district court denies plaintiff’s request for spread of

hours pay.

In addition, plaintiff claims that defendants violated the Wage Theft Prevention Act

(“WTPA”), NYLL §§ 195(1) and 195(3), that requires employers to provide employees with

notices regarding their wages at the time of their hiring and wage statements with each payment

of wages. (Compl. ¶¶ 54, 64, 65, 88). 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. N.Y. Lab. L. § 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, 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.” 594 U.S. 413, 426 (2021). 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 (emphasis in original). 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. Instead, a plaintiff sufficiently alleges an injury-in-fact when he claims,

for example, that the failure to notify “prevented the employee from obtaining full payment of

wages in a timely fashion.” Id. at 309.

Plaintiff alleges that defendants’ policy and practice of not providing plaintiff with wage

statements were implemented “willfully to disguise the actual number of hours Plaintiff

Soto…worked, and to avoid paying Plaintiff Soto properly for his full hours worked” and to

“minimize[e] labor costs and deny[] employees compensation.” (Compl. ¶¶ 61). “Courts in this

Circuit are in agreement that a plaintiff has standing if he [or she] plausibly alleges that, by

failing to provide the required wage statements, the employer was able to hide [its] violations of

wage and hour laws’ and thus prevent the employee from ‘determining and seeking payment for

the precise amount of [his] unpaid wages.” Roma v. David Carmili, Physician, P.C., 761 F.

Supp. 3d 481, 490 (E.D.N.Y. 2024) (collecting cases) (quotations omitted).

Accordingly, given that the Complaint adequately alleges downstream harm, the Court

finds that plaintiff has sufficiently alleged an injury flowing from defendants’ violations of the

WTPA.

C. Default Determination

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

time, the Court finds that plaintiff has sufficiently established liability under both the FLSA and

NYLL, warranting entry of a default judgment.

Here, it is beyond dispute that defendants are in default. Although it appears that

defendants were properly served with the Summons and Complaint, they failed to file an answer

or otherwise respond to the pleadings. Moreover, the failure of the corporate defendant to obtain

counsel in this case constitutes a failure to defend because the corporate defendants, as

corporations, cannot proceed in federal court pro se. See Jones v. Niagara Frontier Transp.

Auth., 722 F.2d 20, 22 (2d Cir. 1983) (discussing the rationale for requiring corporations, as

“artificial” entities, to appear through counsel only); see also Shapiro, Bernstein & Co. v.

Continental Record Co., 386 F.2d 426, 427 (2d Cir. 1967) (per curiam) (stating that “it is settled

law that a corporation cannot appear other than by its attorney”). Defendants also failed to

respond to plaintiff’s request that default be entered, 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”), and they did not submit papers in response to plaintiff’s motion for default

judgment. Thus, plaintiff’s claims and evidence of damages are undisputed.

Given the numerous opportunities afforded to defendants, and their apparent lack of

interest in participating in these proceedings, the Court finds no compelling reason to delay the

case any further and finds that default is appropriate here.

II. Damages

A. Legal Standard

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). However, the plaintiff must still prove damages in an evidentiary proceeding at

which the defendants can 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.’” Guttman v. Klein, No. 03 CV 1570,

2010 WL 4975593, at *1 (E.D.N.Y. Aug. 19, 2010) (quoting Flaks v. Koegel, 504 F.2d 702, 707

(2d Cir. 1974)).

When a court enters a default judgment and the damages do not consist of a sum certain,

the Federal Rules of Civil Procedure provide 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). Here, the plaintiff has provided reasonably detailed affidavits in support

of his request for damages. The Court also provided defendants an opportunity to respond to

request an inquest hearing or respond to plaintiff’s motion. (ECF No. 22). Defendants did not

pursue that opportunity. Thus, the Court sees no reason to delay a determination of plaintiff’s

damages.

B. Damages Requested by Plaintiff

Plaintiff requests the following amounts in damages: 1) $63,282.00 in unpaid overtime

pay; 2) $63,282.00 in liquidated damages on the unpaid overtime claim; 3) $16,495.50 in spread-

of-hours pay; 4) $16,495.50 in liquidated damages on the spread-of-hours claim; and 5) $10,000

for wage notice violations. Plaintiff’s requested damages total $169,555.00. (Marino Decl.,5 Ex.

