Opinion
18-CV-09374 (GBD)(SN)
09-23-2022
JOSE PASTRANA and ZACARIAS HERNANDEZ, individually, Plaintiffs, v. MR. TACO LLC D/B/A MR. TACO NYC, ADRIAN GROSSMAN, and RICHARD DOE, Defendants.
TO THE HONORABLE GEORGE B. DANIELS:
REPORT & RECOMMENDATION
SARAH NETBURN UNITED STATES MAGISTRATE JUDGE
Jose Pastrana and Zacarias Hernandez (the "Plaintiffs") sued Mr. Taco, LLC (d/b/a Mr. Taco NYC), Adrian Grossman, and Richard Doe (the "Defendants") after they allegedly failed to pay Plaintiffs minimum and overtime wages as required by the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). Plaintiffs also allege violations of various other NYLL Provisions. Defendants failed to appear in response to Plaintiffs' Complaint. The Honorable George B. Daniels entered a default against the Defendants and referred the matter to me for an inquest on damages. I find that Defendants are liable for violating the minimum and overtime wage provisions of the FLSA and NYLL, failing to provide spread-of-hours pay, and unlawfully wit holding tips. I recommend Plaintiffs be awarded a total of $33,161.00 in damages plus all applicable interest.
BACKGROUND
Plaintiffs filed their Complaint on October 12, 2018, seeking monetary damages arising out of Defendants' FLSA and NYLL violations. ECF No. 1 ("Compl."). Plaintiffs were employed by Defendants from August 27, 2018, until October 6, 2018. Compl. ¶¶ 20, 22. Defendants willfully and knowingly failed to pay Plaintiffs in accordance with New York and federal minimum wage laws, and denied them overtime compensation and spread-of-hours pay. Compl. ¶¶ 103, 107, 112, 116, 120. They also failed to provide Plaintiffs with required wage notice and wage statements, failed to pay Plaintiffs in a timely manner, and with respect to Hernandez, unlawfully and intentionally missappropriated tips. Compl. ¶¶ 124, 127, 134, 135, 138.
Plaintiffs seek damages for unpaid minimum wage and overtime compensation, and any improper deductions or credits taken against their wages. Compl. ¶ 16. They also request damages for spread-of-hours pay and other violations under NYLL as applicable. Id. Plaintiffs claim they are entitled to liquidated damages, pre-judgement and post-judgment interest, reimbursement for expenses incurred in this action, and attorneys' fees and costs. Id. Plaintiffs filed affidavits of service on Defendants on November 1, 2018, and November 5, 2018. ECF Nos. 10-12. After Defendants did not appear for three months, Plaintiffs sought and obtained a Clerk's certificate of default for each defendant. ECF Nos. 20-22.
On May 17, 2019, Judge Daniels issued an order requesting that Plaintiffs move for default judgment. ECF No. 24. Plaintiffs submitted the motion on June 14, 2019. ECF No. 25. Judge Daniels granted Plaintiffs' motion against all Defendants on July 11, 2019, and referred the matter to me for an inquest on damages. ECF No. 31. Thereafter, Plaintiffs filed their proposed findings of fact and conclusion of law. ECF Nos. 27-29. To date, Defendants have not appeared.
DISCUSSION
I. Legal Standard
The Court of Appeals set forth the procedural rules applicable to the entry of a default judgment in City of New York v. Mickalis Pawn Shop, LLC:
"Federal Rule of Civil Procedure 55 is the basic procedure to be followed when there is a default in the course of litigation." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004). Rule 55 provides a "two-step process" for the entry of judgment against a party who fails to defend: first, the entry of a default, and second, the entry of a default judgment. New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). The first step, entry of a default, formalizes a judicial recognition that a defendant has, through its failure to defend the action, admitted liability to the plaintiff. . . . The second step, entry of a default judgment, converts the defendant's admission of liability into a final judgment that terminates the litigation and awards the plaintiff any relief to which the court decides it is entitled, to the extent permitted by Rule 54(c).645 F.3d 114, 128 (2d Cir. 2011).
Where default has been entered against a defendant, courts accept as true all the well-pleaded facts alleged in the complaint, except those concerning the amount of damages. See In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000).
In an inquest for damages where the plaintiff has sufficiently pleaded a claim on which relief can be granted, the only remaining issue is to determine the amount of damages owed. See Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must provide adequate support for the requested relief. Id; see also Malletier v. Carducci Leather Fashions, Inc., 648 F.Supp.2d. 501, 503 (S.D.N.Y.2009) ("[A] plaintiff seeking to recover damages against a defaulting defendant must prove its claim th[r]ough the submission of evidence . . . ."). A court may determine the amount a plaintiff is entitled to recover without a hearing, so long as: (1) the court determines the proper rule for calculating damages, and (2) the evidence submitted by the plaintiff establishes "with reasonable certainty" the basis for the damages. Id.
II. Liability Under the FLSA and NYLL
To plead a FLSA claim, a plaintiff must show, "(1) the defendant is an enterprise participating in commerce or the production of goods for the purpose of commerce; (2) the plaintiff is an 'employee' within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA." Pelgrift v. 335 W. 41st Tavern Inc., No. 14-cv-8934 (AJN), 2017 WL 4712482, at *7 (S.D.N.Y. Sept. 28, 2017) (quoting Jiaren Wei v. Lingtou Zhengs Corp., No. 13-cv-5164 (FB)(CLP), 2015 WL 739943, at *5 (E.D.N.Y. Feb. 20, 2005)).
An enterprise engaged in commerce is an enterprise that "has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person" and 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).
Plaintiffs' Complaint states Defendants were engaged in interstate commerce, with numerous items used in the restaurant on a daily basis being goods produced outside of New York. Compl. ¶ 36. Defendants also had a gross annual volume of sales not less than $500,000. Id. at ¶ 35. "Ordinarily, allegations detailing statutory definitions without providing additional facts may not be sufficient to infer a nexus to interstate commerce. In the context of default, however, the Court may accept these uncontested allegations as true and make reasonable inferences." Singh v. Meadow Hill Mobile Inc., No. 20-cv-3853 (CS)(AEK), 2021 WL 3862665, at *4 (Aug. 29, 2021), adopted, 2021 WL 3862665 (S.D.N.Y. Aug. 29, 2021); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (E.D.N.Y.2015) ("[I]t is reasonable to infer that [a restaurant] requires a wide variety of materials to operate .... It is also reasonable to infer that some of these materials moved or were produced in interstate commerce."). Given the forgoing, Plaintiffs have adequately claimed that Defendants were participating in commerce.
