The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- x
ARACELI VAZQUEZ ROMERO, individually :
and on behalf of others similarly situated, :
:
Plaintiff, : REPORT AND
: RECOMMENDATION
-against- :
: 23-CV-6300 (OEM)(MMH)
LA MORENITA FRUIT MARKET CORP :
(d/b/a La Guadalupe Fruits & Vegetables), :
GABINO ARTURO RAMOS, and PAMELA :
RAMOS MEJIA, :
:
Defendants. :
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MARCIA M. HENRY, United States Magistrate Judge:
Plaintiff Araceli Vazquez Romero brings this wage and hour “collective” action against
Defendants La Morenita Fruit Market Corporation, d/b/a La Guadalupe Fruits & Vegetables
(“La Morenita”), Gabino Arturo Ramos, and Pamela Ramos Mejia, alleging violations of the
Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §§ 201 et seq., the New York Labor Law
(the “NYLL”), N.Y. Lab. Law §§ 190 and 650 et seq., and related regulations. (See generally
Compl., ECF No. 1.)1 Before the Court is Plaintiff’s third motion for default judgment
pursuant to Federal Rule of Civil Procedure 55(b)(2) and Local Civil Rule 55.2. (See generally
Pl.’s Mot., ECF No. 27.) The Honorable Orelia E. Merchant referred the motion for report
and recommendation. For the reasons set forth below, the Court respectfully recommends that
the motion should be granted in part and denied in part.
1 All citations to documents filed on ECF are to the ECF document number (i.e., “ECF No. ___”)
and pagination “___ of ___” in the ECF header unless otherwise noted. Citations to the Local
Civil Rules are to the rules effective January 2, 2025, which were the operative rules when Plaintiff
filed the instant motion.
I. BACKGROUND
A. Factual Allegations
The following facts are taken from the Complaint, whose allegations are assumed to be
true for the purposes of establishing liability. Bricklayers & Allied Craftworkers Loc. 2 v.
Moulton Masonry & Constr., LLC, 779 F.3d 182, 187–90 (2d Cir. 2015).
La Morenita is a New York corporation with its principal place of business located at
4807 5th Avenue, Brooklyn, New York, where it operates and controls a minimart under the
name “La Guadalupe Fruits and Vegetables” (“La Guadalupe”). (Compl., ECF No. 1 ¶¶ 17–
18.) Ramos is the owner, officer, and/or agent of La Morenita, who determines the wages and
compensation of La Morenita’s employees, establishes the schedules of the employees,
maintains employee records, and has the authority to hire and fire employees. (Id. ¶ 19.) Mejia
is the manager of La Morenita and performs the same function as Ramos regarding control of
La Morenita’s employees. (Id. ¶ 20.)
Defendants employed Plaintiff as a cashier and food clerk at La Guadalupe from
approximately March 2022 to May 24, 2023. (Id. ¶¶ 4, 15, 33–34.) Plaintiff’s work schedule
during her employment with Defendants was as follows: from March 2022 to April 2022, she
worked six days per week for an average of 60 to 61.5 hours per week; from May 2022 to
August 2022, she worked six days per week for an average of 60 to 65 hours per week; from
September 2022 to April 2023, she worked six days per week for an average of 64 to 68 hours
per week; from April 17, 2023 to April 30, 2023, she worked seven days per week for an
average of 84 hours per week; and from May 1, 2023 to May 24, 2023, she worked six days
per week for an average of 76 hours per week. (Id. ¶¶ 38–42.) Throughout her entire
employment, Defendants paid Plaintiff’s wages in cash as follows: from March 2022 to June
2022, she was paid $650.00 per week; from July 2022 to August 2022, she was paid $750.00
per week; and from September 2022 to May 24, 2023, she was paid $810.00 per week. (Id.
¶¶ 43–46.) Defendants did not pay Plaintiff at all for her last three working days. (Id. ¶ 47.)
Additionally, Plaintiff alleges that her pay did not change even when Defendants
required her to stay later or work longer than her usual schedule. (Id. ¶ 48.) For example, in
approximately May 2022, Defendants required Plaintiff to work up to four extra hours past her
scheduled departure time twice a month and did not pay her for the additional work. (Id. ¶ 49.)
Defendants did not grant Plaintiff breaks or meal periods throughout her employment, did not
track her time, and did not require her to track her time either. (Id. ¶¶ 50–51.) Defendants
frequently paid Plaintiff her wages up to two weeks late. (Id. ¶ 52.) Defendants did not provide
notice in English or Spanish regarding Plaintiff’s pay rates, payday, or other required
information, nor did they provide an accurate statement of wages. (Id. ¶¶ 53–55.)
B. Procedural History
Plaintiff initiated this action on August 22, 2023, alleging that Defendants failed to pay
minimum and overtime wages under the FLSA and NYLL, and failed to pay spread of hours
pay and to provide wage statements and wage notices under the NYLL. (See generally Compl.,
ECF No. 1.) Plaintiff served the summons and Complaint on La Morenita in August 2023 and
on the Individual Defendants in September 2023. (Affs. of Service, ECF Nos. 6–8.) After
Defendants failed to answer or otherwise respond to the Complaint, the Clerk of Court entered
default on January 8, 2024. (ECF No. 14.)
Plaintiff initially moved for default judgment on March 22, 2024. (Pl.’s 1st Mot., ECF
No. 15.) Then-Magistrate Judge Sanket J. Bulsara denied the motion without prejudice for
failing to properly mail all motion papers to Defendants. (Sept. 26, 2024 Order.) The case
was reassigned to the undersigned in December 2024. (Dec. 19, 2024 Dkt. Entry.) Plaintiff
moved for a second motion for default judgment on January 24, 2025. (Pl.’s 2d. Mot., ECF
No. 21.) Judge Merchant referred the motion for report and recommendation. (Jan. 27, 2025
Order Referring Mot.) After the Court’s preliminary review of Plaintiff’s second motion,
Plaintiff was ordered to show cause as to why her motion should not be denied for failing to
file an affidavit or declaration showing compliance with the Servicemembers Civil Relief Act
as to the Individual Defendants and proof of mailing the motion to all Defendants at their
respective last known home or business addresses. (Mar. 19, 2025 Order to Show Cause.)
This Court granted Plaintiff’s request to withdraw her second motion for default judgment and
to file another default judgment motion. (Pl.’s Ltr., ECF No. 24; Apr. 7, 2025 Order.)
On April 30, 2025, Plaintiff filed the instant motion, seeking damages including unpaid
minimum and overtime wages, spread of hours pay, liquidated damages, pre-judgment interest,
and attorneys’ fees and costs. (See generally Pl.’s 3d. Mot., ECF No. 27; Pl.’s Mem., ECF
No. 29.) Judge Merchant referred Plaintiff’s third motion for report and recommendation.
(May 1, 2025 Order Referring Mot.) To date, Defendants have not appeared in this case or
responded to Plaintiff’s motion.
II. DEFAULT JUDGMENT STANDARD
Rule 55 of the Federal Rules of Civil Procedure employs a two-step process for a party
to obtain a default judgment. Fed. R. Civ. P. 55(a)–(b); New York v. Green, 420 F.3d 99, 104
(2d Cir. 2005); Valerio v. K.A.M. Food Store, Inc., No. 19-CV-593 (MKB)(LB), 2019 WL
7764707, at *2 (E.D.N.Y. Dec. 26, 2019), adopted by 2020 WL 473614 (E.D.N.Y. Jan. 29,
2020). First, when a party uses an affidavit or other proof to show that a party has “failed to
plead or otherwise defend” against an action, the clerk shall enter a default. Fed. R. Civ. P.
55(a). If a claim is for “a sum certain or a sum that can be made certain by computation,” the
clerk can enter judgment. Fed. R. Civ. P. 55(b)(1). Second, and “[i]n all other cases, the party
must apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2); Victoriano Gonzalez
v. Victoria G’s Pizzeria LLC, No. 19-CV-6996 (DLI)(RER), 2021 WL 6065744, at *5
(E.D.N.Y. Dec. 22, 2021), adopted by 2022 WL 842666 (E.D.N.Y. Mar. 22, 2022). To “enter
or effectuate judgment” the Court is empowered to “(A) conduct an accounting; (B) determine
the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate
any other matter.” Fed. R. Civ. P. 55(b)(2).
The decision to grant or deny a default motion is “left to the sound discretion of a
district court.” Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV)(MMH), 2023 WL
6338666, at *3 (E.D.N.Y. Sept. 29, 2023) (citing Shah v. New York State Dep’t of Civ. Serv.,
168 F.3d 610, 615 (2d Cir. 1999)) (cleaned up), adopted by Order Adopting R. & R., Esquivel
v. Lima Rest. Corp., No. 20-CV-2914 (ENV)(MMH) (E.D.N.Y. Nov. 30, 2023). The Court
must draw all reasonable inferences in favor of the movant. See Finkel v. Romanowicz, 577
F.3d 79, 84 (2d Cir. 2009). However, “[a] default . . . only establishes a defendant’s liability
if those allegations are sufficient to state a cause of action against the defendant.” Double
Green Produce, Inc. v. F. Supermarket Inc., 387 F. Supp. 3d 260, 265 (E.D.N.Y. 2019)
(quoting Taizhou Zhongneng Imp. & Exp. Co., Ltd. v. Koutsobinas, 509 F. App’x 54, 56 (2d
Cir. 2013) (internal quotation marks omitted)).
