The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARIA AZUCENA YANNES, :
:
Plaintiff, :
: REPORT AND
-against- : RECOMMENDATION
:
EL PATRON MINIMARKET CORP. and : 24-CV-8253 (NCM)(MMH)
CARLOS A. VINANZACA, :
:
Defendants. :
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MARCIA M. HENRY, United States Magistrate Judge:
Plaintiff Maria Azucena Yannes sued Defendants El Patron Minimarket Corp. (“El
Patron”) and Carlos A. Vinanzaca, alleging violations of the Fair Labor Standards Act, 29
U.S.C. §§ 201 et seq. (“the FLSA”) and the New York Labor Law, N.Y. Lab. Law §§ 190 and
650 et seq. (the “NYLL”). (See generally Am. Compl., ECF No. 19.)1 Before the Court is
Plaintiff’s second motion for default judgment pursuant to Federal Rule of Civil Procedure
55(b). (See generally Mot., ECF No. 29.) The Honorable Natasha C. Merle referred the
motion for report and recommendation. For the reasons set forth below, the Court respectfully
recommends that Plaintiff’s second motion for default judgment should be granted in part as
follows: (1) a default judgment should be entered against Defendants and (2) Plaintiff should
be awarded damages as set forth herein.
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.
I. BACKGROUND
A. Factual Allegations
The following facts are taken from the Amended Complaint and are assumed to be true
for the purposes of this motion. Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry
& Constr., LLC, 779 F.3d 182, 187–90 (2d Cir. 2015).
At all relevant times, El Patron was a New York corporation with its principal place of
business at 3205 Junction Boulevard, Flushing, New York. (Am. Compl., ECF No. 19 ¶ 4.)2
Defendants owned and operated a store doing business as El Patron Mini Market at the same
location. (Id. ¶ 14.) Vinanzaca was the manager of El Patron and had the ability to hire and
fire employees, set wages and work schedules, and maintain the records. (Id. ¶ 8). Vinanzaca
also supervised, scheduled, and paid Plaintiff during her employment at El Patron. (Id. ¶ 9).
Plaintiff worked at El Patron Mini Market from July 23, 2023, to September 14, 2024;
her duties included stocking merchandise such as fruits and vegetables and moving boxes of
fruit, vegetables, fish, and meat to the store’s entrance. (See id. ¶ 15). From July 2023 to
November 2023, Plaintiff worked six days per week, Tuesday through Sunday, from 2:00 p.m.
until 10:00 p.m. (Id. ¶ 18.) During this time, Plaintiff typically worked 48 hours per week,
except when she worked an extended shift twice monthly on Mondays and thus worked 62
hours per week.3 (Id. ¶¶ 19–20.) From November 2023 to February 15, 2024, Plaintiff only
2 The Amended Complaint inexplicably restarts its numbered paragraphs after paragraph 43. (See
Am. Compl., ECF No. 19 at 10 (restarting at paragraph 41) and 12 (restarting again at paragraph
44).) To avoid confusion, the Court will include page and paragraph citations for all paragraphs
numbered higher than 43.
3 Plaintiff’s declaration in support of the requested damages states that she worked 56 weekly hours
during this period. (See Yannes Decl., ECF No. 30-5 ¶ 9; see also § VII.B., infra.)
worked on weekends, for a total of 20 hours per week. (Id. ¶ 21.) From February 15, 2024 to
February 20, 2024, Plaintiff worked 40 hours per week. (Id. ¶ 22.) From February 21, 2024
to August 1, 2024, Plaintiff worked approximately 60 hours per week as follows: Monday to
Friday from 2:00 p.m. until 10:00 p.m. and 10 hours each Saturday and Sunday. (Id. ¶¶ 23–
24.) From August 1, 2024 to September 14, 2024, the end of her employment, Plaintiff worked
approximately 40 hours per week on Monday through Friday from 2:00 p.m. to 10:00 p.m.
(Id. ¶ 24.) Throughout her employment at El Patron Mini Market, Vinanzaca paid Plaintiff
$650.00 in cash per week when she worked six days per week. (Id. ¶ 25.) For the weeks when
Plaintiff worked seven days per week, she was paid $700.00 in cash per week. (Id. ¶ 26.)
Plaintiff alleges that Defendants did not pay her the required minimum wage and
overtime wages for hours worked in excess of 40 hours per week and spread of hours pay for
days on which she worked more than 10 hours. (See id. ¶¶ 27–28, 30, 32, 38–43; id. at 10–12
¶¶ 41–50; id. at 12–13 ¶¶ 44–48.) Plaintiff further alleges that Defendants did not provide
wage notices and statements and that this failure caused her concrete harm. (See id. at 13
¶¶ 49–54.)
B. Procedural History
Plaintiff initiated this action on November 27, 2024 against El Patron and an individual
named “Carlos Vinanza.” (See generally Compl., ECF No. 1.) Plaintiff served the summons
and Complaint on El Patron and Vinanza on January 23, 2025. (ECF Nos. 7, 8.) At Plaintiff’s
request, after these Defendants failed to answer or otherwise respond to the Complaint, the
Clerk of the Court entered a notation of default against them on February 19, 2025. (ECF
No. 11.)
Plaintiff filed the first motion for default judgment on April 21, 2025. (ECF No. 12.)
On June 17, 2025, the Court ordered Plaintiff to show cause as to why the motion should not
be denied due to several deficiencies including, inter alia, improper service of the summons
and Complaint on El Patron and failure to comply with Local Civil Rule 55.2. (See June 17,
2025 Order to Show Cause.) On July 1, 2025, Plaintiff withdrew the motion. (ECF No. 17.)
On August 14, 2025, the Court granted Plaintiff leave to amend the Complaint to correct the
individual Defendant’s name from “Vinanza” to “Vinanzaca.” (See ECF No. 18; Aug. 14,
2025 Order.)
On September 4, 2025, Plaintiff filed the Amended Complaint. (See generally Am.
Compl., ECF No. 19.) Plaintiff served the summons and Amended Complaint on Vinanzaca
on September 9, 2025, and on El Patron on September 18, 2025. (ECF Nos. 22–23.) At
Plaintiff’s request, after Defendants failed to answer or otherwise respond to the Amended
Complaint, the Clerk of the Court entered a notation of default against them on October 20,
2025. (ECF No. 27.)
Plaintiff filed the second motion for default judgment on November 14, 2025, seeking
unpaid minimum and overtime wages under the FLSA and NYLL, statutory damages for wage
statement and wage notice violations under the NYLL, liquidated damages, pre-judgment
interest, and attorneys’ fees and costs. (See generally ECF No. 29.) Judge Merle referred the
motion for report and recommendation. (Nov. 17, 2025 Order Ref. Mot.) The Court held a
hearing on the motion on January 29, 2026, and reserved decision; Defendants did not appear
or otherwise contact the Court or Plaintiff. (See Jan. 29, 2026 Min. Entry; see generally Jan.