E6).

1) Unpaid Overtime Wages Under the FLSA and NYLL

Plaintiff seeks reimbursement for unpaid overtime wages under both the FLSA and the

NYLL. (See Compl. ¶¶ 5, 9, 10, 38, 56, 57, 69-75). Pursuant to the FLSA, an employee is

entitled to be paid for overtime hours (i.e., hours exceeding 40 hours per week), at a “rate not

less than one and one-half times the regular rate at which [the employee] is employed.” 29

U.S.C. § 207(a)(1). “Under the FLSA, the ‘regular hourly rate of pay of an employee is

determined by dividing his total remuneration for employment (except statutory exclusions) in

any workweek by the total number of hours actually worked[.]’” Pineda v. Frisolino, Inc., 2017

WL 3835882, at *10 (quoting 29 C.F.R. § 788.109). The regular rate of the employee as defined

in the FLSA, however, “cannot be lower than” the applicable minimum wage. 29 C.F.R. §

778.5; Martinez v. Alimentos Saludables Corp., No. 16 CV 1997, 2017 WL 5033650, at *15

(E.D.N.Y. Sept. 22, 2017). Thus, under the FLSA, overtime pay should be calculated based on

5 Citations to “Marino Decl.” refer to the Declaration of Mark Marino filed on March 5, 2025 in support of

plaintiff’s motion for default judgment, ECF No. 19.

6 Plaintiff filed 9 exhibits, two of which were labeled on the docket as “Exhibit C.” Citations herein to “Ex. E” refer

to the damages chart attached as the 8th exhibit to the Marino Declaration and referred to as “Ex. E” therein, ECF

No. 19-8.

the employee’s regular wage or the statutory minimum wage, “whichever is greater.” Id. at *16

(citing 29 U.S.C. § 207; 29 C.F.R. § 778.107).

Under the NYLL, an employee is entitled to one-and-one-half their regular rate of pay for

hours worked in excess of 40 hours in one workweek. 12 N.Y.C.R.R. §§ 142-2.2, 146-1.4. The

regular rate under the NYLL is calculated “by dividing the employee’s total weekly earnings, not

including exclusions from the regular rate, by the lesser of 40 hours or the actual number of

hours worked by that employee during the work week.” 12 N.Y.C.R.R. § 146-3.5. As with the

FLSA, under the NYLL, courts calculate an employee’s overtime rate using the statutory

minimum wage if the employee’s pay falls below the minimum wage rate. Rosendo v.

Everbrighten Inc., No. 13 CV 7256, 2015 WL 1600057, at *4 (S.D.N.Y. Apr. 7, 2015), report and

recommendation adopted, 2015 WL 4557147 (S.D.N.Y. July 28, 2015).

According to plaintiff’s damages chart: (1) from March 1, 2018 until December 31, 2018,

plaintiff worked 45 hours per week at a regular rate of pay7 of $15.50, when the minimum wage

was $12.00 per hour;8 (2) from January 1, 2019 through June 30, 2019, plaintiff worked 45 hours

per week at a regular rate of pay of $15.00 when the minimum wage was $13.50; (3) from July 1,

2019 through October 31, 2019, plaintiff worked 60 hours per week at a regular rate of $15.00

when the minimum wage was $13.50; (4) from November 1, 2019 through December 31, 2019,

plaintiff worked 84 hours per week at a regular rate of $15.00 per hour when the minimum wage

was $13.50; (5) from January 1, 2020 through March 31, 2020, August 1, 2020 through January

22, 2021, plaintiff worked 84 hours per week at a regular rate of $15.00 per hour when the

7 Plaintiff’s damages chart calculates the regular rate of pay by dividing plaintiff’s weekly pay by hours worked, as

required by the FLSA and NYLL.

