Opinion
19-CV-10053 (VSB) (BCM)
06-28-2024
YORMAN SOTO, individually and on behalf of all others similarly situated, Plaintiffs, v. CRISMELI DELI GROCERY INC., et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. VERNON S. BRODERICK .
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
In this action, filed pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and N.Y. Labor Law (NYLL) §§ 190 et seq. and 650 et seq., plaintiff Yorman Soto seeks damages from defendants Crismeli Deli Grocery Inc. (Crismeli Grocery), Decatur Deli Food Corp. (Decatur Deli), Jose Dolores Garcia, and Reymundo Cosme for unpaid wages, liquidated damages, statutory penalties, prejudgment interest, attorneys' fees, and costs. See Compl. (Dkt. 1) ¶¶ 1, 510. Plaintiff alleges that he was employed by defendants from February 2017 through October 2019, at two delis that they owned and operated in the Bronx, but was not properly paid. Id. ¶¶ 14. On December 10, 2020 - after defendants failed to answer the Complaint or appear at a showcause hearing - the Honorable Vernon S. Broderick, United States District Judge, issued an order granting plaintiff's motion for entry of a default judgment against all defendants, and referred the matter to me for an inquest on damages. (Dkts. 34, 35.)
For the reasons that follow, I recommend that plaintiff be awarded damages in the aggregate amount of $162,653.44, comprising: (a) $73,517.22 for unpaid minimum and overtime wages; (b) $73,517.22 in liquidated damages for the wage violations; (c) $7,195.50 for unpaid spread-of-hours pay; (d) $7,195.50 in liquidated damages for the spread-of-hours violations; (e) $828.00 in attorneys' fees; and (f) $400.00 in costs, together with prejudgment interest in the amount of $19.90 per day from June 10, 2018, to the date of entry of final judgment.
I. BACKGROUND
A. Factual Allegations
The individual defendants, Garcia and Cosme, acting through the corporate defendants, Crismeli Grocery and Decatur Deli, owned, operated, and controlled two eponymous delis in the Bronx. Compl. ¶¶ 2-3, 17, 22. Plaintiff was employed as a "general assistant" at the delis from approximately February 2017 until on or about October 18, 2019. Id. ¶¶ 1, 4, 15. Garcia and Cosme were owners, operators, and/or agents of the corporate defendants, id. ¶¶ 20-21, and possessed "operational control" over them. Id. ¶ 23. Additionally, the individual defendants determined the plaintiff's wages and compensation, established employee schedules, maintained employee records, and had the authority to hire and fire employees. Id. ¶¶ 20-21.
Throughout plaintiff's employment, he was paid a fixed salary of $450 per week, in cash. Compl. ¶¶ 42-43, 57. However, he "regularly worked in excess of 40 hours per week," id. ¶ 37, "without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked." Id. ¶ 5. Ordinarily, plaintiff worked from "approximately 6:00 a.m. until on or about 5:00 p.m., six days a week (typically 66 hours per week)," at both delis. Id. ¶¶ 38-39. "[O]n four occasions within his employment, [plaintiff] worked from approximately 6:00 a.m. until on or about 5:00 p.m., seven days a week (typically 77 hours per week)," id. ¶ 40, but "was not paid for his hours worked on the seventh day." Id. ¶ 41. Nor was he paid anything extra when he was "required to stay later or work a longer day than his usual schedule." Id. ¶¶ 45. "For approximately one week," defendants did not pay him any wages at all. Id. ¶ 44. Plaintiff never received any breaks or meal periods "of any kind." Id. ¶ 47.
Neither plaintiff nor defendants kept track of plaintiff's time, Compl. ¶ 48, and defendants never gave him any notifications regarding his wages. Id. ¶ 49. Specifically, defendants never gave
him "an accurate statement of wages, as required by NYLL [§] 195(3)," id. ¶¶ 50, 62, or a notice, in English and in Spanish (Soto's primary language), "of his rate of pay, employer's regular pay day, and such other information as required by NYLL § 195(1)." Id. ¶ 51, 63.