29, 2026 Transcript (“Tr.”), ECF No. 36.) At the Court’s request, Plaintiff supplemented the
motion on February 9, 2026. (Supp. Ltr., ECF No. 37.)
II. STANDARD FOR DEFAULT JUDGMENT
Rule 55 of the Federal Rules of Civil Procedure dictates a two-step process for a party
to obtain a default judgment. See Fed. R. Civ. P. 55(a)–(b); New York v. Green, 420 F.3d 99,
104 (2d Cir. 2005); Nam v. Ichiba Inc., No. 19-CV-1222 (KAM), 2021 WL 878743, at *2
(E.D.N.Y. Mar. 9, 2021). 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 Gonzales v. Victoria G’s Pizzeria LLC, No. 19-CV-6996 (DLI)(RER), 2021 WL
6065744, at *5 (E.D.N.Y. Dec. 22, 2021). 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.” Shah v. New York State Dep’t of Civ. Serv., 168 F.3d 610, 615 (2d Cir. 1999)
(cleaned up). 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)).
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. Sep. 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. Sep. 14, 2024), R. & R. adopted by 2024 WL 4355488
(E.D.N.Y. Sep. 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[s.]” 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 defendants 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. Licci ex rel. Licci v. Lebanese Canadian Bank,
SAL, 673 F.3d 50, 59–60 (2d Cir. 2012) (subsequent history omitted).
The Court has personal jurisdiction over Defendants. First, Plaintiff properly served
Vinanzaca by delivering the summons and Amended Complaint to a person of suitable age
and discretion at Vinanzaca’s actual place of business and by mailing a copy of same to
Vinanzaca’s actual place of business. (See ECF No. 22.) This service method follows federal
and state rules for service on individuals. Fed. R. Civ. P. 4(e)(1); N.Y. C.P.L.R. § 308(2).
Secondly, Plaintiff properly served El Patron by delivering a copy of the summons and
Amended Complaint to the New York Secretary of State. (See ECF No. 23.) This method of
service on corporations complies with federal and state procedural rules. Fed. R. Civ. P.
4(h)(1)(A)–(B); N.Y. Bus. Corp. Law § 306(b)(1).
Second, the Court has general jurisdiction over El Patron 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)), R. & R. adopted by 2018 WL
4288625 (E.D.N.Y. Sept. 7, 2018). Though Plaintiff does not allege Vinanzaca’s domicile,
the Court would have general jurisdiction over him if he was domiciled in New York. See id.
at *3. If he was not, “a federal court in New York may exercise personal jurisdiction over a
non-resident defendant based either on general jurisdiction, under C.P.L.R. § 301, or specific
jurisdiction, under 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). Vinanzaca conducts business
within the state and owns El Patron, (Am. Compl., ECF No. 19 ¶¶ 8, 14), which sufficiently
establishes specific jurisdiction. Weitsman, 2019 WL 7503022, at *3.
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).
Accordingly, the Court has personal jurisdiction over both Defendants.
C. Venue
“A civil action may be brought in a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred[.]” 28 U.S.C. § 1391(b)(2). Venue is
proper in this district because the failure to pay wages alleged in the Amended Complaint
occurred during Plaintiff’s employment in Flushing, New York. (Am. Compl., ECF No. 19
¶¶ 13–15, 25–37.)
IV. PROCEDURAL COMPLIANCE
Plaintiff demonstrates substantial compliance with the Local Civil Rules’ requirements
for default judgment motions. See D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109 n.2 (2d
Cir. 2006) (“A district court has broad discretion to determine whether to overlook a party’s
failure to comply with local rules.”) (cleaned up).
Plaintiff includes a notice of motion (ECF No. 29); a memorandum of law in support
of the motion (ECF No. 31); an affidavit with exhibits (ECF No. 30) showing, inter alia, that
the Clerk has entered default against Defendants (ECF No. 30-4); a proposed judgment (ECF
No. 31-1); a statement of damages showing the proposed damages and basis for each element
of damages (ECF No. 30-6); and a certificate of service stating that all documents in support
of the request for default judgment have been mailed to Vinanzaca at his last known residential
address and El Patron at its last known business addresses (ECF No 32). See Loc. Civ. Rs.
7.1(a)(1), 55(a)(1)(A), 55(a)(2)–(3), 55(c); see also Perry v. High Level Dev. Contracting &
Sec. LLC, No. 20-CV-2180 (AMD)(PK), 2022 WL 1018791, at *4 (E.D.N.Y. Mar. 16, 2022)
(listing similar submissions as compliant with the Local Civil Rules), R. & R. adopted by 2022
WL 1017753 (E.D.N.Y. Apr. 5, 2022). Accordingly, Plaintiff has complied with this district’s
Local Civil Rules.
Plaintiff also complies with the Servicemembers Civil Relief Act (“SCRA”), which
requires, “[i]n a default judgment action, a plaintiff . . . 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), R. & R. adopted by 2023 WL 2140418 (E.D.N.Y.
Feb. 21, 2023) (citing 50 U.S.C. § 3931(b)(1)); see also Loc. Civ. R. 55.2(a)(1)(B). “The 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.” Tenemaza v. Eagle Masonry Corp.,
No. 20-CV-452 (AMD)(VMS), 2021 WL 8317120, at *5 (E.D.N.Y. July 22, 2021) (citing
Pruco Life Ins. Co. of N.J. v. Est. of Locker, No. 12-CV-882 (ENV)(RML), 2012 WL 3062754,
at *1 (E.D.N.Y. July 23, 2012)); see also Morales v. Los Cafetales Rest. Corp., No. 21-CV-
1868 (AMD)(RER), 2023 WL 375647, at *4 (E.D.N.Y. Jan. 3, 2023), R. & R. adopted by 2023
WL 375642 (E.D.N.Y. Jan. 24, 2023). Plaintiff submitted a status report from the U.S.
Department of Defense Manpower Data Center confirming that Vinanzaca is not in the
military. (See ECF No. 30-8 (SCRA Search).) Accordingly, the Court finds that Plaintiff has
complied with the SCRA.
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)), R. & R. 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, Defendants’ “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 Amended 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), R. & R. 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.” Vazquez Romero v. La
Morenita Fruit Mkt. Corp, No. 23-CV-6300 (OEM)(MMH), 2026 WL 687228, at *6
(E.D.N.Y. Mar. 11, 2026), R. & R. adopted by Order Adopting R. & R., Vazquez Romero v.
La Morenita Fruit Mkt. Corp, No. 23-CV-6300 (OEM)(MMH) (E.D.N.Y. Mar. 31, 2026).
Based on the foregoing, entry of default judgment against Defendants 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, 320 (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 v. Lima Rest. Corp., No. 20-CV-2914 (ENV)(MMH), 2023 WL 6338666, at *5
(E.D.N.Y. Sep. 29, 2023), R. & R. adopted by Order Adopting R. & R., Esquivel v. Lima Rest.