8 Although plaintiff does not allege the number of defendants’ employees, plaintiff utilizes the minimum wage for

employers with 10 or fewer employees. See 12 N.Y.C.R.R. §§ 146-1.2(a)(1)(B). At all relevant times, plaintiff was

paid a rate higher than the minimum wage for employers with 10 or fewer employees and the minimum wage for

employers with 11 or more employees. See id. Plaintiff was also paid a rate higher than the federal minimum wage,

$7.25. See 29 U.S.C. § 206(a).

minimum wage was $15.00 per hour; (6) from February 15, 2021 through December 31, 2021,

plaintiff worked 84 hours per week at a regular rate of $16.00 per hour when the minimum wage

was $15.00 per hour; (7) from January 1, 2022 through March 31, 2023, plaintiff worked 84

hours per week at a regular rate of $17.00 per hour when the minimum wage was $15.00; and (8)

from April 1, 2023 through May 29, 2023, plaintiff worked 70 hours per week at a regular rate of

$17.00 when the minimum wage was $15.00 per hour. (Ex. E).

In this case, the NYLL allows for the greater recovery for plaintiff because his pay rates

of between $15.00 and $17.00 per hour exceeded the minimum wage rates under both the FLSA

and NYLL. Thus, using his regular rate of pay calculated in accordance with the NYLL,

plaintiff’s overtime rate per hour was $22.50 for the weeks in which his regular rate was $15.00

per hour, $23.25 for the weeks in which his regular rate was $15.50 per hour, $24.00 for the

weeks in which his regular rate was $16.00 per hour, and $25.50 for the weeks in which his

regular rate was $17.00 per hour.

Using these overtime rates, plaintiff seeks overtime wages in the total amount of

$63,292.00 for the entire period. (Ex. E). Specifically, plaintiff worked 2,538 overtime hours at

a rate of $22.50, 220 overtime hours at a rate of $23.50, 2,024 overtime hours at a rate of $24.00,

and 3,100 overtime hours at a rate of $25.50. (Id.) Thus, plaintiff was owed $189,846 in unpaid

overtime. Plaintiff also worked a total of 10,120 hours at his regular rate, and he was therefore

owed $160,360 in regular wages. (Id.) It total, plaintiff was owed $350,206. According to

plaintiff’s damages chart, defendants paid plaintiff $286,924 of that amount. (Id.) Thus,

defendants failed to pay plaintiff $63,282 in overtime wages.

Therefore, the Court respectfully recommends that plaintiff be awarded $63,282 in

damages for unpaid overtime hours worked.

2) Plaintiff’s Spread-of-Hours Premiums Claim

Plaintiff alleges that, from November 2019 through March 2023, he regularly worked 12

hours per day, seven days per week. (Ex. E). He alleges that even though he worked more than

10 hours per day for this period, he did not receive spread-of-hours premiums for these days.

(Compl. ¶¶ 5, 7, 56, 81).

Plaintiff has calculated that he is owed $16,495.50 in spread-of-hour premium damages

for the days he worked 12 hours per day. However, the majority of courts in this circuit have

held that spread of hours pay under the NYLL are available only to workers earning at or below

the minimum wage. See Sosnowy v. A. Perri Farms, Inc., 764 F. Supp. 2d 457, 474 (E.D.N.Y.

2011); Jenkins v. Hanac, Inc., 493 F. Supp. 2d 556 (E.D.N.Y. 2007); Singh v. Patel, No. 12 CV

3204, 2013 WL 2190153, at *2 (E.D.N.Y. May 16, 2013); Qiu Hua Tan v. Voyage Express Inc.,

No. 15 CV 6202, 2017 WL 2334969, at *3–4 (E.D.N.Y. May 25, 2017); Luna v. Gon Way

Constr., Inc., No. 16 CV 1411, 2017 WL 835321, at *11 (E.D.N.Y. Feb. 14, 2017), report and

recommendation adopted by, 2017 WL 835174 (E.D.N.Y. Mar. 2, 2017).

At all relevant times, plaintiff was paid a rate above minimum wage. (See supra at 14–

15). Thus, plaintiff is not entitled to spread-of-hours pay.

3) Liquidated Damages Under the FLSA and NYLL

Plaintiff also seeks liquidated damages for the defendants’ wage violations pursuant to

the FLSA and NYLL. (Compl. ¶ 10; Mot.9 at 8–10).