III. JURISDICTION AND VENUE
A. Subject Matter Jurisdiction
“Before granting a motion for default judgment, a court must first determine whether it
has subject matter jurisdiction over the action.” Mt. Hawley Ins. Co. v. Pioneer Creek B LLC,
No. 20-CV-150 (ALC), 2021 WL 4427016, at *3 (S.D.N.Y. Sept. 27, 2021) (citing City of
New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 125–27 (2d Cir. 2011)). The Court has
original jurisdiction over Plaintiff’s FLSA claims pursuant to 29 U.S.C. § 216(b). See 28
U.S.C. § 1331. The Court may also exercise supplemental jurisdiction over Plaintiff’s NYLL
claims because they arise out of the same facts and circumstances as the FLSA claims. 28
U.S.C. § 1367(a); McLaughlin v. Onanafe Mgmt. Sols. LLC, No. 22-CV-6792 (PKC)(MMH),
2024 WL 4184485, at *3 (E.D.N.Y. Sept. 14, 2024), adopted by 2024 WL 4355485 (E.D.N.Y.
Sept. 30, 2024) (cleaned up).
B. Personal Jurisdiction
“[B]efore a court grants a motion for default judgment, it may first assure itself that it
has personal jurisdiction over the defendant.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading
Corp., 619 F.3d 207, 213 (2d Cir. 2010). The three requirements for personal jurisdiction are:
(1) the plaintiff’s service of process upon the defendant must have been procedurally proper;
(2) there must be a statutory basis for personal jurisdiction that renders such service of process
effective; and (3) the exercise of personal jurisdiction must comport with constitutional due
process principles. Waldman v. Palestine Liberation Org., 835 F.3d 317, 327 (2d Cir. 2016)
(quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir.
2012)).
The Court has personal jurisdiction over Defendants. First, Plaintiff properly served
La Morenita by delivering copies of the summons and Complaint to the New York Secretary
of State. (Aff. of Service, ECF No. 6.) This method of service on a corporation complies with
federal and state procedural rules. Fed. R. Civ. P. 4(h)(1)(A), (e)(1); N.Y. C.P.L.R.
§ 311(a)(1); N.Y. Bus. Corp. Law § 306(b)(1). Plaintiff also properly served Ramos and Mejia
by delivering a copy of the summons and Complaint to a person of suitable age and discretion
at their business address and by mailing a copy of process to Ramos and Mejia at their business
address. (Affs. of Service, ECF Nos. 7–8.) These service methods follow federal and state
rules for service on an individual. Fed. R. Civ. P. 4(e)(1); N.Y. C.P.L.R. § 308(2); see Perez
v. Mesa Azteca Corp., No. 23-CV-9374 (HG)(TAM), 2024 WL 5274641, at *5 (E.D.N.Y. Dec.
5, 2024) (recognizing that similar service methods on individual defendant complied with N.Y.
C.P.L.R. § 308(2)), adopted by Order Adopting R. & R., Perez v. Mesa Azteca Corp., No. 23-
CV-9374 (HG)(TAM) (E.D.N.Y. Dec. 30, 2024).
Second, the Court has general jurisdiction over La Morenita, because it is a New York
Corporation “‘doing business’ in New York.” Francis v. Ideal Masonry, Inc., No. 16-CV-
2839 (NGG)(PK), 2018 WL 4292171, at *3 (E.D.N.Y. Aug. 3, 2018) (citing Daimler AG v.
Bauman, 134 S. Ct. 746, 760 (2014) and N.Y. C.P.L.R. § 301), adopted by 2018 WL 4288625
(E.D.N.Y. Sept. 7, 2018). Although Plaintiff does not allege Ramos or Mejia’s domicile, the
Court would have general jurisdiction over them if they were domiciled in New York. See
Francis, 2018 WL 4292171 at *3. If they were not, “a federal court in New York may exercise
personal jurisdiction over a non-resident defendant based either on general jurisdiction, under
[N.Y.] C.P.L.R. § 301, or specific jurisdiction, under [N.Y.] C.P.L.R. § 302.” Weitsman v.
Levesque, No. 17-CV-727 (MAD)(DEP), 2019 WL 7503022, at *3 (N.D.N.Y. Jan. 11, 2019)
(cleaned up). Ramos and Mejia conducted business within the state and possessed operational
control and ownership interest in, or controlled significant functions of, La Morenita. (Compl.,
ECF No. 1 ¶ 22.) This sufficiently establishes specific jurisdiction. See Jimenez v. Green
Olive Inc., 744 F. Supp. 3d 221, 241 (E.D.N.Y. 2024) (“Defendant Mr. Saleh serves or served
as owner, manager, principal, or agent of the Corporate Defendant and thus, he transacted
business in New York.”) (cleaned up).
Third, “[s]ince jurisdiction is proper for all Defendants under [the] CPLR, the Court’s
exercise of personal jurisdiction comports with constitutional due process.” Francis, 2018 WL
4292171, at *3. Each defendant therefore “has sufficient contacts with the forum state to
justify the court’s exercise of personal jurisdiction” and “it is reasonable to exercise personal
jurisdiction under the circumstances of the particular case.” Licci, 673 F.3d at 60 (citation
omitted).
C. Venue
Plaintiffs may file suit in any judicial district in which (1) “any defendant resides, if all
defendants are residents of the State in which the district is located”; (2) “a substantial part of
the events or omissions giving rise to the claim occurred”; or if no district qualifies, then (3)
“any judicial district in which any defendant is subject to the court’s personal jurisdiction with
respect to such action.” 28 U.S.C. § 1391(b). Venue is proper in this district because the
failure to pay wages and to provide wage and notice statements occurred during Plaintiff’s
employment by La Morenita at La Guadalupe in Brooklyn, New York. (Compl., ECF No. 1
¶¶ 15, 18, 21.)
IV. PROCEDURAL COMPLIANCE
Plaintiff does not demonstrate that she completed the procedural steps to comply with
the requirements for default judgment motions.
First, Plaintiff did not comply with Local Civil Rule 55.2(a)(1)(C), which requires that
“any party seeking a default judgment must file an affidavit or declaration showing that . . . the
party against whom judgment is sought is not known to be a minor or an incompetent
person . . . .” Local Civ. R. 55.2(a)(1)(C). Plaintiff failed to include this affidavit regarding
Ramos and Mejia, despite the Court’s warnings that failure to comply with the Local Civil
Rules warranted denial of default judgment. (See Sept. 26, 2024 Order; Mar. 19, 2025 Order
to Show Cause.) Given that this is Plaintiff’s third attempt to secure default judgment, the
Court declines to excuse this procedural deficiency. Accordingly, the Court respectfully
recommends that default judgment should be denied as to Ramos and Mejia for failure to
comply with this district’s Local Rules.
Second, even if Plaintiff had fully complied with the Local Civil Rules, default
judgment should be denied as to Ramos and Mejia for failure to comply with the
Servicemembers Civil Relief Act (“SCRA”). Pursuant to the SCRA, “[i]n a default judgment
action, a plaintiff is required to file an affidavit that states whether the defendant is serving in
the military and must show necessary facts in support of the affidavit.” Lopez v. Metro &
Graham LLC, No. 22-CV-332 (CBA)(RER), 2022 WL 18809176, at *5 (E.D.N.Y. Dec. 16,
2022), adopted by 2023 WL 2140418 (E.D.N.Y. Feb. 21, 2023) (citing 50 U.S.C.
§ 3931(b)(1)). Failure to comply with these requirements is sufficient to deny default
judgment. Windward Bora, LLC v. Ortiz, No. 21-CV-4154 (MKB)(JMW), 2022 WL
3648622, at *5 (E.D.N.Y. July 5, 2022), adopted by 2022 WL 3647586 (E.D.N.Y. Aug. 24,
2022).
Despite the Court’s admonitions about the SCRA’s requirements, Plaintiff fails to
demonstrate compliance with the SCRA as of September 2023, when Ramos and Mejia were
served with process. (See Mar. 19, 2025 Order to Show Cause (identifying non-compliance
with the SCRA as grounds for denying default judgment).) The process server’s affidavits of
service do not state any investigation into either Defendant’s status as a military
servicemember as of September 2023 when the summons and Complaint were served on
Ramos or Mejia. (ECF Nos. 7–8.) Instead, the process server delivered the summons and
Complaint to a “co-worker” at La Guadalupe for each of the Individual Defendants and mailed
the same to their actual place of business. (Id.) “In other words . . . Plaintiff does not proffer
any other information about the process server’s attempts to confirm [Ramos and Mejia’s]
military status before Plaintiff requested default. On this record, the Court cannot find
compliance with the SCRA.” Tene v. Neuehaus Studios Inc., No. 23-CV-2040 (NRM)(MMH),
2024 WL 1270816, at *3 (E.D.N.Y. Mar. 26, 2024), adopted by Order Adopting R. & R., Tene
v. Neuehaus Studios Inc., No. 23-CV-2040 (NRM)(MMH) (Sept. 20, 2024).