Corp., No. 20-CV-2914 (ENV)(MMH) (E.D.N.Y. Nov. 30, 2023). 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 Defendants on July 23, 2023
and commenced this action on November 27, 2024. (See Am. Compl., ECF No. 19 ¶ 15.)
Therefore, considering Defendants’ default and the relevant statute of limitations period,
Plaintiff may recover under the FLSA and NYLL for any claims that accrued since the start of
her employment.
B. FLSA Coverage
To establish a minimum wage or overtime claim under the FLSA, “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.” Solis v. Tropical Rest. Bar Inc., No. 23-CV-1707 (ENV)(MMH),
2024 WL 4271234, at *7 (E.D.N.Y. Sep. 19, 2024), R. & R. adopted by Order Adopting R. &
R., Solis v. Tropical Rest. Bar Inc., No. 23-CV-1707 (ENV)(MMH) (E.D.N.Y. Dec. 5, 2024);
29 U.S.C. §§ 206(a), 207(a).
1. Employers Subject to the FLSA
The Amended Complaint alleges that Defendants were Plaintiff’s employers within the
meaning of the FLSA. (Am. Compl., ECF No. 19 ¶¶ 15–17.) An employer includes, “any
person [e.g., an individual or corporation] acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(a), (d). “[F]or 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. Sep. 8, 2022), R. & R. adopted by Order Adopting R. & R., Marine v. Vieja
Quisqueya Rest. Corp., No. 20-CV-4671 (PKC)(RML) (E.D.N.Y. Sep. 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, 643 F. Supp.
3d 355, 367 (E.D.N.Y. 2022).
a. El Patron
An employer is an “enterprise engaged in commerce or in the production of goods for
commerce” subject to the FLSA when the employer: (1) “has employees engaged in commerce
or in the production of goods for commerce” or “has employees handling, selling, or otherwise
working on goods or materials that have been moved in or produced for commerce by any
person” and (2) 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); Martinez v. Golden Flow Dairy, No. 21-CV-
2421 (ENV)(MMH), 2025 WL 3769328, at *5 (E.D.N.Y. Dec. 31, 2025), R. & R. adopted by
Order Adopting R. & R., Martinez v. Golden Flow Dairy, No. 21-CV-2421 (ENV)(MMH)
(E.D.N.Y. Feb. 11, 2026).
Plaintiff properly pleads enterprise coverage as to El Patron. The Amended Complaint
alleges that El Patron engaged in interstate commerce as an employer and/or through the
production of goods for commerce within the meaning of the FLSA, and that El Patron “had
gross revenues in excess of $500,000.00” and “used goods and materials produced in interstate
commerce and has employed at least two individuals who handled such goods and materials.”
(Am. Compl., ECF No. 19 ¶¶ 5–7.) Plaintiff also asserts that there is an interstate nexus
because Defendants’ commercial activities center around the stocking of goods and food items
that were transported between states. (See Tr., ECF No. 36 at 4:22–5:3.) Plaintiff further
alleges that the goods she handled for the business daily included many items that were
transported between states and that she regularly stocked and placed merchandise—such as
“packaged goods,” “food items,” and “canned items”—that originated outside of New York
state. (Id. at 4:22–5:1; Mem., ECF No. 31 at 6; Am. Compl., ECF No. 19 ¶ 15.) Plaintiff
therefore plausibly alleges specific facts to establish that El Patron’s employees handle goods
or materials that move “among the several States” and that their business generates sales over
the statutory threshold. 29 U.S.C. § 203(b); see id. § 203(s)(1)(A); see also, e.g., Hernandez
v. J & M Corona Deli Corp., No. 23-CV-9120 (RER)(PK), 2025 WL 2597767, at *5 (E.D.N.Y.
Aug. 13, 2025) (finding enterprise coverage test met where plaintiff alleged that the corporate
defendant made at least $500,000 in annual revenue and that it purchased all materials, goods,
and products from suppliers outside the State of New York), R. & R. adopted by 2025 WL
2591538 (E.D.N.Y. Sep. 8, 2025).
Accordingly, Plaintiff adequately alleges that El Patron operates an enterprise engaged
in commerce and it is therefore subject to the FLSA.4
b. Vinanzaca
Plaintiff also sufficiently establishes that Vinanzaca was her employer within the
meaning of the FLSA. “The FLSA contemplates that more than one employer may be
responsible for violations of the statute.” Echevarria v. ABC Corp., No. 21-CV-4959
(JS)(ARL), 2023 WL 5880417, at *4 (E.D.N.Y. Sep. 11, 2023) (citation omitted), adhered to
on reconsideration, No. 21-CV-4959 (JS)(ARL), 2024 WL 1639934 (E.D.N.Y. Apr. 16,
2024). For individual defendants, “[t]he underlying inquiry in determining ‘employer’ status
is whether the individual possessed operational control over employees: ‘control over a
company’s actual operations in a manner that relates to a plaintiff’s employment.’” Tapia v.
BLCH 3rd Ave. LLC, 906 F.3d 58, 61 (2d Cir. 2018) (quoting Irizarry v. Catsimatidis, 722
F.3d 99, 109 (2d Cir. 2013)). Courts also consider the “economic reality” of the employment
relationship by analyzing “whether the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, and (4) maintained employment
records.” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008) (quoting
Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)); see also Tapia, 906 F.3d at 61–
62 (applying the Carter factors to determine individual liability under the FLSA). “The test
looks at the totality of the circumstances, and no individual factor is dispositive.” See Brito v.
4 Because the Court finds that Plaintiff satisfies the enterprise coverage standard, it does not
address whether Plaintiff also satisfies the individual coverage test.
Marina’s Bakery Corp., No. 19-CV-828 (KAM)(MMH), 2022 WL 875099, at *8 (E.D.N.Y.
Mar. 24, 2022) (citing Irizarry, 722 F.3d at 105).
Plaintiff has shown that Vinanzaca qualifies as an employer under the FLSA because
his “role within the company, and the decisions it entails, directly affect the nature or
conditions of the employees’ employment.” Irizarry, 722 F.3d at 110. Plaintiff alleges that
Vinanzaca was an owner or partial owner of El Patron and possessed the managerial authority
over employees—including Plaintiff—to set wages and hours, maintain records, and make
hiring or termination decisions. (Am. Compl., ECF No. 19 ¶ 8.) Plaintiff further alleges that
Vinanzaca had an active role in the daily operations and supervision of employees, including
Plaintiff, encompassing payment and wage disbursement responsibilities. (Id. ¶ 9.) These
allegations are sufficient to establish that Vinanzaca was an individual employer within the
meaning of FLSA’s provisions and therefore required to comply with the FLSA’s overtime
and minimum wage provisions. See Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047
(ENV)(MMH), 2024 WL 4309775, at *7 (E.D.N.Y. Sep. 26, 2024) (holding that individual
owners and operators of a corporation who set wages and the employer’s operational schedule,
and hired and fired employees, were “employers” under the FLSA), R. & R. 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).
c. Joint and Several Liability
“A plaintiff’s allegations that an individual and corporate defendant are part of a
common ownership or management of a business, coupled with a defendant’s default, are
sufficient to allege joint employment.” Escobar v. Mahopac Food Corp., No. 19-CV-00510
(FB)(JRC), 2025 WL 934906, at *7 (E.D.N.Y. Mar. 5, 2025) (citing Choi v. AHC Med. Servs.,
PLLC, No. 22-CV-1450 (MKB)(JRC), 2023 WL 5612394, at *5 (E.D.N.Y. Aug. 1, 2023), R.