B. Procedural History
Plaintiff filed this action on October 30, 2019, alleging seven claims on behalf of himself and others similarly situated: (1) failure to pay the minimum wage in violation of the FLSA, 29 U.S.C. § 206(a), see Compl. ¶¶ 67-73; (2) failure to pay overtime compensation, at the rate of one and one-half times the regular rate of pay for each hour worked in excess of forty hours per week, in violation of the FLSA, 29 U.S.C. § 207(a)(1), see id. ¶¶ 74-77; (3) failure to pay the minimum wage in violation of NYLL § 652(1), see id. ¶¶ 78-82; (4) failure to pay overtime compensation, at the rate of one and one-half times the regular rate of pay for each hour worked in excess of forty hours per week, in violation of NYLL § 190 et seq., and "supporting regulations," see id. ¶¶ 8386; (5) failure to pay one additional hour's pay at the basic minimum wage rate for each day plaintiff's spread of hours exceeded ten hours, in violation of NYLL §§ 650 et seq. and 12 N.Y.C.R.R. (NYCRR) §§ 146-1.6,
In his Complaint, plaintiff relies on NYCRR Part 146, which covers workers in the "hospitality industry, including "restaurants." 12 NYCRR § 146-3.1(a). However, plaintiff alleges only that he was a "general assistant" at defendants' "delis," Compl. ¶ 4, which he does not otherwise describe. He does not allege that the delis served prepared food, much less that he had any responsibility for food preparation or service. Consequently, his employment was governed by NYCRR Part 142, which covers miscellaneous industries and occupations. See 12 NYCRR § 146-3.1(b) (defining "restaurant" as "any eating or drinking place that prepares and offers food or beverage for human consumption"); cf. Ramos v. Guaba Deli Grocery Corp., 2021 WL 5563714, at *9 n.9 (S.D.N.Y. Nov. 29, 2021) (deli workers who specifically alleged that their responsibilities included food preparation were "hospitality industry employees").
4
Defendants Crismeli Grocery and Decatur Deli were served with process on November 4, 2019, in accordance with Fed.R.Civ.P. 4(h), N.Y.C.P.L.R. (CPLR) § 311(a)(1), and N.Y. Bus. Corp. Law § 306(b)(1), by delivery of the summons and Complaint to an agent of the Secretary of State in Albany, New York. (Dkts. 12, 13.) Defendant Garcia was served with process on November 18, 2019, in accordance with Fed.R.Civ.P. 4(e)(2)(A) and CPLR § 308(1), by personal delivery of the summons and Complaint to him at the Crismeli Grocery, located at 365 East 193rd Street, Bronx, New York, 10458. (Dkt. 14.) Defendant Cosme was served with process on November 11, 2019, in accordance with Fed R. Civ. P. 4(e)(2)(A) and CPLR § 308(1), by personal delivery of the summons and Complaint to him at the Decatur Deli, located at 297 Brook Avenue, Bronx, New York, 10454. (Dkt. 15.)
On March 3, 2020 - no defendants having entered an appearance, and plaintiff having taken no action to prosecute the case - Judge Broderick directed plaintiff to seek a default judgment. (Dkt. 16.) On March 4, 2020, plaintiff filed proposed certificates of default as to each defendant (Dkts. 17-20), with a supporting affidavit (Dkt. 21). That same day, the Clerk of Court entered the certificates of default as to each defendant. (Dkts. 22-25.)
On June 1, 2020, plaintiff filed a proposed order to show cause (OSC) (Dkt. 28) supported, in part, by the Declaration of Michael Faillace (Faillace Decl.) (Dkt. 29), which in turn attached the Complaint (Dkt. 29-1); the affidavits of service and certificates of default as to all defendants (Dkts. 29-2 through 29-9); the Declaration of Yorman Soto (Pl. Decl.) (Dkt. 29-10); a chart showing plaintiff's damage calculations (Chart) (Dkt. 29-11); counsel's billing records (Billing Records) (Dkt. 29-12); and a proposed default judgment (Dkt. 29-13; see also Dkt. 30). Separately, plaintiff filed a Statement of Damages (Damages St.) (Dkt. 31), reattaching his calculations and
5 seeking an award in the aggregate amount of $193,440.79, as of May 28, 2020, plus interest at 9% on and after that date.
On November 11, 2023, Judge Broderick issued the OSC, ordering the parties to appear for a telephonic show-cause hearing on December 10, 2020. (Dkt. 32.) On November 18, 2020, plaintiff served the OSC and supporting materials on all four defendants by Priority 1-Day Mail, addressed to the delis on East 193d Street and Brook Avenue, respectively. (Dkt. 33.) After the December 10, 2020 hearing - defendants having failed to appear - Judge Broderick granted the default motion as to all defendants and referred this action to me for an inquest on damages. (Dkts. 34, 35.)