Plaintiffs properly claim they were employees of Defendants for the relevant time period. An employee is "any individual employed by an employer." 29 U.S.C. § 203(e)(1). The burden on Plaintiffs to demonstrate their status as employees is low. Fermin, 93 F.Supp.3d at 32 ("Insofar as Plaintiffs' complaint alleges that Defendants employed Plaintiffs within this statutory meaning, it follows that for purposes of this default, they qualify as employees under the FLSA.") (cleaned up). Therefore, Plaintiffs have adequately claimed they were employees of Defendants for the relevant period.
Finally, Plaintiffs, who were employed as cooks, food preparers, delivery workers, dishwashers, counter attendants, and cashiers, are not exempt from the FLSA's overtime requirement. See Fermin, 93 F.Supp.3d at 32 (finding plaintiff s job as a "kitchen helper/food preparer" constituted non-exempt employment under the FLSA).
The definitions of employer and employee are almost identical under NYLL, except an employer is not required to meet a certain minimum in sales to be liable for a violation. See Pelgrift 2017 WL 4712482, at *7; see also NYLL §§ 651(5)-(6). Defendants are liable as employers under the FLSA and NYLL because the tests are not meaningfully different. Pelgrift, 2017 WL 4712482, at *7. According to the FLSA and NYLL, each Defendant is jointly and severally liable for any damages awarded to Plaintiffs. See Pineda v. Masonry Constr., Inc., 831 F.Supp.2d 666, 685-86 (S.D.N.Y. 2011).
Plaintiffs allege Defendants violated the FLSA and NYLL by failing to adhere to rules on minimum wage, overtime wage compensation, and tools-of-the-trade expense reimbursement. Compl. ¶¶6-11, 112, 117, 124, 127, 130, 138. They further allege Defendants violated the NYLL's unlawful deduction of tips, spread-of-hours, notice and record keeping, wage statement, and timely payment provisions. Id. Because Plaintiffs properly allege an employer-employee relationship with Defendants under both the FLSA and NYLL, I consider Defendants' alleged violations of both statutes.
A. Minimum Wage
The Defendants violated the FLSA and NYLL's minimum wage provisions. An employer may not pay an employee less than the statutory minimum wage for each hour the employee worked in any week. 29 U.S.C. § 206(a); NYLL § 652(1). New York has an additional minimum wage order applicable to the hospitality industry. See 12 N.Y.C.R.R. § 146-1.1(a) ("Every employer in the hospitality industry must pay to each employee ... at least the minimum wage rates provided in this Part.").
Employees bear the initial burden of proving they were not properly compensated for their work, de Los Santos v. Marte Constr., Inc., No. 18-cv-10748 (PAE)(KHP), 2020 WL 8549054, at *5 (Nov. 25, 2020), adopted, 2020 WL 8549055 (S.D.N.Y. Dec. 17, 2020). "In the context of a default and where Plaintiffs lack access to the employment records necessary to prove they were not properly compensated, Plaintiffs may meet their burden of proof by relying on recollection alone." Id. (internal quotation marks and citation omitted).
1. Employer Size
Under New York law, the minimum wage rate is determined by the size of the employer. 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(a). Plaintiffs seek compensation at the rate applicable to large employers in New York City. ECF No. 26 ¶ 61. Plaintiffs have failed to allege Defendants employed the minimum number of employees necessary to be considered a large employer, which is 11 or more employees. Id; 12NY.C.R.R. § 146-1.2(a)(1)(i)(a).
Where a plaintiffs complaint is silent as to the employer's size, district courts have taken varying approaches to determine the proper minimum wage rate to apply in a default judgment. One court determined plaintiffs would be awarded at the minimum wage rate of a large employer because of defendants' default. See Sanchez v. Jyp Foods Inc., No. 16-cv-4472 (JLC), 2018 WL 4502008, at *9 n.13 (S.D.N.Y.Sept. 20, 2018) ("[I]n light of defendants' default, the Court gives plaintiffs the benefit of the doubt and applies the [rate for large employers]."). Other courts in the district have declined to award plaintiffs the rate of large employers if they do not attest to the number of employees that worked for the defendant. See Anzurez v. La Unica Caridad Inc., No. 20-cv-3828 (JMF)(GWG), 2021 WL 2909521, at *4 (July 12, 2021) (finding plaintiff did not prove their employer employed 11 or more employees and therefore "must be compensated at the rate for small employers[.]"), adopted, 2021 WL 3173734 (S.D.N.Y. July 27, 2021).
The Court joins with those who decline to award the rate of large employers absent evidentiary support. Plaintiffs do not to attest to any facts, in either the Complaint or Motion for Default Judgment, regarding the number of employees at Defendants' restaurant. Accordingly, the Court recommends Plaintiffs be compensated at the rate for small employers. See 12 NY.C.R.R. § 146-1.2(a)(1)(i)(b).
The minimum wage for small employers in New York during Plaintiffs' employment was $12.00 per hour. Id. The federal minimum wage for that same period was $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). The Court will calculate liability using the New York wage rate because it is higher. See 29 U.S.C. § 218(a) ("No provision of this chapter . . . shall excuse noncompliance with ... a minimum wage higher than the minimum wage established under this chapter . . . .").
2. Regular Rate of Pay
Defendants are liable for violating the FLSA and NYLL minimum wage provisions for failure to pay Plaintiffs at a rate set by the federal and state statutory minimum wages. "If an employer fails to pay an employee an hourly rate of pay, the employee's regular hourly rate of pay shall be calculated by dividing the employee's total weekly earnings, not including exclusions . . . ." N.Y.C.R.R. § 146-3.5(b). "To determine the regular rate of pay for restaurant employees, the court must divide the employee's total weekly earnings, not including exclusions from the regular rate, by the lesser of 40 hours or the actual number of hours worked by that employee during the work week." Anzurez, 2021 WL 2909521, at *3 (internal quotation marks and citation omitted).