Plaintiff also fails to show that Ramos and Mejia were not active U.S. military
servicemembers when the instant default judgment motion was filed. According to Plaintiff,
“[u]pon information and belief,” Ramos and Mejia are not active servicemembers because she
“regularly saw them at La Guadalupe” where she worked. (Pl.’s Decl., ECF No. 28-6 ¶¶ 22–
23.) But “[t]he non-military affidavit must be based not only on an investigation conducted
after the commencement of an action or proceeding but also after a default in appearance by
the party against whom the default judgment is to be entered.” Argila as Tr. for Pointers,
Cleaners & Caulkers Welfare, Pension & Annuity Funds v. Danco Builders Grp., Inc., No. 23-
CV-4165 (NRM)(RML), 2025 WL 2469313, at *1 (E.D.N.Y. Aug. 21, 2025) (citation
omitted), adopted by Order Adopting R. & R., Argila as Tr. for Pointers, Cleaners & Caulkers
Welfare, Pension & Annuity Funds v. Danco Builders Grp., Inc., No. 23-CV-4165
(NRM)(RML), (E.D.N.Y. Sept. 27, 2025). Plaintiff’s observations during her employment in
2022 and 2023 cannot support a reasonable inference about Ramos and Mejia’s active duty
status in 2025, when she sought default judgment for the third time. And Plaintiff does not
include any information about her own attempts to investigate Ramos or Mejia’s active
military status since filing this lawsuit, including, for example, a search through the
Department of Defense’s Service Members Civil Relief Act website. See, e.g., Tene, 2024
WL 1270816, at *3 n.7 (“‘Plaintiff’s burden in this regard is not a heavy one, as the Department
of Defense maintains a Servicemembers Civil Relief Act website for the purposes of, among
other things, determining whether an individual is on active duty.’”) (quoting Pinela Jurado v.
Sabor Hispano, Inc., No. 20-CV-1104 (RPK)(VMS), 2021 WL 11690645, at *7 (E.D.N.Y.
Aug. 5, 2021)). Ultimately, the lack of sufficient evidence to show diligent investigation or to
support reasonable inferences about Ramos and Mejia’s status is fatal to Plaintiff’s default
judgment against them.
Because Plaintiff fails to demonstrate compliance with the SCRA, the Court
respectfully recommends that the motion for default judgment against Ramos and Mejia should
be denied. The remaining analysis applies to La Morenita only.
V. DEFAULT JUDGMENT FACTORS
“Courts use the same three-factor test used to set aside a default judgment to determine
whether to grant a default judgment.” Bocon v. 419 Manhattan Ave. LLC, No. 23-CV-3502
(PKC)(MMH), 2025 WL 832730, at *5 (E.D.N.Y. Mar. 18, 2025) (citing Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)), adopted by Order Adopting R. & R., Bocon v. 419
Manhattan Ave. LLC, No. 23-CV-3502 (PKC)(MMH) (E.D.N.Y. Mar 31, 2025), as amended
by Am. Order Adopting R. & R., Bocon v. 419 Manhattan Ave. LLC, No. 23-CV-3502
(PKC)(MMH) (E.D.N.Y. Apr. 9, 2025). Specifically, courts examine: “(1) whether the
defendant’s default was willful; (2) whether the defendant has a meritorious defense to the
plaintiff’s claims; and (3) the level of prejudice the non-defaulting party would suffer as a
result of the denial of the motion for default judgment.” Courchevel 1850 LLC v. Rodriguez,
No. 17-CV-6311 (MKB), 2019 WL 2233828, at *3 (E.D.N.Y. May 22, 2019) (citing Pecarsky
v. Galaxiworld.com Ltd., 249 F.3d 167, 170–71 (2d Cir. 2001)).
Here, all three factors weigh in Plaintiff’s favor. First, “Defendant[’s] non-appearance
and failure to respond to the Complaint or otherwise appear indicate willful conduct.” See
Tambriz v. Taste & Sabor, LLC, 577 F. Supp. 3d 314, 321 (E.D.N.Y. 2021). Second, without
an answer to the Complaint, “the Court cannot determine whether a defendant has a
meritorious defense and granting a default judgment is favored under those circumstances.”
Avedana v. Casa Ofelia’s Bakery LLC, No. 20-CV-2214 (DG)(AKT), 2021 WL 4255361, at
*4 (E.D.N.Y. Aug. 19, 2021), adopted by 2021 WL 4248857 (E.D.N.Y Sept. 17, 2021). Third,
Plaintiff will be prejudiced if the motion for default judgment is denied because “there are no
additional steps available to secure relief in this Court.” Reyes v. Tacos El Fallo Giro Corp.,
No. 20-CV-3474 (EK)(SJB), 2022 WL 940504, at *2 (E.D.N.Y. Jan. 25, 2022) (citation
omitted), adopted by 2022 WL 939769 (E.D.N.Y. Mar. 29, 2022). Based on the foregoing,
entry of default is permissible.
VI. LIABILITY
A. Statute of Limitations
“The limitations period for FLSA claims is two years, ‘except that a cause of action
arising out of a willful violation may be commenced within three years.’” Whiteside v. Hover-
Davis, Inc., 995 F.3d 315, 319 (2d Cir. 2021) (quoting 29 U.S.C. § 255(a)). “When a defendant
defaults, the violation is considered willful and the three-year statute of limitations applies.”
Esquivel, 2023 WL 6338666, at *5. In contrast, the NYLL establishes a six-year limitations
period for wage claims. N.Y. Lab. Law §§ 198(3), 663(3). The statute of limitations begins
to run when an employee begins to work for the employer. Esquivel, 2023 WL 6338666, at
*5. Plaintiff began working for La Morenita in March 2022 and commenced this action on
August 22, 2023. (See Compl., ECF No. 1 ¶¶ 15, 33; see generally ECF No. 1 Dkt. Entry.)
Considering La Morenita’s default, Plaintiff may recover under the FLSA and NYLL for any
claims arising during her entire period of employment.
B. FLSA Coverage
“To establish a minimum wage or overtime claim under the FLSA, the Plaintiff[] must
prove the following: (1) the defendant is an employer subject to the FLSA; (2) the Plaintiff[]
is an ‘employee’ within the meaning of the FLSA; and (3) the employment relationship is not
exempted from the FLSA.” Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047 (ENV)(MMH),
2024 WL 4309775, at *6 (E.D.N.Y. Sept. 26, 2024) (cleaned up), adopted by Order Adopting
R. & R., Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047 (ENV)(MMH) (E.D.N.Y. Jan. 15,
2025); 29 U.S.C. §§ 206(a), 207(a).
1. Employer Subject to the FLSA
The Complaint alleges that La Morenita was Plaintiff’s employer within the meaning
of the FLSA. (Compl., ECF No. 1 ¶¶ 25, 71.) An employer includes, “any person [e.g., an
individual or a corporation] acting directly or indirectly in the interest of an employer in
relation to an employee. 29 U.S.C. § 203(a), (d). “For employees to be covered by the FLSA,
they must show either that their employer was an enterprise engaged in interstate commerce
or that their work as employees regularly involved them in interstate commerce.” Marine v.
Vieja Quisqueya Rest. Corp., No. 20-CV-4671 (PKC)(RML), 2022 WL 17820084, at *3
(E.D.N.Y. Sept. 8, 2022), adopted by Order Adopting R. & R., Marine v. Vieja Quisqueya
Rest. Corp., No. 20-CV-4671 (PKC) (E.D.N.Y. Sept. 23, 2022); 29 U.S.C. §§ 206, 207. These
two methods of establishing FLSA coverage are known as “enterprise coverage” and
“individual coverage,” respectively. Sanchez v. Ms. Wine Shop, Inc., 643 F. Supp. 3d 355, 367
(E.D.N.Y. 2022).
The enterprise coverage test considers whether the employer has employees “engaged
in commerce or in the production of goods for commerce,” i.e., it “has employees handling,
selling, or otherwise working on goods or materials that have been moved in or produced for
commerce by any person” and has an “annual gross volume of sales made or business
done . . . not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)–(ii); Perry v. High Level Dev.
Contracting & Sec. LLC, No. 20-CV-2180 (AMD)(PK), 2022 WL 1018791, at *6 (E.D.N.Y.
Mar. 16, 2022), adopted by 2022 WL 1017753 (E.D.N.Y. Apr. 5, 2022). Here, the Complaint
states, in conclusory fashion that in 2022 and 2023, La Morenita owned and controlled a “mini
market,” that it “had a gross annual volume of sales of not less than $500,000.00 (exclusive of
excise taxes at the retail level that are separately stated),” and that the “enterprise [was] directly
engaged in interstate commerce” because “numerous items that were used in the mini market
on a daily basis are goods produced outside of the State of New York.” (Compl., ECF No. 1
¶¶ 29–30.) On a motion for default judgment, such “conclusory allegations” may suffice to
establish enterprise coverage “where it may be inferred from the type of business enterprise
that it was engaged in interstate commerce.” Reyes-Fana v. Moca Grocery NY Corp., No. 21-
CV-4493 (AMD)(RER), 2022 WL 5428688, at *5 (E.D.N.Y. Aug. 16, 2022), adopted by 2022
WL 4094241 (E.D.N.Y. Sept. 7, 2022).