On December 15, 2020, I issued a Scheduling Order for Damages Inquest (Sched. Order) (Dkt. 36) directing plaintiff to file his proposed findings of fact and conclusions of law by January 15, 2021. Sched. Order ¶ 1. I further directed plaintiff to serve his proposed findings, any supporting materials, and the Scheduling Order itself on the defaulted defendants by mail, id. ¶ 7, and gave defendants until February 5, 2021, to serve their responses, if any. Id. ¶ 8.
Plaintiff submitted his proposed findings of fact and conclusions of law (Prop. Findings) (Dkt. 37) on January 15, 2021 (Dkt. 37), along with additional copies of the exhibits previously submitted as attachments to the Faillace Declaration. However, plaintiff did not file any affidavit of service as to the proposed findings, and defendants did not file any response.
II. ANALYSIS
A. Legal Standards
1. Determining Liability
Following a default, all well-pleaded factual allegations in the complaint as to liability are "deemed admitted." S.E.C. v. Razmilovic, 738 F.3d 14, 19 (2d Cir.), as amended, (Nov. 26, 2013);
6 accord City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004). However, a default "only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants." Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015) (summary order). The court must therefore determine "whether the allegations in a complaint establish the defendants' liability as a matter of law." Id. (citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)). If the well-pleaded factual allegations establish the defaulting party's liability, the only remaining issue is "whether [p]laintiff has provided adequate support for [the requested] relief[.]" 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)).
Conversely, if the well-pleaded factual allegations in the complaint fail to state a claim upon which relief can be granted, no damages can be awarded, even if the post-default inquest submissions supply the missing information. See United States ex rel. Nat'l Dev. & Constr. Corp. v. U.S. Envtl. Universal Servs., Inc., 2014 WL 4652712, at *4 (S.D.N.Y. Sept. 2, 2014) ("'[i]t is the . . . [c]omplaint, not the inquest submissions, that establishes defendants' liability") (quoting Gutman v. Klein, 2010 WL 4975593, at *10 (E.D.N.Y. Aug. 19, 2010)) (alteration in original); J & J Sports Prods., Inc. v. Abdelraouf, 2019 WL 457719, at *2 (E.D.N.Y. Feb. 5, 2019) ("It is the moving party's burden to demonstrate that it is entitled to recovery based on the factual allegations pleaded in the complaint.").
2. Determining Damages
Although the Court must accept all well-pleaded facts as true when determining liability, it need not - and indeed cannot - rely on the allegations in plaintiffs pleading to establish his damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp.,
7 973 F.2d 155, 158 (2d Cir. 1992). Rather, plaintiff is required to substantiate his claimed damages with "admissible, authenticated evidence." McLaughlin v. Barron, 2018 WL 1872535, at *2 (S.D.N.Y. Jan. 24, 2018), report and recommendation adopted, 2018 WL 993627 (S.D.N.Y. Feb. 20, 2018) (citation omitted); see also House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order) ("[T]here must be a basis upon which the court may establish damages with reasonable certainty.").
Where, as here, the defendants have failed to produce any employment records, the court may credit the plaintiff's "recollections regarding [his] hours and pay in conducting its inquest." Coley v. Vannguard Urb. Improvement Ass'n, Inc., 2018 WL 1513628, at *7 (E.D.N.Y.), as amended, (Mar. 29, 2018). However, "the Court must ensure that Plaintiffs' approximations and estimates are reasonable and appropriate." Id.; see also Jemine v. Dennis, 901 F.Supp.2d 365, 378 (E.D.N.Y. 2012) (finding that plaintiffs' method of estimating hours worked by averaging the hours listed in the available payroll records with the hours recalled and described in plaintiffs' declarations was reasonable where defendants failed to maintain adequate records).
B. Jurisdiction and Venue
I am satisfied that this Court has subject matter jurisdiction over plaintiff's claims. Because plaintiff sues under a federal statute - the FLSA - subject matter jurisdiction is properly based on 28 U.S.C. § 1331. The Court may exercise supplemental jurisdiction over his state law claims, which arise out of the same facts and circumstances, pursuant to 28 U.S.C. § 1367.
I am also satisfied as to personal jurisdiction over the defendants, which is "a necessary prerequisite to entry of a default judgment." Reilly v. Plot Commerce, 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016) (quoting Sheldon v. Plot Commerce, 2016 WL 5107072, at *6 (E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016)).
8 Defendants were properly served with process, but failed to answer or otherwise respond, thereby waiving any argument regarding the Court's personal jurisdiction over them. See Fed.R.Civ.P. 12(h)(1)(B); Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 62 (2d Cir. 1999). Similarly, defendants have waived any objections to venue, see Fed.R.Civ.P. 12(b)(3), 12(h)(1)(B), which in any event is appropriate because the corporate defendants reside in this District, see Compl. ¶¶ 17-19, and a substantial part of the acts or omissions giving rise to plaintiff's claims occurred in this District. See 28 U.S.C. § 1391(b)(1), (b)(2), (c)(2).