& R. adopted by 2023 WL 5613718 (E.D.N.Y. Aug. 30, 2023) and Khan v. Nyrene, Inc.,
No. 18-CV-557 (ARR)(ST), 2020 WL 1931282, at *4 (E.D.N.Y. Mar. 11, 2020), R. & R.
adopted by 2020 WL 1929066 (E.D.N.Y. Apr. 21, 2020)), R. & R. adopted by 2025 WL 931283
(E.D.N.Y. Mar. 27, 2025). “As the Court has found that [El Patron and Vinanzaca] were
jointly [Plaintiff’s] employers, each Defendant is jointly and severally liable under the FLSA
and the NYLL for any damages award made in [Plaintiff’s] favor.” Fermin v. Las Delicias
Peruanas Rest., 93 F. Supp. 3d 19, 37 (E.D.N.Y. 2015) (collecting cases); see also Brito, 2022
WL 875099, at *8.
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), R. & R. adopted by 2021 WL 4463483
(E.D.N.Y. Sep. 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) (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 facts that establish, as a matter of law, that she was engaged in non-
exempt employment under the FLSA.5 Specifically, the Amended Complaint alleges that
Plaintiff was employed by Defendants stocking merchandise at El Patron. (Am. Compl., ECF
No. 19 ¶ 15.) Employment in positions with similar duties is not exempt from the FLSA. See,
e.g., Vazquez Romero, 2026 WL 687228, at *7 (finding that plaintiff, a former employee at a
market who regularly handled food, was a non-exempt employee under the FLSA). Therefore,
the Court does not find any basis for exempting Plaintiff’s employment relationship from the
FLSA’s provisions. Accordingly, Plaintiff 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
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, 2022 WL 875099 at *8 (quoting Hart v.
Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 923 (S.D.N.Y. 2013)). The Court has already
5 Defendants have not appeared in this case to 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)).
determined that Defendants are Plaintiff’s employers 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 . . . Defendants are [Plaintiff’s] employers within the meaning of the
NYLL” as well. Perry, 2022 WL 1018791, at *7. Therefore, Plaintiff qualifies for the
protections of the NYLL.
D. Statutory Violations
In the Amended Complaint, Plaintiff alleges that Defendants violated the FLSA and
NYLL overtime provisions (Counts 1 and 2), the NYLL minimum wage provisions (Count 3),
and the NYLL provisions related to spread of hours (Count 4) and wage statements and notices
(Count 5). (See generally Am. Compl., ECF No. 19.) However, the motion does not address
or seek damages related to spread of hours pay (Count 4). (See Mem., ECF No. 31 at 13
(describing total damages); ECF No. 30-6 (Damages Chart omitting spread of hours damages
calculations); ECF No. 37 (supplemental letter describing damages categories but not
including unpaid spread of hours pay).) Accordingly, this claim is waived. Esquivel, 2023
WL 6338666, at *7.
1. Minimum Wage (Count 3)
Under the FLSA and NYLL, “[a]n employer may not pay an employee less than the
statutory minimum wage for each hour the employee worked in any week.” McLaughlin, 2024
WL 4184485, at *9 (cleaned up). “An employee bringing an action for unpaid minimum wages
under the FLSA and the NYLL has the burden of proving that he performed work for which
he was not properly compensated.” Bocon, 2025 WL 832730, at *8 (quoting Fermin, 93 F.
Supp. 3d at 41). “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)).
Under New York law, the applicable minimum wage rate is determined by the size and
location of the employer and the dates of the plaintiff’s employment. N.Y. Lab. Law § 652(1);
12 N.Y.C.R.R. § 142-2.1(a). The Amended Complaint alleges that Plaintiff was employed
from July 23, 2023 to September 14, 2024, and that at least two employees worked for
Defendants. (See Am. Compl., ECF No. 19 ¶¶ 7, 15.) However, because the Amended
Complaint does not allege El Patron’s or Defendants’ exact number of employees during the
relevant period, the Court will use the applicable minimum wage rates for small employers.
Accord Ramirez v. Nahid Furniture Inc, No. 24-CV-4907 (RER)(MMH), 2026 WL 759236,
at *8 (E.D.N.Y. Mar. 17, 2026) (applying small-employer minimum wage rate where
complaint was silent about the number of defendant’s employees), R. & R. adopted sub nom.
Medina Ramirez v. Nahid Furniture Inc, No. 24-CV-4907 (RER)(MMH), 2026 WL 881371
(E.D.N.Y. Mar. 31, 2026); Reyes v. Lincoln Deli Grocery Corp., No. 17-CV-2732 (KBF),
2018 WL 2722455, at *5 (S.D.N.Y. June 5, 2018) (same); N.Y. Lab. Law § 652(1)(a)(ii); 12
N.Y.C.R.R. § 142-2.1(a)(1)(ii). During the relevant period, small employers were subject to
minimum wage rates of $15.00 per hour from January 1, 2023 until December 31, 2023; and
$16.00 per hour from January 1, 2024 through December 31, 2024. See id.
Next, “for the purposes of determining whether Plaintiff was paid the prevailing
minimum wage, the Court must determine [her] regular hourly rate of pay.” Sanchez, 643 F.
Supp. 3d at 371 (cleaned up). Under the NYLL, the regular hourly wage rate for non-
hospitality industry employees like Plaintiff who were paid on a weekly basis “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 was paid a weekly salary of
either $650.00 or $700.00 from approximately July 2023 through August 2024, for working
between 48 and 62 hours per week. (See Am. Compl., ECF No. 19 ¶¶ 18–26.) Therefore,
Plaintiff’s regular hourly pay rate ranged from approximately $13.54 (i.e., $650.00 per week
÷ 48 hours per week) to $11.29 (i.e., $700.00 per week ÷ 62 hours per week), which is less
than the applicable NYLL minimum wage rates.6 Accordingly, the Court respectfully
recommends that Defendants should be liable for violations of the NYLL’s minimum wage
provisions.