Further, Plaintiff’s allegations meet the requirements of the individual coverage test,
which considers whether “the employee is engaged in commerce or produced goods in
commerce.” Sarr v. VEP Assocs. LLC, No. 22-CV-4386 (ENV)(MMH), 2024 WL 1251600,
at *3 (E.D.N.Y. Mar. 25, 2024) (cleaned up), adopted by Order Adopting R. & R., Sarr v. VEP
Assocs. LLC, No. 22-CV-4386 (ENV)(MMH) (E.D.N.Y. Apr. 15, 2024). “Employees are
‘engaged in commerce’ within the meaning of the [FLSA] when they are performing work
involving or related to the movement of persons or things (whether tangibles or intangibles,
and including information and intelligence) among several States or between any State and
any place outside thereof.” 29 C.F.R. § 779.103. Further, “[a]n employee shall be deemed to
have been engaged in the production of goods if such employee was employed
in . . . handling . . . or in any other manner working on such goods.” 29 U.S.C. § 203(j).
Plaintiff alleges that she “regularly handled good in interstate commerce, such as food and
other supplies produced outside the State of New York.” (Compl., ECF No. 1 ¶ 35.)
Accordingly, Plaintiff’s allegations are sufficient to establish FLSA enterprise and
individual coverage.
2. Employee Covered by the FLSA
The FLSA defines an “employee” as “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). “Two types of employees are covered: (1) ‘employees who in any
workweek [are] engaged in commerce or in the production of goods for commerce;’ and (2)
employees who are ‘employed in an enterprise engaged in commerce or in the production of
goods for commerce.’” Palaghita v. Alkor Cap. Corp., No. 19-CV-1504 (ARR)(RER), 2021
WL 4464121, at *9 (E.D.N.Y. Aug. 20, 2021), adopted by 2021 WL 4463483 (E.D.N.Y. Sept.
29, 2021) (quoting 29 U.S.C. § 207(a)(1)). The FLSA does not extend to employees who are
exempt from its minimum wage and overtime requirements. See 29 U.S.C. § 213(a)(1) (listing
multiple exemptions). Whether a plaintiff-employee’s activities fall under such exemptions is
a question of law. Isett v. Aetna Life Ins. Co., 947 F.3d 122, 129–30, n.28 (2d Cir. 2020) (citing
Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012)).
Plaintiff alleges sufficient facts to establish that she was engaged in non-exempt
employment under the FLSA. Specifically, Plaintiff alleges that she worked at the mini market
as a cashier and food clerk who regularly handled food and other supplies produced outside of
New York. (Compl., ECF No. 1 ¶¶ 34–35.) Employment in positions with similar duties is
not exempt from the FLSA. See, e.g., Vargas v. Jet Peru-Courier Corp., No. 15-CV-6859
(RRM)(PK), 2018 WL 1545699, at *6 (E.D.N.Y. Mar. 14, 2018) (finding that Plaintiff, a
former “cashier/customer service attendant,” was a non-exempt employee under the FLSA),
adopted by 2018 WL 1545679 (E.D.N.Y. Mar. 28, 2018). Therefore, the Court does not find
any basis for exempting Plaintiff’s employment relationship from the FLSA’s provisions.2
Accordingly, Plaintiff has shown that she is an employee within the meaning of the FLSA and
qualifies for the protections of the FLSA.
C. NYLL Coverage
To plead a NYLL claim, a plaintiff “must establish that [the] employment relationship
with Defendants falls within the NYLL, which applies to ‘any person employed for hire by an
employer in any employment.’” Perry, 2022 WL 1018791, at *7 (quoting N.Y. Lab. Law
§ 190). “Under the New York Labor Law, the definition of employee and employer are nearly
identical as those under the FLSA, though the NYLL does not require that a defendant achieve
2 Because La Morenita defaulted, it does not assert or offer any facts to support a finding that
Plaintiff is an exempt employee. See Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 91 n.7 (2d
Cir. 2013) (“A claim of exemption under the FLSA is an affirmative defense, and the employer
bears the burden of proof in making any such claim.”) (citing Corning Glass Works v. Brennan,
417 U.S. 188, 196 (1974) and Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991)).
a certain minimum in annual sales or business in order to be subject to the law.” Solis, 2024
WL 4271234, at *8; see N.Y. Lab. Law §§ 651(5)–(6). Additionally, “[u]nder the NYLL, an
employee-employer relationship is established through [] ‘the degree of control exercised by
the purported employer over the employee.’” Brito v. Marina’s Bakery Corp., No. 19-CV-828
(KAM)(MMH), 2022 WL 875099, at *8 (E.D.N.Y. Mar. 24, 2022) (quoting Hart v. Rick’s
Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 923 (S.D.N.Y. 2013)). The Court has already
determined that La Morenita is Plaintiff’s employer within the meaning of the FLSA. (See
§ VI.B.1., supra.) “Because the NYLL’s definition of ‘employer’ is coextensive with the
FLSA’s definition,” La Morenita is Plaintiff’s employer within the meaning of the NYLL.
Perry, 2022 WL 1018791, at *7. Accordingly, Plaintiff qualifies for NYLL protections.
D. Statutory Violations
In the Complaint, Plaintiff alleges that La Morenita violated the FLSA and NYLL
minimum wage and overtime provisions (Counts 1 through 4) and the NYLL provisions related
to spread of hours (Count 5). (See Compl., ECF No. 1 ¶¶ 70–93.) Plaintiff also alleges
violations of New York Wage Theft Protection Act (“WTPA”), N.Y. Lab. Law §§ 195(1)(a)
& 195(3), for failure to provide wage notices and wage statements (Counts 6 and 7). (Id.
¶¶ 94–99.) However, because Plaintiff does not request default judgment or pursue damages
for the alleged WTPA violations (see generally Pl.’s Mem., ECF No. 27; Faillace Aff. Ex. 7,
ECF No. 28-7 (damages chart)), Plaintiff waives those claims. Esquivel, 2023 WL 6338666,
at *7.3
3 Even if Plaintiff requested default judgment on the WTPA claims, the Court would respectfully
recommend denying such relief. To plausibly allege a WTPA violation, “a plaintiff must show
some causal connection between the lack of accurate notices and the downstream harm,” Guthrie
v. Rainbow Fencing Inc., 113 F.4th 300, 308 (2d Cir. 2024), and “[a]n ‘asserted informational
1. FLSA and NYLL
a. Minimum Wage (Counts 1 & 3)
Under the NYLL, “[a]n employer may not pay an employee less than the statutory
minimum wage for each hour the employee worked in any week.” Chacha v. Nueva Era
Flower Corp., No. 23-CV-3367 (AMD)(MMH), 2025 WL 2609246, at *9 (E.D.N.Y. Sept. 8,
2025) (quoting McLaughlin, 2024 WL 4184485, at *9), adopted by 2025 WL 2775917
(E.D.N.Y. Sept. 30, 2025). The employee alleging unpaid minimum wages under the FLSA
and the NYLL has the burden to show work she performed for which she was not properly
compensated. Reyes-Fana, 2022 WL 5428688, at *5 (citation omitted). “A plaintiff may
sufficiently establish FLSA or NYLL minimum wage violations through an affidavit or
declaration stating the number of hours worked.” Brito, 2022 WL 875099, at *10. “If the
defendant has defaulted, however, the court may presume that the plaintiff’s recollection and
estimates of the hours he or she worked are accurate.” Tzilin, 2024 WL 4309775, at *9
(quoting Zabrodin v. Silk 222, Inc., 702 F. Supp. 3d 102, 119 (E.D.N.Y. 2023)).
As an initial matter, the Court must determine the applicable minimum wage rates
under state, local, and federal law because Plaintiff is entitled to recover whichever minimum
wage rate was the highest at any given time during her employment. 29 U.S.C. § 218(a); Brito,
2022 WL 875099, at *9. Under New York law, the applicable minimum wage rate is
injury that causes no adverse effects cannot satisfy Article III.’” Id. at 307 (quoting TransUnion
LLC v. Ramirez, 594 U.S. 413, 442 (2021), which in turn quotes Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 1004 (11th Cir. 2020)). The Complaint alleges only that Defendants “failed to
post at the workplace . . . the required postings or notices to employees regarding the applicable
wage and hour requirements of the FLSA and NYLL.” (Compl., ECF No. 1 ¶ 61; see also id.
¶¶ 95, 98.) Accordingly, “[w]ithout plausible allegations that [she] suffered a concrete injury
because of [La Morenita’s] failure to provide the required notices and statements, [Plaintiff] lacks
standing to sue for that statutory violation.” Guthrie, 113 F.4th at 311.
determined by the size and location of the employer and the dates of Plaintiff’s employment.
N.Y. Lab. Law § 652(1)(a)(ii); 12 N.Y.C.R.R. § 142-2.1(a)(1). Plaintiff alleges that she
worked from March 2022 to May 24, 2023, at La Guadalupe, La Morenita’s mini market in
Brooklyn, New York. (Compl., ECF No. 1 ¶¶ 4, 33.) While Plaintiff does not allege the
number of persons La Morenita employed, during her employment, the NYLL minimum wage
for all employers in New York City was $15.00 per hour. See N.Y. Lab. Law § 652(1)(a); 12
N.Y.C.R.R. § 142- 2.1(a)(1). Because the state and local minimum wage rate was higher than
the federal minimum wage rate, Plaintiff thus is entitled to the local minimum wage rate of
$15.00. Compare N.Y. Lab. Law § 652(1)(a) (New York minimum wage of $15.00 per hour
for all employers in New York City on and after December 31, 2021) with 29 U.S.C.