C. Statute of Limitations
The statute of limitations under the FLSA is two years, see 29 U.S.C. § 255(a), unless the violations were "willful," in which case the limitations period increases to three years. Id.; see also McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988). A violation is willful if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited[.]" McLaughlin, 486 U.S. at 133. Here, plaintiff alleges, among other things, that defendants' practices included "willfully failing and refusing to pay [plaintiff and their other employees] the required minimum wage, overtime pay at [] one and one-half [times] their regular rates for work in excess of forty (40) hours per workweek under the FLSA, and willfully failing to keep records under the FLSA." Compl. ¶ 65. Moreover, "a defendant's default, in itself, may suffice to support a finding of willfulness." Gonzalez Mercedes v. Tito Transmission Corp., 2018 WL 7291452, at *4 (S.D.N.Y. Dec. 6, 2018) (quoting Santillan v. Henao, 822 F.Supp.2d 284, 297 (E.D.N.Y. 2011)), report and recommendation adopted sub nom. Mercedes v. Tito Transmission Corp., 2019 WL 102007 (S.D.N.Y. Jan. 4, 2019). Therefore, the statute of limitations for plaintiff's FLSA claims is three years. The statute of limitations under the NYLL is six years, regardless of willfulness. See NYLL § 198(3). Here, plaintiff alleges that he commenced work for defendants in February 2017,
9 less than three years before he filed this action on October 30, 2019. Compl. ¶ 15. Therefore, all of his FLSA and NYLL claims are timely.
D. Liability for Minimum Wage and Unpaid Overtime Violations
To state an FLSA wage claim, a plaintiff must allege: (1) that he was an employee of each defendant sued; (2) that his work "involved inte[r]state activity"; and (3) that he "worked hours for which [he] did not receive minimum and/or overtime wages." Pineda v. Tokana Cafe Bar Restorant Inc., 2017 WL 1194242, at *2 (S.D.N.Y. Mar. 30, 2017) (citing Zhong v. August August Corp., 498 F.Supp.2d 625, 628 (S.D.N.Y. 2007)); see also 29 U.S.C. §§ 206(a), 207(a)(1). "The requirements to make out a claim under the NYLL mirror the FLSA in most respects[,]" Reyes v. Lincoln Deli Grocery Corp., 2018 WL 2722455, at *3 (S.D.N.Y. June 5, 2018), order clarified, 2018 WL 3105070 (S.D.N.Y. June 25, 2018), except that the NYLL "does not require a plaintiff to show that the employer was involved in interstate commerce or had $500,000 in minimum annual sales," as required for the "interstate commerce" element of an FLSA claim. Id.
1. Employee-Employer Relationship
The FLSA defines "employer" broadly (and somewhat tautologically) as "any person acting directly or indirectly in the interest of an employer in relation to an employee[.]" 29 U.S.C. § 203(d). The Supreme Court has emphasized that this is an expansive definition with "striking breadth." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). Moreover, "an individual may simultaneously have multiple employers for the purposes of the FLSA, in which event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the FLSA." Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 421 (S.D.N.Y. 2017) (quoting 29 C.F.R. § 791.2(a)) (cleaned up).
10
To determine whether a plaintiff is an "employee" of a particular "employer" for FLSA purposes, courts examine the "economic reality" of the working relationship. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). In the Second Circuit, courts examine four nonexclusive factors to assess the "economic reality" of an alleged employment relationship, including: "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." Id. at 105 (quoting Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984)). The inquiry considers the "totality of circumstances," so "[n]o single factor is dispositive." Feng Chen v. Patel, 2019 WL 2763836, at *5 (S.D.N.Y. July 2, 2019).
Similarly, under the NYLL, the definition of "employer" is very broad, see NYLL § 190(3) ("employer" means "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service"), and the crucial inquiry in determining whether an employer-employee relationship exists is the "degree of control exercised by the purported employer over the results produced or the means used to achieve the results." Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013) (citing Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 695 (2003)). Although the New York Court of Appeals "has not yet answered the question of whether the test for 'employer' status is the same under the FLSA and the NYLL," Camara v. Kenner, 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018) (citing Irizarry, 722 F.3d at 117), "[t]here is general support for giving [the] FLSA and the New York Labor Law consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa)." Hart, 967 F.Supp.2d at 924 (internal citations omitted); see also Burns v. Scott,
11 635 F.Supp.3d 258, 275 (S.D.N.Y. 2022) (same), reconsideration denied, 2022 WL 18858909 (S.D.N.Y. Nov. 9, 2022).
