# Opinion

> District Court, E.D. New York · December 31, 2025

URL: https://www.frixlaw.com/law-library/cases/11264289

## Case

- **Full name:** Javier Soto Gomez, individually and on behalf of others similarly situated v. 4 Guys Realty, Inc. (D/B/A Grill Zone), Fares Kassim Yafai, Mansoor Kassim Shaibi, and Aisha Naser Saleh
- **Court:** District Court, E.D. New York
- **Decided:** December 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11264289

## How later opinions describe it (automated extraction)

- finding an overall reduction of 15% warranted based on vague descriptions of work performed
- 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))

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
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.

------------------------------------------------------------X
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11264289. Public record. Not legal advice.