Pastrana worked for Defendants from approximately August 27, 2018, until October 6, 2018. Compl. ¶ 39. From approximately September 1, 2018, until September 7, 2018, the Defendants paid Pastrana a fixed salary of $800 per week. Id. at ¶ 47. From approximately September 8, 2018, until September 14, 2018, he was paid a fixed salary of $720 per week. Id. at ¶ 48. After September 14, 2018, until October 6, 2018, Pastrana was not paid. Id. at ¶ 49. He typically worked 77 hours per week from September 1, 2018, to October 6, 2018. Id. at ¶ 45.
Pastrana received a presumptive regular rate of pay of $20 per hour ($800 divided by 40 hours a week) from September 1, 2018, to September 7, 2018, and $18 ($720 divided by 40 hours a week) per hour from September 8, 2018, to September 14, 2018. Therefore, his presumptive regular rate of pay exceeded the New York minimum wage and he is not entitled to backpay for the first 40 hours worked during those weeks. He is, however, entitled to backpay for August 27, 2018, to August 30, 2018, and September 15, 2018, to October 6, 2018, when he was not paid any wages at all.
Hernandez was employed by Defendants from approximately August 27, 2018, until October 6, 2018. Id. at ¶ 56. From approximately August 27, 2018, until September 10, 2018, the Defendants paid him a fixed salary of $200 per week. Id at ¶¶ 64, 65. After September 11, 2018, until October 6, 2018, he was not paid any wages. Id. at ¶ 66. Hernandez typically worked 70 hours a week from August 27, 2018, till October 6, 2018. Id. at ¶ 63.
Defendants never notified Hernandez his tips were included to offset his wages so he cannot be considered a tipped employee. Compl. ¶ 68; 29 U.S.C. § 203(m)(2)(A)(ii) ("[This subsection] shall not apply ... to any tipped employee unless such employee has been informed by the employer of [these] provisions . . . ."). He is therefore entitled to recover unpaid wages at the statutory set minimum wage.
Hernandez received a presumptive regular rate of pay of $5 ($200 divided by 40 hours a week) per hour from August 27, 2018, to September 10, 2018, and is therefore entitled to backpay for unpaid minimum wages. He is also entitled to backpay from September 11, 2018, to October 6, 2018, when he received no wages.
B. Overtime Compensation
Defendants violated the FLSA and NYLL overtime compensation requirements by failing to pay Plaintiffs wages for hours worked in excess of 40 hours a week. Under both the FLSA and NYLL employees must be paid an overtime premium for hours worked in excess of 40 hours per week. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 146-1.4. Employees are entitled to be paid at a "rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1); see also 12 N.Y.C.R.R. § 146-1.4.
To state a claim for failure to pay overtime compensation, 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. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). An employer who violates 29 U.S.C. § 207 "shall be liable to the employee or employees affected in the amount of their unpaid . . . overtime compensation . . . and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b); see also NYLL § 663(1).
Plaintiffs sufficiently pleaded they "regularly worked in excess of 40 hours per week." Compl. ¶¶ 43, 62. Pastrana did not work in excess of 40 hours from August 27, 2018, until August 30, 2018. Id. at ¶ 44. He did, however, typically work 77 hours per week from September 1, 2018, until October 6, 2018. Id. at ¶ 45. Similarly, Hernandez typically worked 70 hours per week from August 27, 2018, until October 6, 2018. Id. at ¶ 63.
Plaintiffs were not compensated for the overtime hours they worked and were paid only a fixed weekly salary. Compl. ¶¶ 47, 65. Plaintiffs were also not paid any wages at all for some weeks of their employment. Id. at ¶¶ 49, 66. Because Plaintiffs properly claim they typically worked in excess of 40 hours per week without receiving overtime compensation, the Defendants are liable for unpaid overtime wages as well as liquidated damages. Compl. ¶¶ 107-08.
C. Spread-of-Hours Pay
Defendants are liable for unpaid spread-of-hours pay under N.Y.C.R.R. § 146-1.6. Spread-of-hours refers to the "length of the interval between the beginning and end of an employee's workday." Id. On each workday that the spread-of-hours is greater than ten, an employee is entitled to one additional hour of pay at the minimum hourly rate. Id. The spread-of-hours regulation applies to employers that are "restaurants." Id. A restaurant is "any eating or drinking place that prepares and offers food or beverage for human consumption . ..." 12 N.Y.C.R.R. § 146-3.1(b). Mr. Taco NYC, where Plaintiffs worked, is a restaurant in lower Manhattan. Compl. ¶ 27. Accordingly, the spread-of-hours regulation applies to Defendants.
Pastrana worked shifts exceeding ten hours from approximately September 1, 2018, until October 6, 2018. Id. at ¶ 45. He worked from approximately 2:00 p.m. to 1:00 a.m. (11 hours) on Thursdays and 12:00 p.m. to 6:00 a.m. (18 hours) on Fridays and Saturdays. Id. Thus, Pastrana sufficiently pleaded entitlement to spread-of-hours pay for three days a week for five weeks and is entitled to an additional hour of pay at the minimum wage for each of those days. From August 27, 2018, until October 6, 2018, Hernandez worked from approximately 5:00 a.m. to 7:00 p.m. (14 hours) five days a week. Id. at ¶ 63. Thus, Hernandez sufficiently pleaded entitlement to spread-of-hours pay for five days a week for 7 weeks.
D. Equipment Costs
Plaintiffs claim Defendants violated the FLSA and NYLL by failing to reimburse Pastrana for expenses related to tools-of-the-trade. Compl. ¶ 130. Under the FLSA, "if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer's particular work," a violation occurs in any week "when the cost of such tools . . . cuts into the minimum or overtime wages required to be paid him under the Act." 29 C.F.R. § 531.35; see also 12 N.Y.C.R.R. § 146-2.7(c) ("If an employee must spend money to carry out duties assigned by his or her employer, those expenses must not bring the employee's wage below the required minimum wage.").
Plaintiffs claim Defendants directed Pastrana to purchase and maintain four aprons with his own funds. Compl. ¶ 55. He was employed as a cook, food preparer, dishwasher, etc., and has sufficiently pleaded the aprons were "specifically required for the performance of the employer's particular work". Compl. ¶ 37; 29 C.F.R. § 531.35. However, Plaintiffs have not established that these costs infringed on his wages so as to reduce them below the statutory minimum. See Guan Ming Lin v. Benihana Nat. Corp., 755 F.Supp.2d 504, 512 (S.D.N.Y.2010).