I am satisfied that, for purposes of both the FLSA and the NYLL, plaintiff has adequately pleaded that he was employed by all defendants. Plaintiff alleges that defendants Garcia and Cosme were owners, officers and/or agents of corporate defendants Crismeli Grocery and Decatur Deli, and that Garcia and Cosme possessed operational control over the corporations, had ownership interests in the corporations, controlled significant functions of the corporations, determined plaintiff's wages, established his schedule, maintained employee records, and hired and fired employees. Compl. ¶¶ 20-21. These facts, taken as true for purposes of the inquest, meet the economic reality test under federal and state law. Moreover, plaintiff alleges that “in each year from 2017 to 2019, Defendants, both separately and jointly, had a gross annual volume of sales of not less than $500,000," id. ¶ 30, and that they "and/or their enterprise were directly engaged in interstate commerce," as goods sold in the delis were produced outside of New York State. Id. ¶ 31. Thus, defendants engaged in commerce for purposes of the FLSA.
2. Unpaid Minimum and Overtime Wages
The federal minimum wage between February 1, 2017 and October 18, 2019 was (and remains) $7.25 per hour. 29 U.S.C. § 206(a)(1). Under the NYLL, however, the minimum wage increased during plaintiff's employment. Until December 30, 2017, the minimum wage was $11 per hour for "large" employers in New York City, defined as those with 11 or more employees, and $10.50 for "small" employers in New York City, with 10 or fewer employees. NYLL § 652(1)(a)(i)-(ii). Between December 31, 2017, and December 30, 2018, large employers were required to pay $13 per hour, and small employers were required to pay $12 per hour. Id. As of December 31, 2018, the minimum wage rose to $15 per hour for large employers, and $13.50 per
12 hour for small employers. Id.; see also 12 NYCRR § 142-2.1(a). Under both federal and state law, an employer is required to pay an overtime rate of one and one-half times the employee's "regular rate" of pay for hours worked in excess of 40 per week. 29 U.S.C. § 207(a)(1); 12 NYCRR § 1422.2. If the employee's regular rate is less than the applicable minimum wage, the required overtime rate is one and one-half times the minimum wage. Martinez v. Dannys Athens Diner Inc., 2017 WL 6335908, at *4 (S.D.N.Y. Dec. 5, 2017); Baltierra v. Advantage Pest Control Co., 2015 WL 5474093, at *5 (S.D.N.Y. Sept. 18, 2015).
Under the FLSA, an employee's "regular hourly rate of pay" is computed "by dividing the salary by the number of hours which the salary is intended to compensate." 29 C.F.R. § 778.113(a). Under the relevant New York regulation, "the regular hourly wage rate shall be determined by dividing the total hours worked during the week into the employee's total earnings." 12 NYCRR § 142-2.16. Plaintiff alleges that he was paid a flat salary of $450 per week, regardless of the number of hours he worked that week. Compl. ¶¶ 43, 45. Under these circumstances, there is a "rebuttable presumption," under both the FLSA and the NYLL, that "a weekly salary covers only the first forty hours, unless the parties have an alternate agreement." Pinovi v. FDD Enters., Inc., 2015 WL 4126872, at *4 (S.D.N.Y. July 8, 2015) (collecting cases); accord, Rilloraza v. Rhodes, 2023 WL 7686699, at *6 (E.D.N.Y. Sept. 8, 2023); Ahn v. Sun Cleaners Inc., 2022 WL 586022, at *8 (E.D.N.Y. Feb. 18, 2022). Here, there is no evidence to rebut the presumption that plaintiff's $450 weekly salary covered the first 40 hours he worked each week. Therefore, his "regular rate" of pay, "derived by dividing the total amount of wages received in a work week by forty," Baltierra, 2015 WL 5474093, at *5, was $11.25 per hour. This was above the federal minimum wage, and was also above the applicable New York minimum wage until December 31, 2017. In 2018, however, small employers in New York City were required to pay 75 cents more per hour
13 than defendants paid to plaintiff, and in 2019, small employers in New York City were required to pay $2.25 more per hour than defendants paid to plaintiff. The Complaint therefore states a cognizable claim for unpaid minimum wages under the NYLL from December 31, 2017 forward.
Plaintiff does not provide any information about the number of employees on defendants' payroll. The Court therefore applies the minimum wage rates applicable to small businesses.