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.

9 Citations to “Mot.” refer to plaintiff’s Motion for Default Judgment, filed on March 5, 2025, ECF No. 18.

Lab. L. §§ 198(1-a) and 663(1). (See Pl.’s Mem.10 at 8). Although plaintiff has proven that he

was not paid the proper wages under both the FLSA and the NYLL, and thus might technically

be entitled to liquidated damages under both statutes, plaintiffs “are not entitled to recover twice

for the same injury.” Charvac v. M & T Project Managers of N.Y., Inc., 2015 WL 5475531, at *4

(internal quotation marks and citations omitted); Llolla v. Karen Gardens Apartment Corp., 2014

WL 1310311, at *11; Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., 2010 WL 4159391, at

*3. Thus, having established wage violations under both laws, plaintiffs “may recover under the

statute which provides the greatest amount of damages[.]” Charvac v. M & T Project Managers

of N.Y., Inc., 2015 WL 5475531, at *4 (quoting Jiao v. Shi Ya Chen, No. 03 CV 0165, 2007 WL

4944767, at *17 (S.D.N.Y. Mar. 30, 2007)).

Prior to November 24, 2009, an employee could recover liquidated damages under the

NYLL if the underpayment was found to be willful. N.Y. Lab. Law § 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 the

FLSA and the NYLL, the employer now 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

10 References to “Pl.’s Mem.” refer to plaintiff’s Memorandum of Law in support of the Motion for Default

Judgment, dated March 5, 2025, ECF No. 20.

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) (awarding 100% liquidated damages under the FLSA

standard) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)).

Since the defendants have chosen not to appear in this action and have not established

that they had a good faith basis to believe that their underpayment of wages complied with the

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

damages. See Xi Qun Xu v. JNP Bus Serv. Inc., No. 16 CV 245, 2018 WL 1525799, at *9

(E.D.N.Y. Feb. 26, 2018), report and recommendation adopted in part, rejected in part on other

grounds, 2018 WL 1525662 (E.D.N.Y. Mar. 28, 2018) (recommending the award of liquidated

damages under the NYLL for overtime wages, minimum wages, and spread-of-hours premiums).

Since plaintiff stands to recover more under the NYLL than under the FLSA, the NYLL

governs plaintiff’s recovery of liquidated damages. Charvac v. M & T Project Managers of N.Y.,

Inc., 2015 WL 5475531, at *4. Accordingly, the Court respectfully recommends that plaintiff be

awarded liquidated damages in an amount equal to 100% of the sum of the overtime wages owed

under the NYLL, totaling $62,282.

4) Wage Statement and Notice Penalties

Plaintiff requests $10,000 in wage notice and wage statement penalties. (Mot. at 8).

Under the WTPA, as described above, an employer must provide wage notices, N.Y. Lab. L. §

195(1), and wage statements, N.Y. Lab. L. § 195(3). A plaintiff may recover statutory damages

of $250 for each workday when the violations occurred, with a cap of $5,000, for each of the two

provisions violated. N.Y. Lab. L. §§ 195(1), 195(3). Plaintiff worked for defendants from

approximately 2015 until approximately June 2023. Although plaintiff does not provide his

exact dates of employment, he alleges he worked 5 days per week from March 2018 until June

2019, 6 days per week from July 2019 through October 2019, and 7 days per week from

November 2019 through March 31, 2020, August 1, 2020 through January 22, 2021, February

15, 2021 through March 31, 2023, and April 2023 through May 29, 2023—approximately 1,614

days. (Soto Gomez Decl.11 ¶¶ 7-12; Ex. E). Thus, because plaintiff alleges violations of Section

1951(1) and 1953(3) on each day worked, and because the statutory damages of $250 per day

would exceed the maximum damages permitted under the WTPA, plaintiff may be awarded the

maximum of $10,000 in statutory damages. See Soriano v. Amoun Inc., No. 16 CV 4257, 2017

WL 11745947, at *3 (S.D.N.Y. Mar. 16, 2017).

Given that plaintiff has adequately stated claims under the WTPA, and defendants have

failed to appear to contest plaintiff’s claims, the Court respectfully recommends that plaintiff be

awarded $10,000 in wage statement and notice penalties.