In certain weeks Pastrana's regular rate of pay, as previously calculated, was significantly above the minimum wage. Absent any evidence that the cost of the aprons brought his wages below the statutory minimum, he has not sufficiently pleaded that Defendants violated FLSA or NYLL. See de Jesus v. P&N Cuisine Inc., No. 20-cv-3619 (RA), 2021 WL 2380065, at *4 (S.D.N.Y. June 10, 2021) ("Plaintiffs' allegations are insufficient to establish liability under either statute because the Complaint does not. . . indicate whether these costs infringe[d] on their wages so as to reduce them below the minimum threshold.") (internal quotation marks and citation omitted).
E. Tipped Employees
Plaintiffs' complaint states Defendants knowingly and unlawfully retained $2,100 in tips owed to Hernandez in violation of NYLL. Compl. ¶¶ 135, 136. Defendants were not entitled to "demand or accept, directly or indirectly, any part of the gratuities, received by [Hernandez], or retain any part of a gratuity or of any charge purported to be a gratuity for [him]." NYLL § 196-d. Accordingly, the Defendants are liable for unlawfully deducting tips from Hernandez's wages. See Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08-cv-3725 (DC), 2010 WL 4159391, at *4 (S.D.N.Y. Sept. 30, 2010) (finding similarly situated plaintiffs to be "entitled to the return of the unlawful deductions made from their tips . . . .").
F. Wage Statement, Notice, and Record Keeping Requirements
The Wage Theft Prevention Act requires employers to provide annual wage notices to employees hired after April 9, 2011, and to provide each employee with accurate wage statements each time wages are paid. See NYLL. §§ 195(1)(a), 195(3). Section 195(1) requires an employer to provide employees a notice at the time of hiring, containing, among other things, "the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; [and] allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances . . . ." N.Y.L.L. § 195(1)(a). Section 195(3) requires that employers provide employees with certain wage statement information "with every payment of wages." N.Y.L.L. § 195(3). An employer's failure to comply with either section of the law makes them liable for damages for each instance that the violations occurred or continued to occur. See N.Y.L.L. § 198(l-b) (stating that damages for wage notice violations under § 195(1) accumulate at a rate of $50 per day, but not to exceed $5,000); § 198(l-d) (stating that damages for wage statement violations under § 195(3) accumulate at a rate of $50 per day, but may not exceed $5,000).
Plaintiffs sufficiently pleaded Defendants failed to comply with NYLL § 195(1)(a) and § 195(3). Compl. ¶¶ 53, 54, 73, 74, 124, 127. Plaintiffs nevertheless lack standing to maintain these claims. "Article III standing requires plaintiffs to show (1) an 'injury in fact,' (2) a 'causal connection' between that injury and the conduct at issue, and (3) a likelihood 'that the injury will be redressed by a favorable decision.'" Maddox v. Bank of NY. Mellon Tr. Co., N.A., 19 F.4th 58, 62 (2d Cir. 2021) (quoting Lui an v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). To demonstrate an injury in fact, a plaintiff "must show the invasion of a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or imminent, not conjectural or hypothetical." Id. (quoting Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)). While a so-called "informational injury" (i.e., failure to receive required information) can give rise to standing, see TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2214 (2021), the plaintiff must allege "downstream consequences" from failing to receive that information that show an interest in using the information "beyond bringing [this] lawsuit," Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022) (first quoting TransUnion, 141 S.Ct. at 2214, then Laufer v. Looper, 22 F.4th 871, 881 (10th Cir. 2022)).
Plaintiffs fail to allege an injury in fact sufficient to confer standing. First, Plaintiffs' claimed monetary harm lacks evidentiary support. Plaintiffs claim Defendants' failure to provide notice was done "willfully to disguise the actual number of hours Plainitffs worked, and to avoid paying Plaintiffs properly for their full hours worked." Compl. ¶ 94. Plaintiffs further allege Defendants engaged in this conduct to "minimiz[e] labor costs and deny[] employees compensation." Id. at ¶ 95. Plaintiffs have not demonstrated how their lack of notice resulted in an injury greater than Defendants' minimum wage, overtime, and spread-of-hours wage violations. Nor have Plaintiffs identified an informational injury with consequences beyond this lawsuit. Accordingly, Plaintiffs cannot recover under NYLL wage notice and statement provisions.
G. Timely Payment
Defendants violated NYLL § 191(d) by paying Plaintiffs "less frequently than semi-monthly[.]" Compl. ¶ 138. The Complaint and Plaintiffs' Motion for Default Judgment, describe their pay as "weekly." Id. at ¶¶ 47, 48, 65; ECF No. 26 ¶¶ 26, 27, 41. Plaintiffs, however, also state they were not paid any wages from August 27, 2018, until August 30. 2018, and September 15, 2018, until October 6, 2018. Compl. ¶¶ 49, 66; ECF No. 26 ¶¶ 28, 42. III. Damages
Because I find Plaintiffs have demonstrated that Defendants are liable for FLSA and NYLL violations, it is appropriate to award them damages as supported by the evidence submitted for this inquest. See ECF No. 28 Ex. A ("Damages"); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (damages following default must be established by the plaintiff). Determining the appropriate amount of damages "involves two tasks: determining the proper rule for calculating damages on such a claim, and assessing plaintiffs evidence supporting the damages to be determined under this rule." Santana v. Latino Express Rests., Inc., 198 F.Supp.3d 285, 291 (S.D.N.Y. 2016). A court need not hold an evidentiary hearing to determine damages, but must take the necessary steps to establish damages with reasonable certainty. Id
The Court does not recommend awarding Plaintiffs damages for Defendants violation of NYLL § 191(d) because that section "only involves the timeliness of wage payments, and does not appear to afford to plaintiffs any substantive entitlement to a particular wage." Myers v. Hertz Corp., 624 F.3d 537, 545 (2d Cir. 2010) (emphasis in original). Plaintiffs do not allege any injuries in relation to late payments, and if they had, those claims woud be "coextensive with, and derivative of their FLSA and NYLL claims. Id. at 546.