§ 206(a)(1) (federal minimum wage rate of $7.25 per hour after July 24, 2009).
Next, “for purposes of determining whether Plaintiff was paid the prevailing minimum
wage, the Court must determine [her] regular hourly rate of pay.” Ms. Wine Shop, 643 F. Supp.
3d at 371 (cleaned up). Under the NYLL, the regular hourly wage rate for non-hospitality
industry employees “shall be determined by dividing the total hours worked during the week
into the employee’s total earnings.” 12 N.Y.C.R.R. § 142-2.16. Plaintiff alleges that she
worked between 60 and 84 hours per week and was paid $650.00 to $810.00 per week.
(Compl., ECF No. 1 ¶¶ 38–46.) Therefore, for most of her employment, Plaintiff’s minimum
wage was between approximately $10.70 per hour to $12.27 per hour, less than the applicable
minimum wage.4 Further, Plaintiff was paid $0 per hour for the three days when she worked
4 Based on the allegations in the Complaint, Plaintiff’s hourly rates were: (i) $10.70 per hour from
March 2022 through April 2022 ($650.00 per week / 60.75 average weekly hours); (ii) $10.40 per
hour from May 2022 through June 2022 ($650.00 per week / 62.5 average weekly hours); (iii)
$12.00 per hour from July 2022 through August 2022 ($750.00 / 62.5 average weekly hours); (iv)
without pay. (Id. ¶ 47.) Plaintiff has therefore also established La Morenita’s liability for
failure to pay minimum wages under both the FLSA and the NYLL. Sanchez v. Hyper
Structure Corp., No. 19-CV-4524 (KAM)(PK), 2023 WL 2815717, at *8 (E.D.N.Y. Feb. 24,
2023), adopted as modified sub nom. Sanchez v. Trescly, No. 19-CV-4524 (KAM)(PK), 2023
WL 2473070 (E.D.N.Y. Mar. 13, 2023).
Plaintiff claims that, as a “food clerk,” the New York Hospitality Industry Wage Order
(the “Hospitality Wage Order”) governs her regular rate of pay. (See Pl.’s Mem., ECF No. 29
¶ 44.) Pursuant to the Hospitality Wage Order, “an employee’s regular rate of pay is calculated
by dividing an employee’s weekly pay by 40, regardless of the total number of hours worked.”
12 N.Y.C.R.R. § 146-3.5. The regulation applies to workers in a “restaurant,” or “any eating
or drinking place that prepares and offers food or beverage for human consumption either on
any of its premises or by such service as catering, banquet, box lunch, curb service or counter
service to the public, employees, or to members or guests of members[.]” Id. § 146-3.1(a)–
(b). However, “Plaintiff does not sufficiently allege facts that demonstrate that [La Guadalupe]
is a restaurant as defined by the Hospitality Wage Order.” Cazares v. Beety Mkt. Inc., No. 23-
CV-320 (RPK)(PK), 2024 WL 3342288, at *7 (E.D.N.Y. Feb. 16, 2024), adopted by Cazares
v. Beety Market Inc., No. 23-CV-320 (RPK)(PK) (E.D.N.Y. Mar. 21, 2024); see also Nasir v.
Khokon, No. 23 CV 2128 (DLI)(CLP), 2024 WL 4664722, at *5 n. 7 (E.D.N.Y. Aug. 26,
2024), adopted by Order Adopting R. & R., Nasir v. Khokon, No. 23 CV 2128 (DLI)(CLP)
$12.27 per hour from September 2022 through April 2023 ($810.00 / 66 average weekly hours);
(v) $9.64 per hour from April 17, 2023, to April 30, 2023 ($810.00 / 84 weekly hours); and (vi)
$10.66 per hour during her last month of employment, from May 1, 2023, to May 24, 2023
($810.00 / 76 weekly hours), except for the last three days when she was not paid. (Compl., ECF
No. 1 ¶¶ 38–47.)
(E.D.N.Y. Sept. 26, 2024). The Complaint alleges only that La Guadalupe is a “mini market”
(Compl., ECF No. 1 ¶¶ 2, 17) but does not allege facts about the nature of Plaintiff’s duties as
food clerk, including but not limited to whether she prepared food for customers’ consumption
or whether La Guadalupe even offered these services. Compare Collado v. JS Food & Grocery
Corp., No. 23-CV-6617 (LDH)(CLP), 2025 WL 959096, at *1, *9–10 (E.D.N.Y. Feb. 6, 2025)
(applying the Hospitality Wage Order formula to calculate wages because Plaintiff worked “as
a clerk in defendants’ deli department, preparing food, cleaning, and performing clerical
work”), adopted by Order Adopting R. & R., Collado v. JS Food & Grocery Corp., No. 23-
CV-6617 (LDH)(CLP) (E.D.N.Y. Mar. 31, 2025). Because Plaintiff has failed to properly
allege facts to show that her wages are calculated pursuant to the Hospitality Wage Order, the
Court divides her weekly salary by the total number of hours worked to calculate her regular
hourly rate. 12 N.Y.C.R.R. § 142-2.16.
Accordingly, the Court respectfully recommends that default judgment should be
entered against La Morenita for violations of the FLSA’s and NYLL’s minimum wage
provisions.
b. Overtime Wages (Counts 2 & 4)
The FLSA requires that “‘for a workweek longer than forty hours,’ an employee
working ‘in excess of’ forty hours shall be compensated for those excess hours ‘at a rate not
less than one and one-half times the regular rate at which [she or] he is employed.’” Dejesus,
726 F.3d at 88 (quoting 29 U.S.C. § 207(a)(1)). The NYLL includes the same requirement,
providing that eight hours constitutes a “legal day’s work.” N.Y. Lab. Law § 160. “[I]n order
to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work
in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy
v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). “Plaintiffs must
provide sufficient detail about the length and frequency of their unpaid work to support a
reasonable inference that they worked more than forty hours in a given week.” Nakahata v.
New York-Presbyterian Health Care Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013).
Plaintiff sufficiently establishes that La Morenita failed to pay her the requisite
overtime pay. Plaintiff alleges that during her employment with Defendants, she worked for
approximately 60 to 61.5 hours per week from March 2022 through April 2022; 60 to 65 hours
per week from May 2022 through August 2022; 64 to 68 hours per week from September 2022
through April 2023; 84 hours from April 17, 2023 through April 30, 2023; and 76 hours from
May 1, 2023 through May 24, 2023. (Compl., ECF No. 1 ¶¶ 33, 37–42.) Plaintiff alleges that
La Morenita “failed to pay . . . overtime compensation at a rate of one and one-half times the
regular rate of pay for each hour worked in excess of forty hours in a work week.” (Id. ¶ 78.)
The Court therefore respectfully recommends that La Morenita should be liable for
failure to pay overtime wages under both the FLSA and NYLL.
2. NYLL Spread of Hours Pay (Count 5)
The NYLL regulations provide that, for non-hospitality workers, “[a]n employee shall
receive one hour’s pay at the basic minimum hourly wage rate . . . for any day in which . . . the
spread of hours exceeds 10 hours[.]” 12 N.Y.C.R.R. § 142-2.4. The “spread of hours” is the
length of time between the beginning and end of an employee’s workday and includes working
time plus time off for meals plus intervals off duty. Id. § 142-2.18. A plaintiff sufficiently
establishes an employer’s liability for failure to provide spread of hours pay when he alleges
that he worked more than ten hours on a given day but did not receive spread of hours pay.
Ms. Wine Shop, 643 F. Supp. 3d at 378. “A limitation upon a plaintiff’s eligibility to recover
for spread-of-hours is that the plaintiff [may] not earn more than the minimum wage.” Fermin
v. Las Delicias Peruanas Rest., 93 F. Supp. 3d 19, 45 (E.D.N.Y. 2015) (cleaned up).
Plaintiff alleges she worked on average between 10 to 13 hours per day throughout her
employment. (See Compl., ECF No. 1 ¶¶ 33, 37–42.) Plaintiff also claims that Defendants
failed to pay her one additional hour’s pay at the basic minimum wage rate for each day
Plaintiff’s spread of hours exceeded ten hours. (Pl.’s Mem., ECF No. 29 ¶¶ 47–50.) The Court
already established that Plaintiff did not earn more than the minimum wage. (See § VI.D.1.a.,
supra.) “Notwithstanding that the Hospitality Wage Order does not apply, the more generally
applicable spread of hours regulation, [12 N.Y.C.R.R.] § 142-2.4, does and provides the same
relief.” Cazares, 2024 WL 3342288, at *7.
Thus, the Court respectfully recommends that La Morenita should also be liable under
the NYLL for unpaid spread of hours pay.
VII. DAMAGES
“While a party’s default is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.” Bricklayers, 779 F.3d
at 189 (quoting Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found.
Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012)) (cleaned up). “On a motion for default
judgment, a plaintiff has the burden to prove damages to the Court with a ‘reasonable
certainty.’” Ramah v. 138 Hillside Ave Inc., No. 20-CV-3317 (LDH)(LB), 2021 WL 7906551,
at *4 (E.D.N.Y. Sept. 16, 2021) (quoting Credit Lyonnais Secs. (USA), Inc. v. Alcantra, 183
F.3d 151, 155 (2d Cir. 1999)), adopted by Order Adopting R. & R., Ramah v. 138 Hillside Ave
Inc., No. 20-CV-3317 (LDH)(LB) (E.D.N.Y. Sept. 16, 2021).
“That being said, because under [the] FLSA ‘the burden is on an employer properly to
record hours,’ a ‘plaintiff need not compute FLSA damages with precision.’” Lopez v. Royal
Thai Plus, LLC, No. 16-CV-4028 (NGG)(SJB), 2018 WL 1770660, at *9 (E.D.N.Y. Feb. 6,
2018) (quoting Harold Levinson Assocs., Inc. v. Chao, 37 F. App’x 19, 20–21 (2d Cir. 2002)),
adopted by 2018 WL 1770555 (E.D.N.Y. Apr. 12, 2018). “Under the FLSA framework, if an
employer fails to keep records of work performed, a court may then award damages to the
employee, even though the result may be only approximate.” Brito, 2022 WL 875099, at *15;
see also Perry, 2022 WL 1018791, at *3 (holding that in the context of a motion for default
judgment on FLSA and NYLL claims, a plaintiff’s recollection and estimates of hours worked
are presumed correct) (cleaned up).
Where a plaintiff has sufficiently established claims under the FLSA and NYLL, that
plaintiff is “not entitled to recover under both FLSA and NYLL for [backpay] earned over the
same period.” Royal Thai Plus, 2018 WL 1770660, at *10. Rather, “[a] plaintiff may recover
under the statute which provides the greatest amount of damages.” Brito, 2022 WL 875099,
at *9. Because the NYLL provides greater or equal recovery than the FLSA at all relevant
times during Plaintiff’s employment with La Morenita, the Court will apply the NYLL for all
damages calculations. As described below, Plaintiff seeks unpaid minimum wage, overtime,
and spread of hours pay; liquidated damages; pre-judgment interest; and attorneys’ fees and
costs. (Pl.’s Mem., ECF No. 29 ¶¶ 7–16.)5
5 Plaintiff included both minimum and overtime wages calculations in her totals, which frustrated
the Court’s ability to quickly determine the amount of damages in each category.
A. Minimum Wage
Plaintiff requests unpaid minimum wages consisting of approximately $18,948.40.
(Pl.’s Mem., ECF No. 29 49 36—46; Faillace Decl., Ex. 7 (damages chart), ECF No. 28-7 at 1.)
As stated, Plaintiff is entitled to the minimum wage rates set forth in the NYLL and its
regulations. (See § VI.D.1.a., supra.) To calculate the minimum wage damages, the Court
calculates the difference between Plaintiffs regular rate of pay and the applicable minimum
wage, multiplied by the number of regular rate hours worked per week, and multiplied by the
number of weeks during the relevant period.
Plaintiff alleges that, throughout her employment, she regularly worked over 40 hours
per week throughout her employment. (Pl.’s Decl., ECF No. 28-6 4] 8-13.) Defendants paid
Plaintiff $10.70 per hour from March 2022 through April 2022; $10.40 per hour from May
2022 through June 2022; $12.00 an hour from July 2022 through August 2022; $12.27 per
hour from September 2022 to April 2023; $9.64 per hour from April 17, 2023 to April 30,
2023; and $10.66 per hour from May 1, 2023, to May 24, 2023. (See § VI.D.1.a., supra.)
Using the formula described above, Plaintiff is entitled to the unpaid minimum wages set forth
in Table 1:
Table 1: Unpaid Minimum Wages
Time Period Min. Wage | Reg. Pay Diff. Reg. Unpaid # of Total
Rate Min. & | Hour Wages Weeks Unpaid
Reg. per per Week Min.
Wage Week Wages
04/17/2023 — 04/30/2023
05/01/2023 — 05/21/2023
05/22/2023 — 5/24/2023
25
In contrast, Plaintiff applies the incorrect minimum wage rate for the damages
calculation. Using the formula to determine a hospitality worker’s hourly rate, Plaintiff divides
her total weekly pay by only forty hours per week. (See generally Faillace Decl., Ex. 7
(damages chart), ECF No. 28-7; Pl.’s Mem., ECF No. 29 ¶¶ 40–46.) For example, for the
period between March 2022 through April 2022, Plaintiff calculates approximately $1,998.00
in unpaid minimum wages as follows: (($650.00 / 40 hours) – ($650.00 / 60.75 hours) x (40
hours per week) x (9 total weeks)). (Pl.’s Mem., ECF No. 29 ¶ 37.) However, Plaintiff’s
unpaid minimum wage damages should have been calculated as follows: (($15.00 – ($650.00
/ 60.75 hours)) x (40 hours per week) x (9 total weeks)). The Court declines to adopt Plaintiff’s
formula.
Therefore, the Court respectfully recommends that Plaintiff should be awarded
$8,702.48 in damages for unpaid minimum wages.
B. Overtime Wages
Plaintiff requests unpaid overtime wages of approximately $27,460.38. (Pl.’s Mem.,
ECF No. 29 ¶¶ 36–46; Faillace Decl., Ex. 7 (damages chart), ECF No. 28-7 at 1.)
As noted, under the FLSA and NYLL, Plaintiff is entitled to overtime compensation of
at least one and one-half times her regular hourly rate for hours worked over 40 per week.
Dejesus, 726 F.3d at 88; 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2. “Where a plaintiff
is ‘compensated below the statutory minimum wage under either [the FLSA or NYLL], the
overtime fifty-percent premium is calculated based upon the applicable minimum wage not
the plaintiff’s actual pay rate.’” Brito, 2022 WL 875099, at *16 (quoting Guardado v. 13 Wall
St., Inc., No. 15-CV-2482 (DRH)(SIL), 2016 WL 7480358, at *10 (E.D.N.Y. Dec. 2, 2016),
adopted by 2016 WL 7480363 (E.D.N.Y. Dec. 29, 2016)).
At all times during Plaintiff's employment, Defendants were required to pay Plaintiff
at least $22.50 per hour (i.e., $15.00 New York City minimum wage x 1.5) for any hours
worked over 40 per week. “Because Plaintiff has already been paid a weekly amount for these
hours, the overtime wage deficiency is calculated by multiplying the difference between the
paid rate and the overtime wage rate . . . by the total number of overtime hours worked” per
week and multiplied by the number of weeks during the relevant period. Ms. Wine Shop Inc.,
643 F. Supp. 3d at 377. Plaintiff worked varying weekly hours throughout her employment.
(See Pl.’s Decl., ECF No. 28-6 §§ 9-13.) Applying this formula, Plaintiff is entitled to the
total unpaid overtime wages listed in Table 2:
Table 2: Unpaid Overtime Wages®
Time Period Min. Pay OT Hours Unpaid # of Total
OT Rate per Week OT Weeks Unpaid
‘Wage per OT
Week
04/17/2023 — 04/30/2023
05/01/2023 — 05/21/2023
Plaintiff incorrectly calculates the overtime rate based on an erroneous hourly wage
rate. (See § VILA., supra.) For example, for the period between July 2022 and August 2022,
Plaintiff determined her unpaid overtime wages were roughly $3,266.37 as follows: (($18.75
For example, between March 2022 to April 2022, Plaintiff worked 60.75 hours per week and was
paid at the regular hourly rate of $10.70 for all hours worked, but she should have been paid $22.50
for the 20.75 overtime hours. The Court calculates her unpaid overtime for this period as $2,098.36
(i.e., (($22.50 — $10.70) x 20.75 overtime hours x 8.57 weeks). Further, Plaintiff is not entitled to
overtime pay for the three days she worked without pay because she did not work over 40 hours
during that period.
27
x 1.5) – $12.00) x 22.5 hours x 9 weeks). (See generally Faillace Decl., Ex. 7 (damages chart),
ECF No. 28-7; Compl., ECF No. 1 ¶¶ 36–47.) Because Plaintiff’s formula is based on the
incorrect determination of her regular rate of pay, Plaintiff’s unpaid overtime damages are
miscalculated, and the formula is rejected.
Therefore, the Court respectfully recommends that Plaintiff should be awarded unpaid
overtime pay in the amount of $17,375.21.
C. Spread of Hours Pay
Plaintiff requests unpaid spread of hours compensation in the amount of $5,790.00.
(Pl.’s Mem., ECF No. 29 ¶ 50; Faillace Decl., Ex. 7 (damages chart), ECF No. 28-7 at 2.)
Under the NYLL, an employee is entitled to recover compensation for an extra hour of
work at the minimum wage rate for each day that the employee works more than ten hours.
Rosas v. M & M LA Solucion Flat Fixed Inc., No. 23-CV-1212 (DG)(MMH), 2024 WL
4131905, at *16 (E.D.N.Y. Sept. 10, 2024) (citing Perez v. E.P.E. Enter. Corp., No. 22-CV-
6353 (DG)(RER), 2023 WL 7000934, at *5 (E.D.N.Y. Aug. 29, 2023), adopted by Order
Adopting R. & R., Perez v. E.P.E. Enter. Corp., No. 22-CV-6353 (DG)(RER) (E.D.N.Y. Oct.