2. Overtime Wages (Counts 1 & 2)
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 he is employed.’” Dejesus, 726 F.3d
at 88 (alterations omitted) (quoting 29 U.S.C. § 207(a)(1)). Under New York law, for non-
hospitality workers such as Plaintiff, “[a]n employer shall pay an employee for overtime at a
wage rate of one and one-half times the employee’s regular rate for hours worked in excess of
40 hours in one workweek.” 12 N.Y.C.R.R. § 142-2.2. To state a plausible FLSA overtime
claim, “plaintiffs must sufficiently allege ‘40 hours of work in a given workweek as well as
6 As noted, Plaintiff avers in her declaration that she worked seven days per week for 56 hours per
week and was paid $700.00. (See Yannes Decl., ECF No. 30-5 ¶¶ 9, 14.) Even if the Court applies
56 hours per week, Plaintiff earned only $12.50 per hour during this period (i.e., $700.00 per week
÷ 56 hours per week), which is still less than the applicable NYLL minimum wage. (See § VII.B,
infra.)
some uncompensated time in excess of the 40 hours.’” Herrera v. Comme des Garcons, Ltd.,
84 F.4th 110, 115 (2d Cir. 2023) (quoting 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 Defendants failed to pay her the requisite overtime
pay for certain weeks of her employment. Plaintiff alleges that during certain time periods of
her employment she worked over 40 hours a week (ranging from 48 to 62 hours a week) but
was never paid an overtime premium of one-and-one half times her regular pay rate for each
hour worked in excess of 40 per week. (See Am. Compl., ECF No. 19 ¶¶ 20, 23, 27.) The
Court therefore respectfully recommends that Defendants should be liable for failure to pay
overtime wages under the FLSA and NYLL.
3. Wage Notices & Wage Statements (Count 5)
Pursuant to the New York Wage Theft Protection Act (“WTPA”), an employer must
provide its employees, at the time of hiring, a written notice containing, inter alia, “the rate or
rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece,
commission, or other; allowances, if any, claimed as part of the minimum wage, including tip,
meal, or lodging allowances;” “the regular pay day designated by the employer;” and the
employer’s address and telephone number. N.Y. Lab. Law § 195(1)(a). The WTPA also
requires employers to “provide employees with ‘a statement with every payment of wages,’
listing various information including the dates of work covered by the payment, information
identifying the employer and employee, details regarding the rate of pay and the overtime rate
of pay, and the number of hours worked.” Perry, 2022 WL 1018791, at *8 (quoting N.Y. Lab.
Law § 195(3)).
“[A] technical violation triggering a statutory damage award only confers Article III
standing if the plaintiff demonstrates an actual and concrete injury resulting from that
violation.” Guthrie v. Rainbow Fencing Inc., No. 21-CV-5929 (KAM)(RML), 2022 WL
18999832, at *6 (E.D.N.Y. Dec. 13, 2022) (“Guthrie I”) (citing TransUnion LLC v. Ramirez,
594 U.S. 413 (2021)), R. & R. adopted as modified, 2023 WL 2206568 (E.D.N.Y. Feb. 24,
2023) (“Guthrie II”), aff’d, 113 F.4th 300, 310–11 (2d Cir. 2024) (“Guthrie III”). “To establish
[Article III] standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant;
and (iii) that the injury would likely be redressed by judicial relief.” TransUnion, 594 U.S. at
423 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). To plausibly allege a
WTPA violation, “a plaintiff must show some causal connection between the lack of accurate
notices and the downstream harm[,]” Guthrie III, 113 F.4th at 308, and “[a]n ‘asserted
informational injury that causes no adverse effects cannot satisfy Article III.’” Id. at 307
(quoting TransUnion, 594 U.S. at 442, which in turn quotes Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 1004 (11th Cir. 2020)). In other words, “the plaintiff-employee must
support a plausible ‘theory as to how he was injured by [the] defendants’ failure to provide the
required documents.’” Tzilin, 2024 WL 4309775, at *11 (quoting Guthrie III, 113 F.4th at
309).
“In the wake of Guthrie [III], [c]ourts in this Circuit are in agreement that a plaintiff
has standing if they plausibly allege 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.” Cruz v. PJR Drywall Constr. Inc., No. 24-CV-8567 (RPK)(MMH), 2026 WL
663716, at *12 (E.D.N.Y. Mar. 9, 2026) (citing Zambrano v. Envios Espinoza, Inc., No. 22-
CV-3031 (OEM)(SIL), 2025 WL 1808694, at *12 (E.D.N.Y. July 1, 2025)), R. & R. adopted
by Order Adopting R. &. R., Cruz v. PJR Drywall Constr. Inc., No. 24-CV-8567
(RPK)(MMH) (E.D.N.Y. Mar. 25, 2026). The allegations of the Amended Complaint establish
that Defendants’ failure to provide hiring notices and wage statements to Plaintiff caused her
a tangible injury. Plaintiff alleges that Defendants failed to provide her with paystubs, wage
statements, and written notice providing information required by the WTPA and to post a
notice explaining the minimum wage and overtime pay rights provided by the FLSA or New
York Labor Law (Am. Compl., ECF No. 19 ¶¶ 34–37), “causing financial harm to Plaintiff by
preventing her from being aware of, informed of and from receiving her lawfully owed
compensation[,]” (id. at 13–14 ¶¶ 51–52). Plaintiff sufficiently establishes Article III standing
when she alleges that the denial of the statutory right to wage notices and wage statements
ultimately resulted in underpayment. See Guthrie III, 113 F.4th at 309–10 (citing Harty v. W.
Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022)) (“a plaintiff-employee who has plausibly
shown that defective notices led him or her to lose wages has . . . a concrete interest” sufficient
to establish standing); see also, e.g., Tene v. Neuehaus Studios Inc., No. 23-CV-2040
(NRM)(MMH), 2025 WL 2731755, at *8 (E.D.N.Y. Sep. 25, 2025) (plaintiff alleged that
failure to provide him with proper wage notices injured him by causing “lack of knowledge
about the rates of pay he was receiving and/or should have [been] receiving for his regular
hours and overtime hours, terms, and conditions of his pay, and . . . an inability to identify his
hourly rate of pay to ascertain whether he was being properly paid in compliance with the
FLSA and NYLL—which he was not”), R. & R. adopted by Order Adopting R. & R., Tene v.
Neuehaus Studios Inc., No. 23-CV-2040 (NRM)(MMH) (E.D.N.Y. Oct. 10, 2025).
The Court thus respectfully recommends that Defendants should be liable for violations
of the NYLL’s wage notice and wage statement provisions.
VII. DAMAGES
A. Burden of Proof
“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 *8 (E.D.N.Y. Aug. 24, 2021) (quoting Credit Lyonnais Secs. (USA), Inc. v. Alcantra, 183
F.3d 151, 155 (2d Cir. 1999)), R. & R. adopted by Order Adopting R. & R., Ramah v. 138
Hillside Ave Inc., No. 20-CV-3317 (LDH)(LB) (E.D.N.Y. Sep. 16, 2021).