5) Pre-Judgment Interest

Under New York law, a plaintiff is entitled to interest on all wages awarded, calculated at

a rate of 9% per annum. See N.Y.C.P.L.R. § 5004. Pre-judgment 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

11 Citations to “Soto Gomez Decl.” refer to the plaintiff’s declaration submitted as Exhibit A to the Ames

Declaration, ECF No. 19-1.

G Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 261 (S.D.N.Y. Oct. 21, 2008). However, the

Second Circuit has held that, as liquidated damages and prejudgment interest are not functional

equivalents under the NYLL, a prevailing plaintiff may recover prejudgment interest for

judgments rendered under the NYLL. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d

Cir. 1999).12

In this case, since the Court did not award plaintiff damages on his FLSA claims,13 there

is no impediment to awarding liquidated damages and interest on plaintiff’s NYLL claims.

Accordingly, plaintiff is entitled to pre-judgment interest on his overtime claim.

6) Attorney’s Fees and Costs

Both the FLSA and NYLL allow for an award of attorney’s fees. See 29 U.S.C. § 216(b);

N.Y. Lab. Law §§ 198(4), 663(1); Khalil v. Original Old Homestead Rest., Inc., 657 F. Supp. 2d

470, 473 (S.D.N.Y. 2009) (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”); see, e.g., Torres v. Gristede’s Operating Corp., No. 04 CV

3316, 2012 WL 3878144, at *1 (S.D.N.Y. Aug. 6, 2012), aff’d, 519 Fed. App’x 1, 3 (2d Cir.

2013).

12 Where a plaintiff receives damages under both the FLSA and the NYLL, prejudgment interest only accrues on

those parts of the award for which liquidated damages are not awarded under the FLSA. Yuquilema v. Manhattan’s

Hero Corp., 2014 WL 4207106, at *11; Yu G Ke v. Saigon Grill, Inc., 595 F. Supp. 2d at 261. Further, pre-judgment

interest may not be awarded under the NYLL in addition to liquidated damages that are awarded for violations of the

FLSA. See Santillan v. Henao, 822 F. Supp. 2d 284, 298 (E.D.N.Y. 2011); Gunawan v. Sake Sushi Rest., 897 F.

Supp. 2d 76, 92–93 (E.D.N.Y. 2012); see also Hengjin Sun v. China, 2016 WL 1587242, at *5–6 (citing cases and

holding that plaintiffs are entitled to pre-judgment interest on their non-overlapping NYLL wage claims at a simple

rate of 9% per year). Since the Court has not recommended an award of damages under the FLSA, this limitation on

pre-judgment interest does not apply.

13 Although the plaintiff established that defendants violated both the FLSA and NYLL, the Court only recommends

an award of damages and liquidated damages under the NYLL.

7) 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. Kahlil v. Original Old Homestead Rest., Inc., 657 F.

Supp. 2d at 473 (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 added))); see also Torres v.

Gristede’s Operating Corp., 2012 WL 3878144, at *1. Similarly, the NYLL provides for an

award of reasonable attorney’s fees when the employee prevails on a wage claim. N.Y. Lab.

Law § 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.” Kahlil 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 defendants have defaulted, plaintiff is a prevailing party and therefore

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

III. Calculation of Reasonable Attorney’s Fees

A. 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, 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) (quoting Hensley v. Eckerhart, 461 U.S. at 433), report and

recommendation adopted, 2013 WL 1622713 (E.D.N.Y. Apr. 15, 2013); see also Adusumelli v.

Steiner, Nos. 08 CV 6932, 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 166–67 (quoting

Perdue v. Kenny A., 559 U.S. at 553). 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., 559

U.S. at 553); 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.” Millea v. Metro-North R.R. Co., 658

F.3d at 167. 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 (discussing

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).