A. Backpay Under FLSA and NYLL
The FLSA and NYLL require an employer to pay at least the statutory set minimum wage for each hour an employee works in any workweek. 29 U.S.C. § 206(a); 12 N.Y.C.R.R. § 146-1.1(a). Plaintiffs sufficiently pleaded that Defendants violated the minimum wage and overtime provisions of both the FLSA and NYLL, but they are entitled to recovery under only one statute. See Hernandez v. Jrpac Inc., No. 14-cv-4176 (PAE), 2016 WL 3248493, at *31 (S.D.N.Y.June 9, 2016) ("Plaintiffs may not receive a double recovery of back wages under both the FLSA and NYLL.") (cleaned up).
Under New York and federal law, a court has discretion to award damages under whichever statute offers the greatest amount of relief. Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498 (S.D.N.Y.2017), affd, 752 Fed.Appx. 33 (2d Cir. 2018); see also 29 U.S.C. § 218(a).
Because New York's minimum wage exceeds the federal rate, Plaintiffs' damage calculations will be governed by NYLL provisions. See Hernandez, 2016 WL 3248493, at *31 (awarding plaintiffs damages under NYLL "because of the higher minimum" and acknowledging that those damages "will subsume their award under the FLSA . . . .").
Both FLSA and NYLL require employers to pay their employees a premium (150 percent of the employee's regular rate of pay) for hours worked above 40 hours per week. See 29 U.S.C. § 207(a)(1); 12NY.C.R.R. § 142-2.2.
1. Plaintiff Pastrana's Unpaid Minimum and Overtime Wages
Pastrana is not entitled to backpay from September 1, 2018, to September 14, 2018, because during that period he received a regular rate of pay above the statutory minimum in New York. See Table 1. He is, however, entitled to backpay for August 27, 2018, to August 30, 2018, and September 15, 2018, to October 6, 2018, when he was not paid at all. Pastrana is entitled to $1,824.00 in unpaid minimum wages for that period.
Table 1: Minimum Wage
Pay Period
Regular Hours Worked Per Week
Applicable Minimum Wage
Actual Weekly Salary
Regular Rate Per Hour
Legal Weekly Salary
Weekly Underpay (Legal Salary Minus Actual Salary)
Total Underpay (Weekly Underpay Multiplied by Number of Weeks)
8/27/201-8/30/2018 (4 Days)
32
$12.00
$0.00
$0.00
$384.00
$384.00
$384.00
9/1/2018-9/7/2018 (1 Week)
77
$12.00
$800.00
$20.00
$480.00
n/a
n/a
9/8/2018-9/14/2018 (1 Week)
77
$12.00
$720.00
$18.00
$480.00
n/a
n/a
9/15/201-10/6/2018 (3 Weeks)
77
$12.00
$0.00
$0.00
$480.00
$480.00
$1,440.00
Total Owed for Unpaid Minimum Wages: $1,824.00
Pay Period (Number of Weeks). See Compl. ¶¶39, 47-49. Regular Hours Worked Per Week. Id. at ¶¶ 44-45. Applicable Minimum Wage. See 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(b). Weekly Salary. Compl. ¶¶ 47, 48.
Pastrana worked in excess of 40 hours per week from approximately September 1, 2018, until October 6, 2018, when he typically worked an additional 37 hours of overtime per week. See Table 2. Pastrana is entitled to $4,107.00 in unpaid overtime wages for that period.
Pay Period
Overtime
hours
Worked Per
Week
Applicable
Minimum
Wage
Regular Rate Per hour
Overtime Rate
(Regular Rate or
Minimum Wage
xl.5)
Weekly Underpay
(Overtime Rate Multiplied
by Overtime Hours)
Total Underpay (Weekly Underpay
Multiplied by Number of Weeks)
9/1/2018-9/7/2018 (1 Week)
37
$12.00
$20.00
$30.00
$1,110.00
$1,110.00
9/8/2018-9/14/2018 (1 Week)
37
$12.00
$18.00
$27.00
$999.00
$999.00
9/15/2018
10/6/2018 (3
Weeks)
37
$12.00
n/a
$18.00
$666.00
$1,998.00
Total Owed for Unpaid Overtime Wages: $4,107.00
Pay Period (Number of Weeks). See Compl. ¶¶ 39, 47-49. Applicable Minimum Wage. See 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(b).
Pastrana sufficiently pleaded that Defendants violated federal and state wage provisions by failing to pay him the statutory minimum from August 27, 2019, to August 30, 2018, and from September 15, 2018, to October 6, 2018. He also sufficiently pleaded that Defendants violated federal and state overtime provisions from September 1, 2018, to October 6, 2018. Defendants therefore are required to pay Pastrana a total of $5,931.00 in backpay and overtime wages.
2. Plaintiff Hernandez's Unpaid Minimum and Overtime Wages
Hernandez is entitled to backpay for unpaid minimum wages from August 27, 2018, to September 10, 2018. See Table 3. He is also entitled to backpay for the weeks between September 11, 2018, and October 6, 2018, when he received no wages. In total, Hernandez is entitled to $2,480 in unpaid minimum wages.
Pay Period
Regular
Hours
Worked Per
Week
Applicable
Minimum
Wage
Actual
Weekly
Salary
Regular
Rate Per
Hour
Legal Weekly Salary
Weekly
Underpay (Legal
Salary Minus
Actual Salary)
Total Underpay
(Weekly
Underpay
Multiplied by
Number of
Weeks)
8/27/2018
9/10/2018 (2
Weeks)
70
$12.00
$200.00
$5.00
$480.00
$280.00
$560.00
9/11/2018-10/6/2018 (4 Weeks)
70
$12.00
$0.00
$0.00
$480.00
$480.00
$1,920.00
Total Owed for Unpaid Minimum Wages: $2,480.0C
Pay Period (Number of Weeks). See Compl. ¶¶ 64, 66. Regular Hours Worked Per Week. Id. at ¶ 63. Applicable Minimum Wage. See 12 N.Y.C.R.R. § 146-1.2(a) (1) (i) (b). Weekly Salary. Compl. ¶ 65.
Hernandez worked in excess of 40 hours per week from approximately August 27, 2018, until October 6, 2018, when he typically worked an additional 30 hours of overtime per week. See Table 4. In total, Hernandez is entitled to $3,240 in unpaid overtime wages.