To state an unpaid overtime claim, "a plaintiff must allege only that [he] worked compensable overtime in a workweek longer than forty hours, and that [he] was not properly compensated for that overtime." Tackie v. Keff Enters. LLC, 2014 WL 4626229, at *3 (S.D.N.Y. Sept. 16, 2014) (citing Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 199201 (2d Cir. 2013)). Plaintiff alleges that throughout his employment, he typically worked 66 hours per week (over six days), with no pay beyond his standard $450 weekly salary. Compl. ¶¶ 38, 43. For four weeks, he worked approximately 77 hours per week (over seven days), again, with no pay beyond his $450 weekly salary. Id. ¶¶ 40, 41, 43. These allegations adequately state claims for unpaid overtime wages under the FLSA and the NYLL throughout his employment.
3. Spread-of-Hours Pay
Under the NYLL, an employee paid at the minimum wage (or less) is entitled to an extra hour of pay, at the applicable minimum wage rate, for each day in which the "spread of hours," that is, the "interval between the beginning and end of [plaintiff's] workday," 12 NYCRR § 1422.18, is greater than ten. Id. § 142-2.4. Plaintiff alleges that all his shifts were longer than ten hours, Compl. ¶¶ 38-40, and that he was never paid any spread-of-hours compensation. Id. ¶ 7. However, during the first eleven months of his employment, plaintiff 's regular rate of pay was slightly more than the then-prevailing minimum wage. Consequently, he has stated a claim for unpaid spread-of-hours-compensation under the NYLL, but only from December 31, 2017 forward. See Hernandez v. Delta Deli Mkt. Inc., 2019 WL 643735, at *7 (E.D.N.Y. Feb. 12, 2019) ("Only employees making the minimum wage rate, or less, are eligible for spread-of-hours compensation."); accord Pinovi, 2015 WL 4126872, at *5.
E. Damages
1. Unpaid Minimum and Overtime Wages
Plaintiff has submitted admissible evidence, in the form of his own sworn declaration, supporting his claims for unpaid minimum and overtime wages. Although plaintiff is eligible to recover damages under both the FLSA and the NYLL, he "may not recover twice." Gonzalez Mercedes, 2018 WL 7291452, at *5 (quoting Cao v. Wu Liang Ye Lexington Rest., Inc., 2010 WL 4159391, at *3 (S.D.N.Y. Sept. 30, 2010)). Rather, plaintiff "may recover under the statute which provides the greatest amount of damages." Id. (quoting Wicaksono v. XYZ 48 Corp., 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011), report and recommendation adopted, 2011 WL 2038973 (S.D.N.Y. May 24, 2011). In this case, that statute is the NYLL. Consequently, for the first forty hours he worked each week, plaintiff is entitled to recover the difference between his actual hourly rate ($11.25) and the required minimum rate of pay under state law for the relevant period ($12.00 per hour in 2018; $13.50 per hour in 2019). For his hours in excess of forty through December 30, 2017, he is entitled to 1.5 times his actual hourly rate ($16.88). Thereafter, he is entitled to 1.5 times the applicable New York minimum wage ($18.00 in 2018; $20.25 in 2019) for each such excess hour.
In his declaration, as in his Complaint, plaintiff asserts that from February 2017 through October 18, 2019, he consistently worked more than 40 hours per week. Pl. Decl. ¶ 9. Plaintiff attests that he typically worked 66 hours per week (11 hours per day for six days), id. ¶ 10, including 26 hours of overtime, except for four specific weeks (two in 2018, two in 2019) during which he worked approximately 77 hours (11 hours per day for seven days), id. ¶ 12, including 37 hours of overtime. All of his overtime was unpaid, id. ¶ 16, except during one 77-hour week, in 2018, for which he was paid an additional $80. Id. ¶ 13. During his last week of employment, plaintiff was paid nothing at all. Id. ¶ 14.
Plaintiff attests that his employment began in "approximately February 2017." Pl. Decl. ¶ 7. In calculating his damages, however, he begins on February 1, 2017. See Chart at 1. Since nothing in plaintiff's pleading or declaration contradicts this start date, the Court follows suit, and uses February 1, 2017 as the beginning of his employment with defendants.