B. Analysis

In this case, plaintiff was represented by Mark Marino, Esq. and Caralina Sojo, Esq.14

Ms. Sojo has been an attorney since 2018, admitted to practice in Colombia. (Mot. at 13). She

received a Master of Laws degree in 2019 to practice law in the United States and has focused

her practice on intellectual property litigation and enforcement. (Id.; Ex. F15). Ms. Sojo bills at a

rate of $400 per hour and spent approximately 0.8 hours on this case. (Id.; Ex. F). Mr. Marino

has been an attorney since 2001, admitted to practice in New York and Illinois, and represents

clients in matters involving commercial litigation, employment, civil rights, and wage and hour

actions. (Id.; Ex. F). He bills at a rate of $350 per hour and spent approximately 3.1 hours on

this case. (Id.; Ex. F). Counsel also employed paralegals who billed at a rate of $125 per hour

and spent approximately 5.3 hours on this case. (Id.; Ex. F).

14 Plaintiff is also represented by Robert Jun, Esq. (See ECF No. 21). Plaintiff does not seek reimbursement for Mr.

Jun’s fees. Additionally, Mr. Jun’s appearance was entered after plaintiff’s motion for default judgment was filed.

Therefore, the Court does not include Mr. Jun in its fee analysis or award.

15 Citations to “Ex. F” refer to the invoice for attorney’s fees attached as Exhibit 5 to the Marino Declaration, ECF

No. 19-9.

In accordance with New York State Ass’n for Retarded Children, Inc. v. Carey, counsel

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, and a description of services performed. 711 F.2d 1136, 1148 (2d Cir. 1983).

(See Ames Decl., Ex. 12).

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). Additionally, the

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

constitutes a reasonable hourly rate:

(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 attorney’s customary hourly rate;

(6) whether the fee is fixed or contingent; (7) the time limitations

imposed by the client or the circumstances; (8) the amount

involved in the case 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 at 717–19, 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.) that an 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 19, 52

(E.D.N.Y. 2015). 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) (citations and internal quotation marks omitted) (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). 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).

In a recent decision of this court, the Honorable Frederic Block found that the prevailing

rates for partners in this district is $450 to $650 per hour and that the prevailing rate for

paralegals is $100 to $150. Rubin v. HSBC Bank USA, 763 F. Supp. 3d 233, 243–44 (E.D.N.Y.

2025). Here, Mr. Marino’s and Ms. Sojo’s requested hourly rates are slightly lower than the

rates approved in Rubin and therefore, this Court finds them to be reasonable. See, e.g., Harbus

v. Vosa TV Inc., No. 24 CV 3572, 2025 WL 1153818, at *3 (E.D.N.Y. Apr. 21, 2025) (relying

on Rubin to increase the hourly rate of a senior partner to $650 in a default judgment action); see

also Moore v. Rubin, 766 F. Supp. 3d 423, 432 (E.D.N.Y. 2025) (relying on the Johnson factors

to set partners’ hourly rates at $1000 and senior attorney’s hourly rate at $500, even though the

rates exceed those found reasonable in Rubin). The paralegals’ requested rates are also in line

with the rates approved in Rubin and therefore, this Court finds them also to be reasonable.

Thus, the Court respectfully recommends that counsel be awarded fees calculated at the

hourly rate of $350 for Mr. Marino, $400 for Ms. Sojo, and $125 for paralegals, consistent with

rates generally awarded in this district.

2) Hours Billed

Turning to the number of hours billed, Mr. Marino represents that he spent 3.1 hours on

this matter, that Ms. Sojo spent 0.8 hours on this matter, and that the paralegals spent 5.3 hours

on this case. (Ex. F).

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. 1993) (reducing fees by 30% for vague entries with

insufficient descriptions of work performed), aff’d in part, vacated in part, and remanded on

other grounds sub nom., Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), 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, the time spent on this matter is far less than the upper range permitted in other

wage and hour cases. Accordingly, 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 $2,067 in attorney’s fees, based on 0.8 hours billed

by Ms. Sojo at a rate of $400 per hour, 3.1 hours billed by Mr. Marino at a rate of $350 per hour,

and 5.3 hours billed by paralegals at a rate of $125. (See Ex. F).