Pay Period
Overtime
Hours
Worked Per
Week
Applicable
Minimum
Wage
Regular
Rate Per
Hour
Overtime Rate
(Regular Rate or
Minimum Wage x
1.5)
Weekly Underpay (Overtime
Rate Multiplied by Overtime
Hours)
Total Underpay (Weekly Underpay
Multiplied by Number of Weeks)
8/27/2018-9/10/2018 (2 Weeks)
30
$12.00
$5.00
$18.00
$540.00
$1,080.00
9/11/2018-10/6/2018 (4 Weeks)
30
$12.00
n/a
$18.00
$540.00
$2,160.00
Total Owed for Unpaid Overtime Wages: $3,240.00
Pay Period (Number of Weeks). See Compl. ¶¶64, 66 Applicable Minimum Wage. See 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(b).
Hernandez sufficiently pleaded that Defendants violated federal and state minimum wage and overtime provisions by failing to pay him properly from August 27, 2019, to October 6, 2018. Defendants therefore are required to pay Hernandez a total of $4,070 in backpay and overtime wages.
B. Spread-of-hours Pay
Under the NYLL, "on each day on which [an employee's] spread of hours exceeds 10, [the] employee shall receive one additional hour of pay at the basic minimum hourly rate." 12 N.Y.C.R.R. § 146-1.6(a). The additional hour of pay is not included in the regular rate of pay when calculating overtime wages because it "is not a payment for time worked or work performed . . . ." 12 N.Y.C.R.R. § 146-1.6(c).
Pastrana established he worked shifts exceeding 10 hours for three days a week for five weeks. Hernandez established he worked shifts exceeding 10 hours for five days a week for six weeks. Accordingly, I recommend the Court award them spread-of-hours pay. From January 1, 2018, to December 31, 2018, the minimum wage in New York was $12.00 per hour. Therefore, Plaintiff Pastrana should be awarded $180.00 in spread-of-hours pay (3 hours x 5 weeks x $12.00) and Plaintiff Hernandez should be awarded $360.00 (5 hours x 6 weeks x $12.00).
C. Recovery of Unlawfully Deducted Tips
As previously discussed, Defendants are liable for unlawfully deducting tips from Plaintiff Hernandez's wages. Defendants are also liable for liquidated damages equal to the amount of the unlawfully withheld tips. See 29 U.S.C. § 216(b) ("[An employer] shall be liable to the employee ... in the amount of. . . all such tips unlawfully kept. . . and an additional equal amount as liquidated damages.").The Court recommends granting Plaintiffs' request of $2,100 in damages for unlawful tip withholding, ECF No. 26 ¶ 95.
D. Liquidated Damages
Under the FLSA and NYLL, a plaintiff who is owed minimum or overtime wages may recover an "additional equal amount as liquidated damages." 29 U.S.C. § 216(b); NYLL § 198(l-a). Liquidated damages may also include unlawfully retained tips as well as spread of hours pay. See Schalaudek v. Chateau 20th St. LLC, No. 16-cv-11 (WHP)(JLC), 2017 WL 729544, at *10 (Feb. 24, 2017) (awarding liquidated damages in an amount equal to unlawfully retained tips), adopted, 2017 WL 1968677 (S.D.N.Y. May 11, 2017); Wicaksono v. XYZ 48 Corp., No. 10-cv 3635 (LAK)(JCF), 2011 WL 2022644, at *7 (May 2, 2011) (same), adopted, 2011 WL 2038973 (S.D.N.Y. May 24, 2011); Reyes v. Cafe Cousina Rest. Inc., No. 18-cv-1873 (PAE)(DF), 2019 WL 5722475, at *6 (Aug. 27, 2019) (awarding liquidated damages for unpaid spread-of-hours pay), adopted, 2019 WL 5722109 (S.D.N.Y. Oct. 7, 2019).
The court may reduce or deny liquidated damages if the employer can show that "the act or omission giving rise to [the FLSA] action was in good faith and that he had reasonable grounds for believing it was not a violation of [FLSA]." 29 U.S.C. § 260. Similarly, under the NYLL, an employee is entitled to liquidated damages equal to the amount of the overtime pay "unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law." NYLL § 198(1-a).
To establish "good faith" under the FLSA, an employer must show that it took "active steps to ascertain the dictates of the FLSA and . . . comply with them." Barfield v. New York City Health & Hosp. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)). "NYLL's willfulness standard does not appreciably differ from the FLSA's willfulness standard." Kuebel v. Black & Decker Inc., 643 F.3d 352, 366 (2d. Cir. 2011) (internal quotation marks and citation omitted). Defendants defaulted, and therefore have made no showing of good faith to merit reducing or denying liquidated damages. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-cv-10234 (JGK)(JLC), 2016 WL 4704917, at *15 (Sept. 8, 2016), adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016) ("Courts deem defendants' actions willful where they have defaulted . . . consequently, such defaulting defendants will have obviously made no showing of good faith.") (cleaned up).
Plaintiffs may not, however, recover "duplicative liquidated damages for the same course of conduct" under both the FLSA and NYLL. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018). Accordingly, the Court recommends awarding Plaintiffs liquidated damages under NYLL only. Pastrana is entitled to an additional $6,111.00 in liquidated damages (equal to $1,824.00 in unpaid minimum wages, $4,107.00 in unpaid overtime wages, and $180.00 in unpaid spread-of-hours pay) and Hernandez is entitled to $8,180.00 (equal to $2,480.00 in unpaid minimum wages, $3,240.00 in unpaid overtime wages, $360.00 in unpaid spread-of-hours pay, and $2,100 in unlawfully withheld tips).