However, because the employee bears the burden to properly record a plaintiff’s work
hours, that plaintiff is not required to compute FLSA damages precisely. Chacha v. Nueva
Era Flower Corp., No. 23-CV-3367 (AMD)(MMH), 2025 WL 2609246, at *13 (E.D.N.Y.
Sep. 8, 2025) (cleaned up), R. & R. adopted by 2025 WL 2775917 (E.D.N.Y. Sep. 30, 2025).
“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 Amador v. 109-19 Food Corp., No. 21-CV-4633
(EK)(VMS), 2025 WL 1032031, at *27 (E.D.N.Y. Mar. 14, 2025) (“In order to determine
damages, the court may presume the accuracy of plaintiffs’ recollection and estimates of hours
worked set forth in their affidavits and damages calculations.”) (cleaned up), R. & R. adopted
by 2025 WL 1031133 (E.D.N.Y. Apr. 7, 2025).
A plaintiff who establishes claims under the FLSA and NYLL may not recover
damages under both the FLSA and the NYLL for wages earned during the same period. Rosas
v. M & M LA Solucion Flat Fixed Inc., No. 23-CV-1212 (DG)(MMH), 2024 WL 4131905, at
*13 (E.D.N.Y. Sept. 10, 2024), R. & R. 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. Sep. 30, 2024). Rather,
“if a plaintiff is entitled to damages under both federal and state wage law, the court has
discretion to award that plaintiff damages under the statute providing the greatest amount of
relief.” Reyes v. Bellerose Halal Meat Inc., No. 21-CV-6413 (MKB), 2025 WL 2664258, at
*10 (E.D.N.Y. Sep. 17, 2025) (cleaned up). Because the NYLL provides the same or greater
recovery than the FLSA at all relevant times during Plaintiff’s employment with Defendants,
the Court will apply the NYLL for all damages calculations.
As described below, Plaintiff seeks unpaid minimum wages, unpaid overtime wages,
liquidated damages, pre-judgment interest, statutory damages, and attorneys’ fees and costs.
(See Am. Compl., ECF No. 19 ¶ 55; Mem., ECF No. 31 at 13.) Plaintiff submits a damages
chart based on the allegations set forth in the Amended Complaint, declarations of Plaintiff
and Plaintiff’s counsel, and a supplemental letter explaining the basis for the damages. (See
ECF No. 30-6 (Damages Chart); Mem., ECF No. 31; Yannes Decl., ECF No. 30-5 ¶ 22; Supp.
Ltr., ECF No. 37.) Accordingly, the Court respectfully recommends that Plaintiff should be
awarded damages as analyzed further below.7
B. Minimum Wage
The Court has already determined that Plaintiff is entitled to the minimum wage rates
for small employers pursuant to the NYLL and its regulations. (See § VI.D.1, supra.)
Specifically, for small employers in New York, the applicable minimum wage rates were (1)
$15.00 per hour for all work performed on or after December 31, 2019 and (2) $16.00 per hour
for all work performed on or after January 1, 2024. N.Y. Lab. Law § 652(1)(a)(ii); 12
N.Y.C.R.R. § 142-2.1(a)(1)(ii). To calculate the minimum wage damages, the Court calculates
the difference between Plaintiff’s 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.
For example, from the period of July 23, 2023 to November 18, 2023, Plaintiff typically
worked six days per week but twice monthly she worked seven days per week. (See Yannes
Decl., ECF No. 30-5 ¶¶ 8–9.) For the weeks Plaintiff worked six days per week, Plaintiff was
paid $650.00 per week. (See Yannes Decl., ECF No. 30-5 ¶ 14.) Therefore, Plaintiff’s hourly
wage rate during this time was $13.54 (i.e., ($650.00 ÷ 48 hours)). Further, for those weeks
when Plaintiff worked seven days per week, Plaintiff was paid $700.00 per week. (See id.)
Therefore, Plaintiff’s hourly wage rate during this time was $12.50 (i.e., ($700.00 ÷ 56 hours)).
7 To the extent that the Court’s calculations differ from Plaintiff’s due to rounding or other
discrepancies, the Court’s calculations will govern. And as noted, Plaintiff does not request
damages for unpaid spread of hours pay. (See generally Mem., ECF No. 31 & Supp. Ltr., ECF
No. 37.)
Using the formula described above, Plaintiff is entitled to the unpaid minimum wages set forth
in Table 1:
Table 1: Unpaid Minimum Wages
Diff.
Reg. between Total
Regular NY Total Unpaid
Weekly Rate MW & Hours #
Pay Period Pay Minimum Minimum
Pay Hours Reg. Worked Weeks8
Rate Wage Wage
Worked Pay Per
Rate Week
07/23/23 –
11/18/23 $12.50 $700.00 $15.00 40 $2.50 56 9 $900.00
(7 Days)
07/23/23 –
11/18/23 $13.54 $650.00 $15.00 40 $1.46 48 8 $467.20
(6 Days)
11/19/23 –
$7.50 $150.00 $15.00 20 $7.50 20 6 $900.00
12/30/23
12/31/23 –
$7.50 $150.00 $16.00 20 $8.50 20 6.71 $1,140.70
02/15/24
02/22/24 –
$11.67 $700.00 $16.00 40 $4.33 60 23.14 $4,007.85
08/01/24
08/02/24 –
$13.75 $550.00 $16.00 40 $2.25 40 6.14 $552.60
09/14/24
Total $7,968.35
While Plaintiff uses the correct formula to calculate minimum wage damages (see
Supp. Ltr., ECF No. 37 at 1–2), the Court finds errors in the calculations. These errors are
mainly attributable to rounding, and the difference between Plaintiff’s calculations and the
Court’s are minimal. However, for the periods of employment where Plaintiff worked only
20 hours, Plaintiff improperly multiplied the difference in regular wage rate and the minimum
wage rate by 40 hours. This incorrectly resulted in double the calculated damages for these
8 “Weeks” refers to the number of weeks during the corresponding dates of employment.
periods, which has been adjusted accordingly. (See id. (using the same formula with 40 hours
as the multiplying factor for all pay periods); ECF No. 31-6 (Damages Chart) (calculating that
Plaintiff is owed $1,800.00 and $2,282.86, respectively, for the two periods between
November 19, 2023 and February 15, 2024).)
Therefore, the Court respectfully recommends that Plaintiff should be awarded
$7,968.35 for unpaid minimum wages.