Plaintiff asserts in his damages calculation that the week for which he was paid an additional $80 was the week of July 30, 2018. See Chart at 1. I note, however, that plaintiff's calculations incorporate a number of calendar errors. For example, he treats the period July 30, 2018 through August 3, 2018 (five days) as one week, for which he was entitled to 7 "SOH days." See Chart at 1. Similarly, he treats the period July 29, 2019 through August 9, 2019 (12 days) as two weeks, and the period October 8 through October 18, 2019 (11 days) as one week. Id. In calculating plaintiff's damages for purposes of this Report and Recommendation, I have attempted to correct these errors, which in some cases required me to adjust the dates on which specific weeks began and ended.
Plaintiff's testimony is sufficient for this Court to conclude that defendants failed to pay him the required minimum wage for the first forty hours that he worked on and after December 31, 2017. Plaintiff is owed $5,511.47 in unpaid minimum wages, calculated as follows:
(TABLE OMITTED)
As to unpaid overtime wages, plaintiff is entitled to $68,005.75, calculated as follows:
This overtime calculation incorporates the additional $80 that plaintiff was paid during the week beginning on July 25, 2018, and ending on July 31, 2018, and applies that $80 towards his overtime wages.
(TABLE OMITTED)
Therefore, plaintiff should be awarded a total of $73,517.22 for unpaid minimum and overtime wages.
2. Spread of Hours Pay
In his declaration, as in his Complaint, plaintiff asserts that all of his shifts were longer than ten hours. Pl. Decl. ¶¶ 10-12. Beginning on December 31, 2017, therefore, he was entitled to one extra hour's pay, at the then-prevailing minimum wage, for each day he worked. Consequently, plaintiff is owed $7,195.50. in spread of hours damages, calculated as follows: ($12.00 x 315) + (13.50 x 253).
3. Liquidated Damages
Plaintiff requests liquidated damages in the amount of 100% of his actual unpaid wages. Prop. Findings ¶¶ 48-49; see also Chart at 2; Damages St. at 1. Liability for liquidated damages may be avoided if the employer can demonstrate that it acted in "good faith." NYLL § 198(1-a). However, because a showing of good faith is an affirmative defense under the NYLL, a defaulting defendant cannot carry that burden. See Tackie, 2014 WL 4626229, at *4 (citing Jaramillo v. Banana King Rest. Corp., 2014 WL 2993450, *5 (E.D.N.Y. July 2, 2014)).
"The amount of liquidated damages is equal to 100% of the amount owed to the Plaintiffs in unpaid wages, which includes unpaid minimum wage, unpaid overtime, and unpaid spread-of-hours." Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 239 (S.D.N.Y. 2020), report and recommendation adopted sub nom. Villanueva v. 179 Third Ave. Rest. Inc., 2021 WL 2139441 (S.D.N.Y. May 26, 2021). Therefore, plaintiff is entitled to 100% of his unpaid minimum wages ($5,511.47), unpaid overtime wages ($68,005.75), and unpaid spread of hours pay ($7,195.50) as liquidated damages, for a total of $80,712.72 in liquidated damages.
4. Statutory Penalties
The Wage Theft Prevention Act (WTPA), NYLL § 195(3), requires employers to provide a written statement "with every payment of wages" that includes, inter alia, the dates worked during that pay period, the rate or rates of pay and the basis thereof, gross wages, deductions, allowances, and net wages. Id. Additionally, "at the time of hiring," employers must provide a written wage notice - in English and in the employee's "primary language" - that includes, 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 any "allowances, if any, claimed as part of the minimum wage," including tip allowances. NYLL § 195(1). An employee may recover statutory damages of $250 for each workday that his employer failed to provide the wage statement required by § 195(3), and $50 for each workday that his employer failed to provide the wage notice required by § 195(1), not to exceed damages of $5,000 for each violation. NYLL § 198(1-b), (1-d). Here, plaintiff seeks a total of $10,000 for defendants' WTPA violations. See Chart at 2; Damages St.
In federal court, however, a plaintiff may not automatically collect a statutory penalty upon proof of the corresponding statutory violation. To establish standing under the "cases and controversies" clause, see U.S. Const. art. III § 2, he must first demonstrate that he suffered a "concrete and particularized injury" as a result of the violation. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021); see also id. at 426 (because the existence of a statutory prohibition or obligation does not "simply enact an injury into existence," Article III standing "requires a concrete injury even in the context of a statutory violation") (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). Put another way, to demonstrate the required concrete and particularized "injury in fact," a plaintiff "cannot solely rely on the fact that the defendant committed a statutory violation." Neor v. Acacia Network, Inc., 2023 WL 1797267, at *4 (S.D.N.Y. Feb. 7, 2023) (dismissing WTPA claims where the complaint did not "allege any harm stemming from a lack of accurate wage notices or statements").