E. Pre-Judgment and Post-Judgment Interest
New York law provides for an award of pre-judgment interest in addition to liquidated damages. NYLL § 198(1-a); Underwood v. TAFSC Hous. Dev. Fund Corp., No. 18-cv-6664 (JPO), 2019 WL 5485211, at *5 (S.D.N.Y.Oct. 25, 2019) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999)). Pre-judgment interest is available only on actual damages, not liquidated damages. Id
Under New York law pre-judgment interest is calculated at nine percent per year. NYLL § 198(1-a); N.Y. CPLR § 5004. "Where damages are incurred at various times interest shall be computed upon all of the damages from a single reasonable intermediate date." Underwood, 2019 WL 5485211, at *5 (cleaned up). The "reasonable intermediate date" is often the midpoint of a plaintiff s employment. Id
For purposes of calculating pre-judgment interest, the Court selects September 15, 2018 (the midpoint between August 27, 2018, and Plaintiffs' end date of October 6, 2018) as a reasonable intermediate date. Accordingly, I recommend that Plaintiffs be granted prejudgment interest on their total actual damages ($6,111 to Plaintiff Pastrana and $8,180 to Plaintiff Hernandez) from September 15, 2018, at the rate of nine percent per year, until the date of entry of judgment.
Plaintiffs also ask to be awarded post-judgement interest if applicable. Per 28 U.S.C. § 1961(a), "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court." Under this statute, an award of post-judgment interest is mandatory in any civil case where monetary damages have been awarded. Fermin, 93 F.Supp.3d 19, 53; see, e.g. Begum v. Ariba Disc, Inc., No. 12-cv-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case).
I therefore recommend that Plaintiffs be awarded post-judgment interest, to be calculated at the federal rate from the date the Clerk of this Court enters judgment until the date the Defendants pay.
Attorney's Fees, Costs, and Remedies
A prevailing plaintiff, under both federal and state statutes, is entitled to reasonable attorney's fees and costs. 29 U.S.C. § 216(b); NYLL § 198(4). Courts determine the "presumptively reasonable fee" for an attorney's services by looking to "what a reasonable, paying client would be willing to pay .... who wishes to pay the least amount necessary to litigate the case effectively." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 184 (2d Cir. 2008).
The "presumptively reasonable fee" is the product of a reasonable hourly rate and the reasonable number of hours required by the case. See Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). Requested fees must be supported "by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done." NY. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983).
Plaintiffs request a total of $4,582.50 in attorneys' fees for 17.30 hours of attorney and paralegal work, as well as $565.00 in costs. ECF No. 28 Ex. B. Attorney Michael Faillace was the managing member of Michael Faillace & Associates, P.C. and has practiced law since 1983.ECF No. 26 ¶ 100(i). He was in-house employment counsel for IBM for 17 years, has taught employment law as an adjunct professor at Fordham University School of Law and at Seton Hall University School of Law, and is the author of a disability law desk-book. Id. He requests an hourly rate of $450 for 9.7 hours of work. See ECF No. 28 Ex. B.
Mr. Faillace was suspended from the Southern District of New York for a two-year period in November 2021, upon a finding of violations of the New York Rules of Professional Conduct. See In re Michael Faillace, M-2-238 (Nov. 8, 2021). This does not preclude Mr. Faillace from being compensated for work performed before the suspension date. Id. at 17. Upon information and belief, however, the law firm of Michael Faillace & Associates closed at or around the time of Mr. Faillace's suspension.
Senior Associate Shawn Clark graduated from New York University School of Law in 2010 and was admitted to practice in New York. ECF No. 26 ¶ 100(ii). He worked as a senior associate at Michael Faillace & Associates from August 2018 until that firm's closure. While attending law school he was an articles editor for the New York University Journal of Legislation and Public Policy, and interned with various government offices. Id. After law school, Mr. Clark was awarded a NYPD Law Graduate Fellowship. Mr. Clark requests an hourly rate of $375 for 1.1 hours of work performed. See ECF No. 28 Ex. B.
Associate Daniel Tannenbaum graduated from Hofstra Law School in 2008 and was admitted to practice in New York. ECF No. 26 ¶ 100(iii). Mr. Tannenbaum worked as an associate at Michael Faillace & Associates starting in March 2019. Before then, Mr. Tannenbaum practiced employment law and commercial litigation at a number of law firms. Mr. Tannenbaum requests an hourly rate of $350 for 0.30 hours of work. See ECF No. 28 Ex. B.
F. Reasonable Rates
In determining reasonable fees for a particular case, courts rely on reasonable hourly rates prevailing in the same district for similar services provided by attorneys with comparable skill and experience. See Arbor Hill, 522 F.3d at 184; Sub-Zero, Inc. v. Sub Zero NY Refrigeration & Appliances Servs., Inc., No. 13-cv-02548 (KMW)(JLC), 2014 WL 1303434, at *8 (S.D.N.Y. Apr. 1, 2014) ("It is the fee movant's burden to establish the prevailing market rate.").
"Courts in this District have recently determined that a reasonable rate for senior attorneys handling wage-and-hour cases, in this market, typically ranges from $300 to $400 per hour." Wan v. YWL USA Inc., No. 18-cv-10334 (CS), 2021 WL 1905036, at *5 (S.D.N.Y. May 12, 2021) (cleaned up). But see, e.g., Ashkinazi v. Sapir, No. 02-cv-0002 (RCC)(MHD), 2005 WL 1123732, at *3 (S.D.N.Y.May 10, 2005) (awarding $425 per hour to a partner in a small firm specializing in employment law, with 26 years of experience). Higher rates may, however, be awarded where they are "unopposed and awarded in the context of a default judgment." Wan, 2021 WL 1905036 at *6.
Given the passage of time and rising rates, the Court would usually find Mr. Faillace's requested rate of $450 to be reasonable. Because of the inefficiencies and errors detailed below, however, the Court "joins many others in the circuit in finding Mr. Faillace's hourly rate excessive." Gervacio v. ARJ Laundry Servs. Inc., No. 17-cv-9632 (AJN), 2019 WL 330631, at *2 (S.D.N.Y. Jan. 25, 2019) (citing cases). I recommend that his hourly rate be reduced to $400.
An appropriate associate rate depends upon their level of experience. Thor 725 8th Ave. LLC v. Goonetilleke, No. 14-cv-04968 (PAE), 2015 WL 8784211, at *11 (S.D.N.Y. Dec. 15,2015); see Rosendo v. Everbrighten Inc., No. 13-cv-7256 (JGK)(FM), 2015 WL 1600057, at *9 (Apr. 7, 2015), adopted, 2015 WL 4557147 (S.D.N.Y. July 28, 2015) (finding that the reasonable hourly rate for a senior attorney with 10 years of experience is $300, and for an associate with three years of experience is $225); Hernandez, 2017 WL 6311868, at *2 (finding that a reasonable hourly rate for associates with three to four years of experience is $250).