C. Overtime Wages
As noted, under the FLSA and NYLL, Plaintiff is entitled to overtime compensation of
at least one and one-half times his 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),
R. & R. adopted by 2016 WL 7480363 (E.D.N.Y. Dec. 29, 2016)). When a plaintiff is paid
above the minimum wage, however, the “overtime compensation should be determined by
multiplying [the] agreed upon wage rate by one and one-half.” Marvici v. Roche Facilities
Maint. LLC, No. 21-CV-4259 (AS)(JLC), 2023 WL 5810500, at *7 (S.D.N.Y. Sep. 8, 2023),
R. & R. adopted by 2023 WL 6648902 (S.D.N.Y. Oct. 12, 2023).
Plaintiff is entitled to one- and one-half times the applicable New York City minimum
wage for all weekly hours worked over 40. Specifically, Defendants were required to pay
Plaintiff the following overtime hourly rates: (a) $22.50 between July 23, 2023 through
November 18, 2023 (i.e., $15.00 x 1.5); and (b) $24.00 on or after January 1, 2024 (i.e., $16.00
x 1.5). “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. Sanchez, 643 F. Supp. 3d at 377.
Plaintiff regularly worked between 40 and 60 hours per week, of which any time over
40 hours should have been paid at the overtime rate. For example, between July 23, 2023 and
November 18, 2023, when Plaintiff worked 6 days per week for 56 hours per week, she was
paid at a regular hourly rate of $12.50 for all hours worked but should have been paid $22.50
for the 16 overtime hours. The Court thus calculates her unpaid overtime for this period as
$1,440.00 (i.e., (($22.50 – $12.50) x 16 overtime hours x 9 weeks)). The Court finds that
Plaintiff’s calculations are generally accurate. (See ECF No. 31-6 (Damages Chart).) As such,
applying the formula described herein, Plaintiff is entitled to total unpaid overtime wages listed
in Table 2:
Table 2: Unpaid Overtime Wages
Diff.
OT Rate Total
Regular NY between Total
Pay NYLL Hours Hours
Pay Minimum OT & # Weeks Underpaid
Period OT Rate Worked Worked
Rate Wage Reg. Pay OT Wage
Per Week Per Week
Rate
07/23/23 –
11/18/23 $12.50 $15.00 $22.50 $10.00 16 56 9 $1,440.00
(7 Days)
07/23/23 –
11/18/23 $13.54 $15.00 $22.50 $8.96 8 48 8 $573.44
(6 Days)
02/22/24 –
$11.67 $16.00 $24.00 $12.33 20 60 23.14 $5,706.32
08/01/24
Total $7,719.76
Therefore, the Court respectfully recommends that Plaintiff should be awarded
$7,719.76 for unpaid overtime wages.
D. Statutory Damages
Plaintiff seeks $5,000 for Defendants’ failure to provide annual wage notices pursuant
to NYLL § 195(1) and $5,000 for their failure to provide wage statements pursuant to NYLL
§ 195(3). (Mem., ECF No. 31 at 9.)
The penalty for failing to provide a wage notice is $50 per day, up to $5,000 (i.e., 100
days or more), and the penalty for failing to provide wage statements is $250 per day, up to
$5,000 (i.e., 20 days or more). Cuchimaque v. A. Ochoa Concrete Corp., No. 22-CV-6136
(RPK)(RML), 2023 WL 5152336, at *6 (E.D.N.Y. July 18, 2023) (citing N.Y. Lab. Law
§§ 198(1-b) & 198(1-d)), R. & R. adopted by 2023 WL 9104384 (E.D.N.Y. Aug. 23, 2023).
Plaintiff alleges that she worked over 100 days without receiving wage notices and more than
20 days without receiving wage statements. (See Yannes Decl., ECF No. 30-5 ¶¶ 17–21.)
Plaintiff is thus entitled to the maximum statutory damages of $5,000 for violations of NYLL
§ 195(1), and $5,000 for violations of NYLL § 195(3).
Therefore, the Court respectfully recommends that Plaintiff should be awarded
$10,000.00 for Defendants’ violations of NYLL §§ 195(1) and 195(3).
E. Liquidated Damages
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. “Liquidated damages are not available for damages under the
WTPA.” Lata v. Live Constr. Corp., No. 24-CV-5981 (RER)(CLP), 2025 WL 2782336, at
*13 n.10 (E.D.N.Y. Sep. 18, 2025) (citing Ge Chun Wen v. Hair Party 24 Hours Inc., No. 15-
CV-10186 (ER)(DF), 2021 WL 3375615, at *11 (S.D.N.Y. May 17, 2021), R. & R. adopted
sub nom. Wen v. Hair Party 24 Hours Inc., 2021 WL 2767152 (S.D.N.Y. July 2, 2021)), R. &
R. adopted by 2025 WL 2782495 (E.D.N.Y. Sep. 30, 2025).
Here, where Defendants have defaulted and therefore make no showing that they acted
in good faith when they underpaid Plaintiff, the greater liquidated damages available under the
NYLL are appropriate. Accordingly, based on the Court’s calculations herein, the Court
respectfully recommends that Plaintiff should be awarded $15,688.11 in liquidated damages
under the NYLL, including $7,968.35 in unpaid minimum wages and $7,719.76 in unpaid
overtime wages.
F. Pre-Judgment Interest
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 v. JS Food & Grocery Corp., No. 23-CV-6617 (LDH)(CLP), 2025 WL
959096, at *11 (E.D.N.Y. Feb. 6, 2025) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d
253, 265 (2d Cir. 1999)), R. & R. 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). 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).
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.E., supra.) The Court
calculates pre-judgment interest by determining the midpoint of the relevant period. The Court
selects February 17, 2024 as the midpoint between the earliest date for which Plaintiff can
recover for unpaid wages (July 23, 2023) and Plaintiff’s end date of employment (September
14, 2024), as a reasonable intermediate date. Applying a nine percent per year rate, the Court
respectfully recommends that Plaintiff should be awarded $3,502.35 in pre-judgment interest
to increase at a rate of $3.87 per day.9
G. 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. Local 137 Sheet Metal Workers Int’l Ass’n, 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, the Court recommends that Plaintiff should be granted
post-judgment interest calculated from the date the Clerk of Court enters judgment in this
action until the date of payment, at the rate set forth in 28 U.S.C. § 1961.
H. Attorneys’ Fees
Plaintiff seeks attorneys’ fees of $6,950.00 based on 16.8 hours of work by attorneys
Andrew Beresin and Michael Samuel. (Samuel Aff., ECF No. 30 ¶¶ 25–26.)10
“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), R. & R. 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
9 The Court calculates the daily prejudgment interest rate by multiplying the total amount of unpaid
wages for Plaintiff ($15,688.11) by 9%, then dividing by 365, for a daily rate of $3.87. The daily
rate is then multiplied by 905, the number of days between February 17, 2024 and August 10,
2026, the date of this Report & Recommendation.
10 Plaintiff’s attorney time records format the time billed as “hh:mm,” e.g., the notation “16:48”
refers to 16 hours and 48 minutes (16.8 hours) of total time billed. (See Samuel Aff., ECF No. 30
¶ 26.)