17, 2023)), adopted by Order Adopting R. & R., Rosas v. M & M LA Solucion Flat Fixed Inc.,
No. 23-CV-1212 (DG)(MMH) (E.D.N.Y. Sept. 30, 2024); 12 N.Y.C.R.R. § 142-2.4(a). Like
the unpaid overtime wages, spread of hours are calculated based on the applicable minimum
wage rates for the relevant period. Esquivel, 2023 WL 6338666, at *13.
Plaintiff avers that she worked over 10 hours per day throughout her employment and
that La Morenita failed to pay her spread of hours (“SOH”) for those days. (See Pl.’s Decl.,
ECF No. 28-6 ¶¶ 9–13.) To calculate the SOH premium owed, the Court multiples the number
of weeks per period by the SOH days per week and the minimum wage (i.e., Weeks x SOH
Days Per Week x Minimum Wage). Therefore, Plaintiff is entitled to unpaid spread of hours
pay as set forth in Table 3:
Table 3: Unpaid Spread of Hours Pay
Time Period ‘Weekly | Weekly | Hours | SOH Days Min # of Total
Hours Work | per Day | per Week Wage Weeks Unpaid
Days OT
| 03/2022 04/2022 | 60.75 | 6 | 1013 | 6 {| $15.00 □□ 8.57 | $771.30 □
| 05/2022—06/2022_ | 62.5 | 6 | 1042 | 6 | $15.00 | 8.57 | $771.30]
| 07/2022—08/2022 | 62.5 | 6 | 1042 | 6 | $15.00 | 8.71 | $783.90 |
| 09/2022—04/2023_ | 66 = | 6 Tt □□ $515.00_| 32.43 | $2,918.70 |
04/17/2023 — 04/30/2023
05/01/2023 — 05/21/2023 |__76 | 6 | 12.67 | 6 | $15.00 | 2.86 | $257.40 |
05/22/2023 — 05/24/2023
Therefore, the Court respectfully recommends that Plaintiff should be awarded
$5,708.85 for unpaid spread of hours pay.
D. Liquidated Damages
Plaintiff requests liquidated damages of $52,198.78. (Pl.’s Mem., ECF No. 29 □ 60;
Faillace Decl., Ex. 7 (damages chart), ECF No. 28-7 at 2.)
Under both the FLSA and NYLL, an employee may recover liquidated damages equal
to the amount of their unpaid wages, unless the employer proves a good faith basis for
believing that its underpayment of wages complied with the law. Perry, 2022 WL 1018791,
at *11 (citing 29 U.S.C. §§ 216(b), 260 & N.Y. Lab. Law § 198(1-a)). However, the Second
Circuit “interpret[s] the NYLL and FLSA as not allowing duplicative liquidated damages for
the same course of conduct. Double recovery is generally disfavored.” Rana v. Islam, 887
F.3d 118, 123 (2d Cir. 2018). A court may award damages under whichever statute allows for
greater recovery. See id.
29
Here, where La Morenita has defaulted and therefore makes no showing that it acted in
good faith when underpaying Plaintiff, the greater liquidated damages available under the
NYLL are appropriate. As noted, Plaintiff’s calculated damages for unpaid minimum wage,
overtime compensation, and spread of hours pay are incorrect. (See §§ VII.A–C., supra.)
Accordingly, the Court respectfully recommends that Plaintiff should be awarded $31,786.547
in liquidated damages under the NYLL.
E. Pre-judgment Interest
Plaintiff seeks, as of April 30, 2024, prejudgment interest of $11,727.76. (Pl.’s Mem.,
ECF No. 29 ¶ 63; Faillace Decl., Ex. 7 (damages chart), ECF No. 28-7 at 2.)
The FLSA does not allow for any pre-judgment interest where plaintiffs also receive
liquidated damages. Thomas v. iStar Fin., Inc., 652 F.3d 141, 150 n.7 (2d Cir. 2011) (citing
Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988)). “However, the Second
Circuit has held that, as liquidated damages and pre-judgment interest are not functional
equivalents under the NYLL, prevailing plaintiffs may recover both for claims brought under
the NYLL.” Collado, 2025 WL 959096, at *11 (citing Reilly v. Natwest Mkts. Grp. Inc., 181
F.3d 253, 265 (2d Cir. 1999)). Accordingly, Plaintiff is eligible to recover pre-judgment
interest on compensatory damages for unpaid wages available under the NYLL at 9% per year,
but not on liquidated damages. Melo v. Milagro Grocery Corp., 750 F. Supp. 3d 38, 60 & n.7
(E.D.N.Y. 2024) (citing N.Y. C.P.L.R. § 5004).
7 This number consists of $8,702.48 (unpaid minimum wages) + $17,375.21 (unpaid overtime
wages) + $5,708.85 (unpaid of spread of hours pay).
When damages “were incurred at various times, interest shall be computed upon each
item from the date it was incurred or upon all of the damages from a single reasonable
intermediate date.” N.Y. C.P.L.R. § 5001(b). Courts applying N.Y. C.P.L.R. § 5001 have
“wide discretion in determining a reasonable date from which to award pre-judgment
interest[.]” Fermin, 93 F. Supp. 3d at 49 (quoting Conway v. Icahn & Co., 16 F.3d 504, 512
(2d Cir. 1994)). Courts generally calculate pre-judgment interest in NYLL “from the midpoint
date of the claims through the date judgment is entered” as well as from “the midpoint between
the first and last dates of the plaintiff’s NYLL claims.” See, e.g., Rosas, 2024 WL 4131905,
at *17.
As discussed, the Court recommends that liquidated damages should be awarded under
the NYLL, and thus, pre-judgment interest may be awarded. (See § VII.D., supra.) The Court
calculates prejudgment interest by determining the midpoint of the relevant period. The Court
selects October 11, 2022, the midpoint between Plaintiff’s start date of employment (March 1,
2022) and Plaintiff’s end date of employment (May 24, 2023), as a reasonable intermediate
date. Applying a nine percent per year rate, the Court respectfully recommends that Plaintiff
should be awarded $9,776.48 in pre-judgment interest to increase at a rate of $7.84 per day.8
F. Attorneys’ Fees
Plaintiff seeks $2,935.00 in attorneys’ fees based on 11.38 hours of work for attorneys
and support staff at the law firm Michael Faillace & Associates PC. (Pl.’s Mem., ECF No. 29
¶¶ 64–69; Faillace Decl., Ex. 8, ECF No. 28-8 at 1.)
8 The Court calculates the daily prejudgment interest rate by multiplying the total amount of unpaid
wages for Plaintiff ($31,786.54) by 9%, then dividing by 365, for a daily rate of $7.84. The daily
rate is then multiplied by 1,247, the number of days between October 11, 2022 and March 11,
2026, the date of this Report & Recommendation.
“Both the FLSA and NYLL are fee-shifting statutes which entitle a plaintiff to an award
of reasonable attorney’s fees and costs in wage-and-hour actions.” Callari v. Blackman
Plumbing Supply, Inc., No. 11-CV-3655 (ADS)(AKT), 2020 WL 2771008, at *6 (E.D.N.Y.
May 4, 2020) (citing 29 U.S.C. § 216(b) & N.Y. Lab. Law §§ 198(1-a), 663), adopted by 2020
WL 2769266 (E.D.N.Y. May 28, 2020). “[T]he lodestar—the product of a reasonable hourly
rate and the reasonable number of hours required by the case—creates a ‘presumptively
reasonable fee.’” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor
Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir.
2008)). “The method for determining reasonable attorneys’ fees in this Circuit is based on
several factors, such as the labor and skill required, the difficulty of the issues, the attorney’s
customary hourly rate, the experience, reputation, and ability of the attorney, and awards in
similar cases.” Treyger v. First Class Furniture & Rugs Inc., No. 21-CV-2902 (EK)(RLM),
2022 WL 543026, at *7 (E.D.N.Y. Jan. 10, 2022) (citing Arbor Hill, 522 F.3d at 186 n.3, 190),
adopted by 2022 WL 541795 (E.D.N.Y. Feb. 23, 2022). “District courts have broad discretion
to determine the amount of attorneys’ fees awarded, and the party requesting fees must submit
documentation to support its request.” Perry, 2022 WL 1018791, at *14. As discussed below,
a reduced award of attorneys’ fees is appropriate.
1. Hourly Rate
Courts must determine if the requested hourly rate is “what a reasonable, paying client
would be willing to pay.” Arbor Hill, 522 F.3d at 184. “In what has become known as the
‘forum rule,’ courts assess the reasonableness of hourly rates by comparing the rates requested
with the prevailing rates charged by attorneys practicing in the district where the court sits.”
Abularach v. High Wing Aviation LLC, No. 22-CV-1266 (MKB), 2025 WL 405986, at *6
(E.D.N.Y. Feb. 5, 2025) (citing Kyros L. P.C. v. World Wrestling Ent., Inc., 78 F.4th 532, 547
(2d Cir. 2023). “Courts in the Eastern District have recently awarded hourly rates ranging
from $300 to $450 for partners, $200 to $325 for senior associates, $100 to $200 for junior
associates, and $70 to $100 for legal support staff in FLSA cases.” Cao v. Wedding in Paris
LLC, 727 F. Supp. 3d 239, 299 (E.D.N.Y. 2024) (quoting Esquivel, 2023 WL 6338666, at
*17); but see Rubin v. HSBC Bank USA, NA, 763 F. Supp. 3d 233, 241–43 (E.D.N.Y. 2025)
(noting the considerable inflation that has occurred in recent years and the Court’s obligation
to award attorneys’ fees commensurate with current market conditions).