The Court finds the requested hourly rates for both Mr. Clark and Mr. Tannenbaum to be reasonable. Mr. Clark graduated from New York University School of Law in 2010 where he was a Dean's Scholar and editor of the New York University Journal of Legislation and Public Policy. ECF No. 26 ¶ 100(ii). Mr. Clark's experience before joining Michael Faillace & Associates P.C. includes interning at the EDNY U.S. Attorney's Office as well as the New York County District Attorney's Office, and working as a Fellow for the Legal Bureau of NYPD. Id. Mr. Tannebaum graduated from Hofstra Law School in 2008 and was admitted to the New York and New Jersey Bars. ECF No. 26 ¶ 100(iii). He was also admitted in the United States District Courts for the Southern and Eastern District of New York. Id. Before joining the firm in March 2019, Mr. Tannebaum had experience in employment law and commercial litigation at a number of other firms. Id; See Wan, 2021 WL 1905036, at *5 ("As for associates, rates in excess of $225.00 per hour are reserved for FLSA litigators with more than three years' experience . . . .") (internal quotation marks omitted). Accordingly, Mr. Clark's $375 hourly rate and Mr. Tannebaum's $350 hourly rate, are accepted.
Finally, Plaintiffs request that work billed by paralegals on the case be billed at a rate of $100 per hour. In recent FLSA cases in this District, courts have approved this hourly rate as reasonable for paralegal services. See Vargas Garcia v. Park, No. 18-cv-10650 (KNF), 2019 WL 6117596, at *5 (S.D.N.Y. Nov. 18, 2019); Rosales v. Gerasimos Enters, et al, No. 16-cv-2278 (RA), 2018 WL 286105, at *2 (S.D.N.Y.Jan. 3, 2018). The Court finds that $100 per hour is an appropriate rate for paralegal work on this case.
G. Reasonable Hours
Counsel seeks fees for 17.30 hours of attorney and paralegal work. See ECF No. 28 Ex. B. There are, however, numerous signs to make the Court doubt the accuracy of their records. First, Plaintiffs seek two hours of Michael Faillace's time to draft the complaint and 1.70 hours of his time to amend it. Id. Setting aside whether it is credible that a managing partner was the actual drafter of this complaint, no client would reasonably pay his rate for drafting and amending a boilerplate wage-and-hour complaint-a rate that is certainly not "the least amount necessary to litigate the case effectively." Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 184. This irregularity raises concerns regarding the overall accuracy of counsel's records.
Additionally, even though Mr. Faillace and the paralegal both allegedly reviewed the default motion and damages calculations (billing a total of 9.2 hours for review of the damages, drafting Plaintiffs' declarations about damages, etc.), the calculations contained a number of errors and ultimately incorrectly calculated damages available to Plaintiffs. See ECF No. 28 Ex. A. For example, when calculating the total unpaid minimum wages and overtime Plaintiff Hernandez was owed for the time period between August 27 and September 10, Plaintiffs took the weekly underpayment amount and divided, rather than multipled, by the number of weeks worked. Id. A similar error appears in the calculations for Plaintiff Pastrana for the time period between August 27 and August 30. Id. Plaintiffs also failed to calculcate liquidated damages for the $2100 in unlawfully retained tips owed to Plaintiff Hernandez. Id Given the errors and inconsistencies in the billing record, the Court has reservations about awarding attorneys' fees. See, e.g., Maria, et al. v. Rouge Tomate Chelsea, LLC, et al., No. 18-cv-09826 (VSB)(GWG), WL 6049893, at *8 (Oct. 14, 2020) (declining to award Mr. Faillace's firm's requested fees for failing to provide contemporaneous records), adopted, 2021 WL 734958, at *2 (S.D.N.Y. Feb. 25, 2021) (adopting recommendation over Mr. Faillace's objections to not being awarded fees). Because the Defendants did not contest Plaintiffs' submission, however, I recommend that the Court impose an across-the-board reduction of counsel's requested hours by 20 percent in equal proportions, resulting in 4.96 paralegal hours at $100 hourly, Mr. Clark's 0.88 hours at $375 hourly, Mr. Tannebaum's 0.24 hours at $350 hourly, and 7.76 partner hours at $400 hourly, for a total attorneys' fees award of $4,014.
H. Costs and Remedies
Plaintiffs seek $565 in costs for filing and service fees. The Court finds these costs to be reasonable and comparable to other amounts awarded upon default judgment. See Romita v. Anchor Tank Lines Corp., No. 09-cv-09997 (DLC), 2011 WL 1641981, at *2 (S.D.N.Y.Apr. 29, 2011) (awarding $504 in court costs for filing and process server fees); Int'l Ass'n of Heat & Frost Insulators & Asbestos Workers Loc. Union No. 12A v. Trade Winds Envtl., No. 09-cv-01771 (RJH)(JLC), 2010 WL 8020302, at *6 (Dec. 23, 2010) (awarding $701.75 in court costs for filing and process server fees) adopted, 2011 WL 5843757 (S.D.N.Y.Nov. 18, 2011).
Finally, Plaintiffs request that, should any amounts of the recommended judgment remain unpaid upon the expiration of 90 days following the date of judgment, or 90 days after expiration of the time to appeal if no appeal is then pending, whichever is later, the total amount of the judgment shall automatically be increased by 15 percent. See NYLL § 198(4). I recommend Plaintiffs' request be granted.
CONCLUSION
I recommend that the Court find Defendants liable for $33,161.00 plus applicable interest, as follows:
(1) $6,111.00 in wage and hour damages to Plaintiff Pastrana, plus nine percent prejudgment simple interest, calculated from September 15, 2018, to the date of judgment;
(2) $8,180.00 in wage, hour, and unlawful tip withholding damages to Plaintiff Hernandez, plus nine percent prejudgment simple interest, calculated from September 15, 2018, to the date of judgment
(3) $6,111.00 in liquidated damages to Plaintiff Pastrana;
(4) $8,180.00 in liquidated damages to Plaintiff Hernandez;
(5) $4,014.00 in attorneys' fees; and
(6) $565.00 in costs.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).