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),
R. & R. 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.” Ochoa v. 5 Square Mgmt.
LLC, No. 24-CV-7300 (RPK)(MMH), 2026 WL 796866, at *13 (E.D.N.Y. Mar. 23, 2026)
(quoting Cao v. Wedding in Paris LLC, 727 F. Supp. 3d 239, 299 (E.D.N.Y. 2024), which in
turn quotes Esquivel, 2023 WL 6338666, at *17), R. & R. adopted by Order Adopting R. & R.,
Ochoa v. 5 Square Mgmt. LLC, No. 24-CV-7300 (RPK)(MMH) (E.D.N.Y. June 4, 2026); 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 hourly rates of $400.00 for attorney Andrew Beresin and $500.00 for
attorney Michael Samuel. (Samuel Aff., ECF No. 30 ¶ 25.) Mr. Beresin has been admitted to
practice in the State of New York since 1992 and has litigated over 75 FLSA cases in the past
six years. (Id.) Mr. Samuel has been admitted to practice in the State of New York since 1993
and has litigated over 250 FLSA cases in the state. (Id.) Counsel provided no additional
background information in support of the request for fees.
The Court finds that the requested hourly rates for both attorneys are unreasonable.
First, the rate of $500.00 is not consistent with what a reasonable client would pay or what
courts in the Eastern District of New York would award comparable legal services. See, e.g.,
Yanes v. Juan & Jon Inc., No. 19-CV-201 (JS)(LGD), 2024 WL 1639932, at *2 (E.D.N.Y.
Apr. 16, 2024) (reducing requested hourly rate for Mr. Samuel from $500 to $450.00 as
“excessive”); Pich v. Queens Garden Nursery Inc., No. 22-CV-3362 (MKB)(MMH), 2024
WL 687234, at *14 (E.D.N.Y. Feb. 20, 2024) (reducing hourly rate of Mr. Samuel and Mr.
Beresin due to error-filled filings), R. & R. adopted by 2024 WL 967636 (E.D.N.Y. Mar. 6,
2024). Second, a rate reduction is warranted in this case in which counsel: (1) submitted a
default judgment motion that was seriously questioned by the Court and then withdrawn
because of procedural errors; (2) amended the Complaint after several months because counsel
named the wrong defendant; and (3) submitted the instant default motion in which the Court
needed supplemental information and also recommends partial denial based on incorrect
damages calculations and abandoned claims. See Pich, 2024 WL 687234, at *14 (reducing
fees because “‘[n]otwithstanding the fact that this case should be relatively straightforward,’
Plaintiff’s first motion for default judgment was withdrawn because of its facial
noncompliance with the Local Civil Rules and the instant motion papers ‘are littered with typos
and inconsistencies.’”) (quoting Morales v. Los Cafetales Rest. Corp., No. 21-CV-1868
(AMD)(RER), 2023 WL 7684775, at *8 (E.D.N.Y. Oct. 12, 2023), R. & R. adopted by 2023
WL 8021460 (E.D.N.Y. Nov. 20, 2023)). Thus the Court respectfully recommends that Mr.
Samuel’s hourly rate should be reduced to $450.00 and that Mr. Beresin’s should be reduced
to $350.00.
2. Hours Expended
“For purposes of determining a reasonable fee, the number of hours billed must also be
reasonable[.]” Abreu v. Congregation Yetev Lev D’Satmar Meats & Poultry, Inc., No. 17-CV-
272 (KAM)(LB), 2019 WL 2526087, at *5 (E.D.N.Y. June 19, 2019). “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 reduction, the Court also finds that the
number of hours expended in this case are unreasonable. According to the billing records, Mr.
Beresin expended a total of 14.5 hours and Mr. Samuel spent a total of 2.3 hours. (See Samuel
Aff., ECF No. 30 ¶ 26.) However, more than half of Mr. Beresin’s time is attributed to drafting
the Complaint, amending the Complaint, and drafting the second motion for default judgment
to correct errors in the Complaint and first default judgment motion. (See id.) Similarly, Mr.
Samuel time entries include 1.5 hours “filing . . . a complaint and supporting documents” and
preparing a request for entry of default, but those documents did not even name the correct
individual defendant. (See id.) 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 20% reduction in hours is appropriate, and
attorneys’ fees should be based on 11.6 hours for Mr. Beresin and 1.8 hours for Mr. Samuel.
Accordingly, the Court respectfully recommends that Plaintiff should be awarded
$4,870.00 in attorneys’ fees.11
I. Costs
Plaintiff seeks $745.50 in costs, including filing and service of process fees. (See
Samuel Aff., ECF No. 30 ¶ 27.) 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 *16. Plaintiff is entitled to all
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), R. & R. adopted by 2023 WL 2532006 (E.D.N.Y.
11 The attorneys’ fees are calculated as follows: ($350.00 x 11.6) + ($450.00 x 1.8) = $4,870.00
Mar. 14, 2023). Plaintiff is entitled to the $405.00 filing fee for this case because the docket
reflects that she paid the fee. (ECF No. 1 Dkt. Entry.) Second, Plaintiff also submits invoices
to support process server fees of $340.50. (ECF No. 30-7.)
Therefore, the Court respectfully recommends that Plaintiff should be awarded a total
of $745.50 in costs.
VIII. CONCLUSION
For the foregoing reasons, the Court respectfully recommends that Plaintiff’s motion
for default judgment at ECF No. 29, as supplemented by ECF No. 37, should be granted in
part as follows: (1) the Clerk of Court should enter the proposed default judgment at ECF
No. 31-1 (as amended)12 against Defendants El Patron Minimarket Corp. and Carlos A.
Vinanzaca, and (2) Plaintiff should be awarded damages in the amount of $50,494.07, which
includes: (a) $7,968.35 in unpaid minimum wages; (b) $7,719.76 for unpaid overtime wages;
(c) $10,000 in statutory damages; (d) $15,688.11 in liquidated damages; (e) $3,502.35 in pre-
judgment interest to increase by $3.87 per day until entry of judgment; (f) $4,870.00 in
attorneys’ fees; and (g) $745.50 in costs.
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 to
El Patron Minimarket Corp. and Carlos A. Vinanzaca at 3205 Junction Boulevard, Flushing,
New York 11369; and to Carlos A. Vinanzaca at 3205 Junction Boulevard, Apt. 1, Flushing,
New York 11369.
12 The amendments to the proposed judgment at ECF No. 31-1 are revising the damages to be
consistent with this Report and Recommendation, if adopted, or the Court’s order, if modified.
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 Merle. If a party
fails to object timely to this Report and Recommendation, it waives any right to further judicial
review of this decision. See Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 359 (2d
Cir. 2025).
SO ORDERED.
Brooklyn, New York
August 10, 2026
/s/Marcia M. Henry
MARCIA M. HENRY
United States Magistrate Judge