Plaintiff requests an hourly rate of $400.00 for attorney Catalina Sojo, $350.00 for
attorney Jarret Bodo, and $125.00 for several paralegals. (Pl.’s Mem., ECF No. 29 ¶ 69; see
generally Faillace Decl. Ex. 8, ECF No. 28-8 at 1.) Sojo earned her J.D.-equivalent degree
from Pontificia Universidad Javeriana in Bogota, Colombia in 2017 and an L.L.M. from
Cornell University School of Law in 2019 and worked in intellectual property litigation before
joining the Firm in 2020. (Pl.’s Mem., ECF No. 29 ¶ 69(i).) Bodo earned his J.D. from Hofstra
University School of Law in 2020 and was admitted to practice in New York in 2021. (Id.
¶ 69(ii).) Plaintiff does not identify or offer information about the paralegals labeled “PL” on
the attorney billing record. (See id. ¶ 69(iii).)
The Court finds that the requested hourly rates are unreasonable. First, the rates are
not commensurate with counsel’s training and experience or consistent with what a reasonable
client would pay for comparable legal services from partners (Sojo) and associates (Bodo).
See, e.g., Morales, 2023 WL 7684775, at *7 (awarding $350.00 hourly rate to Ms. Sojo in a
default judgment motion); Nasir, 2024 WL 4664722, at *18 (awarding $400.00 hourly rate to
solo practitioner practicing employment law for over a decade in this district and New York
state courts); Melo, 750 F. Supp. 3d at 61–62 (awarding senior associate $325.00 per hour
when no information was provided about counsel’s experience). Second, a rate reduction is
warranted in this case in which counsel submitted two default judgment motions that were
denied or seriously questioned because of repeated procedural errors, and the instant default
motion in which the Court recommends partial denial based on the same procedural errors and
incorrect damages calculations. (See Sept. 26, 2024 Order; Mar. 19, 2025 Order to Show
Cause; §§ IV & VII.A.–C., supra.). Third, the paralegals “performed routine paralegal
tasks . . . and there is no additional information about [their] skills or experience to justify more
than a garden-variety hourly rate.” Chacha, 2025 WL 2609246, at *17; compare Torres v. K
& T Provisions, Inc., No. 20-CV-5642 (WFK)(MMH), 2025 WL 942797, at *4 (E.D.N.Y.
Mar. 28, 2025) (awarding requested $100 hourly paralegal rate because “she was the Firm’s
primary point of contact with Plaintiff, and used her [Spanish] language skills not only to
translate for Plaintiff at mediation and depositions but also to speak with potential trial
witnesses”), adopted sub nom. by Torres v. K & T Provisions, Inc., No. 20-CV-5642
(WFK)(MMH), 2025 WL 1135408 (E.D.N.Y. Apr. 17, 2025). Thus, the Court respectfully
recommends the following reduced hourly rates: $350.00 for Sojo, $295.00 for Bodo, and
$80.00 for the paralegals.
2. Reasonable Hours Expended
“For purposes of determining a reasonable fee, the number of hours billed must also be
reasonable[.].” Abreu, 2019 WL 2526087, at *5. “The number of hours spent on a lawsuit are
considered unreasonable if they are excessive, redundant, or unnecessary.” Feltzin v. Union
Mall LLC, 393 F. Supp. 3d 204, 211 (E.D.N.Y. 2019). “If the Court finds that some of the
time the attorney billed was not reasonably necessary, it should reduce the time for which
compensation is awarded accordingly.” Perry, 2022 WL 1018791, at *14 (cleaned up).
“Where time entries are vague, duplicative, or otherwise inadequate, a court may make an
across-the-board reduction or percentage cut, in the amount of hours.” Id. (cleaned up).
Consistent with the recommended hourly rate reductions, the Court also finds that the
number of hours expended in this case are unreasonable. Plaintiff reports 4.6 hours for Sojo,
1.5 hours for Bodo, and 5.28 hours for the paralegals, but over 60% of Sojo’s time and 30%
of the paralegals’ time is attributed to “Amending Default Motion” and related tasks, while
Bodo’s sole time entry is “Drafted Default Motion”—i.e., the first deficient motion for default
judgment. (See Faillace Decl. Ex. 8, ECF No. 28-8 at 1 (reflecting 2.8 hours for Sojo and 1.6
hours for paralegals on the second and instant default judgment motions).) Where, as here,
“the hours requested include time spent correcting the attorney’s own mistakes,” a reduction
is warranted. Payamps v. M & M Convenience Deli & Grocery Corp., No. 16-CV-4895
(LDH)(SJB), 2019 WL 8381264, at *16 (E.D.N.Y. Dec. 9, 2019). On these facts, a 25%
reduction in hours is appropriate, for a total of 8.53 hours.
Thus, the Court respectfully recommends that Plaintiff should be awarded $1,854.70 in
attorneys’ fees.9
G. Costs
Finally, Plaintiff seeks $602.00 in costs, including court filing and service of process
fees. (See generally Aff. Ex. 8, ECF No. 28-8.)
9 The attorneys’ fees are calculated as follows: $1,207.50 for Sojo ($350.00 x 3.45 hours); $330.40
for Bodo ($295.00 x 1.12 hours); and $316.80 for the paralegals ($80.00 x 3.96 hours).
Pursuant to both the FLSA and the NYLL, a prevailing plaintiff is entitled to an award
of reasonable attorneys’ fees and costs. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1); Avedana,
2021 WL 4255361, at *13. Plaintiff is entitled to some, but not all, the requested costs. First,
the Court permissibly takes judicial notice of the docket notations for paid filing fees. Phillips
v. TraxNYC Corp., No. 21-CV-528 (LDH)(MMH), 2023 WL 1987206, at *11 (E.D.N.Y. Feb.
14, 2023), adopted by 2023 WL 2532006 (E.D.N.Y. Mar. 14, 2023). Plaintiff is entitled to the
$402.00 filing fee for this case because the docket reflects that she paid the fee. (ECF No. 1
Dkt. Entry.) Second, the process server’s affidavit for La Morenita reflects a $40.00 fee paid
to the New York State Secretary of State for service on a corporation. (Aff., ECF No. 6.) The
Court may grant an award for this reasonable and customary litigation cost. However, because
Plaintiff fails to provide invoices for the requested costs for serving process on the Individual
Defendants, those costs should be denied.
Therefore, the Court respectfully recommends that Plaintiff should be awarded a total
of $442.00 in costs.
H. Post-judgment Interest
Though Plaintiff does not specifically request post-judgment interest, “[t]he award of
post-judgment interest is mandatory on awards in civil cases as of the date judgment is
entered.” Tru-Art Sign Co. v. Loc. 137 Sheet Metal Workers Int’l Assn, 852 F.3d 217, 223 (2d
Cir. 2017) (citing 28 U.S.C. § 1961 and quoting Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir.
1996)). Accordingly, Plaintiff should be awarded post-judgment interest calculated from “the
date of the entry of the judgment” at the statutory rate. 28 U.S.C. § 1961.
VIII. CONCLUSION
For the foregoing reasons, the Court respectfully recommends that Plaintiff’s third
motion for default judgment at ECF No. 27 should be granted in part and denied in part as
follows: (1) the Clerk of Court should enter the proposed default judgment (as amended)
against Defendant La Morenita Fruit Market Corp only; and (2) Plaintiff should be awarded
damages in the amount of $75,646.26, which includes: (a) $8,702.48 for unpaid minimum
wage pay; (b) $17,375.21 for unpaid overtime wages; (c) $5,708.85 for unpaid spread of hours
pay; (d) $31,786.54 in liquidated damages; (e) $9,776.48 in pre-judgment interest to increase
by $7.84 per day until the entry of judgment; (f) $1,854.70 for attorneys’ fees; (g) $442.00 for
costs; and (h) post-judgment interest calculated from the date of entry of judgment pursuant to
28 U.S.C. § 1961. All other requests for relief should be denied.
A copy of this Report and Recommendation is being served on Plaintiff via ECF. The
Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation on
Defendants at the following addresses forthwith: (1) La Morenita Fruit Market Corp, 4807 5th
Avenue, Brooklyn, NY 11223; (2) Gabino Arturo Ramos, 2930 86th Street, Apt. 1, Brooklyn,
NY 11223-4609; (3) Pamela Mejia Ramos, 2930 86th Street, Apt. 1, Brooklyn, NY 11223-
4609.
Within 14 days of service, any party may serve and file specific written objections to
this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any
requests for an extension of time to file objections shall be directed to Judge Merchant. If a
party fails to object timely to this Report and Recommendation, it waives any right to further
judicial review of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir.
2022).
SO ORDERED.
Brooklyn, New York
March 11, 2026
/s/Marcia M. Henry
MARCIA M. HENRY
United States Magistrate Judge