3) Costs

Counsel also seeks $483.20 in costs. (Ex. F). Prevailing parties are generally able to

recover costs. However, recovery is available only for identifiable costs. Moon v. Gab Kown,

No. 99 CV 11810, 2002 WL 31512816, at *8 (S.D.N.Y. Nov. 8, 2002) (quoting Kuzma v. IRS,

821 F.2d 930, 933–34 (2d Cir. 1987). “[T]he party moving for costs bears the burden of

demonstrating the reasonableness of each charge; failure to provide adequate documentation of

costs incurred will limit, or even defeat, recovery.” John v. Demaio, No. 15 CV 6094, 2016 WL

7469862, at *12 (E.D.N.Y. Sept. 26, 2016). Further, a court cannot award costs without the

underlying invoices. Id.

Counsel provides a list of costs, including “Servico: S1909775,” “DGR: Work Order

714664,” “DGR: Work Order 714667,” and “DGR: Work Order 714351.” Counsel does not

describe these costs nor provide underlying invoices. The Court is unable to determine the

reasonableness of these costs. Accordingly, the Court denies counsel’s request for costs.

IV. Post-Judgment Interest

Additionally, the Court respectfully recommends that plaintiff is entitled to post-judgment

interest under 28 U.S.C. § 1961(a). Under Section 1961(a), interest is calculated “from the date

of the entry of the 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). The Second Circuit

has held that post-judgment interest is mandatory on all awards in civil cases as of the date

judgment is entered. Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996). Accordingly, it is

respectfully recommended that plaintiff be awarded post-judgment interest at the statutory rate,

as calculated by the Clerk of Court, to the extent that any accrues after entry of judgment.

V. Damages Chart

Overtime Wages16 $ 62,282.00

Liquidated Damages $ 62,282.00

Wage Statement and Notice $ 10,000.00

Penalties

TOTAL DAMAGES $ 134,564

Attorney’s Fees $ 2,067.50

TOTAL AWARD $ 126,631.50

VI. Automatic Penalty for Failure to Pay

Finally, the NYLL provides that, “[a]ny judgment or court order awarding remedies under

this section [sections 198 and 663, as does the judgment applied for herein] shall provide that if

any amounts remain unpaid upon the expiration of ninety days following issuance of judgment,

or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is

16 Prejudgment interest is applied to overtime wages but not to liquidated damages or the wage statement and notice

penalties. “‘When unpaid wages were incurred at various times…[s]imple prejudgment interest is calculated from a

singular, midpoint date…through the date judgment is entered.’” Gortat v. Capala Bros., 949 F. Supp. 2d 374, 386

(E.D.N.Y. 2013) (quoting Maldonado v. La Nueva Rampa, Inc., No. 10 CV 8195, 2012 WL 1669341, at *11

(S.D.N.Y. May 14, 2012)). The first date plaintiff alleges wage violations occurred is March 1, 2018 and the last

date is May 29, 2023. (See Ex. E). The midpoint of plaintiff’s claims is thus October 13, 2020. Prejudgment

interest is therefore calculated by multiplying unpaid overtime pay by 9% per annum from October 13, 2020 until

the date of judgment.

later, the total amount of judgment shall automatically increase by fifteen percent.” N.Y. Lab.

Law §§ 198(4), 663(4). It further provides that costs and attorney’s fees incurred in enforcement

of a judgment shall be awarded to the plaintiff. Id. The Court respectfully recommends that the

district court include such language in its final judgment, should it adopt this Report and

Recommendation.

CONLCUSION

The Court respectfully recommends that plaintiff’s motion for entry of a default judgment

be granted, and that plaintiff be awarded $134,564 in damages as follows: (1) $62,282 in unpaid

overtime wages plus any prejudgment interest; (2) $62,282 for liquidated damages; and (3)

$10,000 for wage statement and notice penalties. The Court also respectfully recommends that

plaintiff’s counsel be awarded $2,067 in fees.

Any objections to this Report and Recommendation must be filed with the Clerk of the

Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (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 Cnty., 517 F.3d 601, 604 (2d Cir.

2008).

The Clerk is directed to send copies of this Order to the parties either electronically

through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.

Dated: Brooklyn, New York

December 31, 2025

/s/ Cheryl L. Pollak

Cheryl L. Pollak

United States Magistrate Judge

Eastern District of New York