Here, as in Neor, although plaintiff alleges that defendants never provided the required wage statements or wage notices, Compl. ¶¶ 49-51, he has failed to allege any facts showing that the lack of paystubs or written wage notices confused him about the manner in which his pay was computed or caused any other "injury in fact." Consequently, plaintiff cannot recover the $10,000 in statutory damages he seeks under the WTPA. See Neor, 2023 WL 1797267, at *4; Sanchez v. Ms. Wine Shop Inc., 643 F.Supp.3d 355, 373 (E.D.N.Y. Nov. 30, 2022) (rejecting plaintiff's claim for statutory damages under the WTPA on inquest after default because "the allegations of the Complaint fail to establish a concrete injury resulting from Defendants' alleged failure to provide wage statements"); Hernandez v. 99 Thai Playground LLC, 2022 WL 18539303, at *7 (S.D.N.Y. Nov. 28, 2022) (same result, where plaintiff alleged "only a technical statutory violation [of the WTPA], and not a physical, monetary, or cognizable harm"), report and recommendation adopted, 2023 WL 1400626 (S.D.N.Y. Jan. 31, 2023).
5. Prejudgment Interest
In addition to liquidated damages, a plaintiff may recover prejudgment interest on his unpaid minimum and overtime wages under NYLL § 198(1-a). Andrade v. 168 First Ave Rest. Ltd., 2016 WL 3141567, at *10 (S.D.N.Y. June 3, 2016), report and recommendation adopted, 2016 WL 3948101 (S.D.N.Y. July 19, 2016) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999)). This is because - unlike liquidated damages - prejudgment interest is intended to "compensate a plaintiff for the loss of use of money." Reilly, 181 F.3d at 265 (quoting Chandler v. Bombardier Capital Inc., 44 F.3d 80, 83 (2d Cir. 1994)). However, "[p]rejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages." Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 2016 WL 4704917, at *18 (S.D.N.Y. Sept. 8, 2016) (quoting Maldonado v. La Nueva Rampa, Inc., 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012)), report and recommendation adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016).
New York's prejudgment interest rate is 9% per annum, see CPLR § 5004, and is computed "on a simple interest basis." Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998). "Where such 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." CPLR § 5001(b); see also Marfia, 147 F.3d at 91 ("New York law leaves to the discretion of the court the choice of whether to calculate prejudgment interest based upon the date when damages were incurred or 'a single reasonable intermediate date,' which can be used to simplify the calculation."). In NYLL cases, courts often calculate prejudgment interest from the midpoint of the plaintiff's employment. See Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 93 (E.D.N.Y. 2012) (collecting cases). The median date of the period for which plaintiff is owed damages (February 1, 2017 through October 18, 2019) is June 10, 2018. Interest has been accruing since that date at the rate of $19.90 per day ($80,712.72 x .09/365), and will continue to accrue at that rate until judgment is entered.
F. Attorneys' Fees and Costs
Plaintiff was represented through the active portion of this litigation by Michael Faillace and Gennadiy Naydenskiy of Michael Faillace & Associates, P.C. (MFA). Plaintiff now requests a total of $3,093.00 in attorneys' fees, based on MFA timesheets showing that Faillace (who signed the Complaint) spent 2.8 hours working on this case, at the stated rate of $450 per hour; that Naydenskiy (who signed the Proposed Findings) spent 1.1 hours on the case, at a stated rate of $350 per hour; and that at least one MFA paralegal spent 8.1 hours on the case, at a stated rate of $100 per hour. Prop. Findings ¶¶ 52-55; Billing Records.
On September 10, 2021, attorney Naydenskiy (who signed plaintiff's Proposed Findings) moved to withdraw as counsel prior to his last day of employment with Michael Faillace & Associates, P.C. (MFA) (Dkt. 39.) The Court granted that motion. (Dkt. 40.) On November 6, 2021, attorney Faillace moved to withdraw as counsel prior to his last day of work with his firm, writing that he expected to be suspended from practice by the Southern District of New York on November 8, 2021. (Dkt. 42.) In that motion, Mr. Faillace noted that MFA (renamed CSM Legal P.C.) was under new ownership, and in that form would continue to represent plaintiff in this matter. Id. The Court granted Mr. Faillace's withdrawal motion. (Dkt. 43.) Thereafter, attorneys Khalil Patrick Huey and Catalina Sojo entered notices of appearance on June 28, 2021, and November 4, 2021, respectively. (Dkts. 38, 41.) Ms. Huey and Ms. Sojo do not seek any fees in this action.
Both the FLSA and the NYLL allow a successful plaintiff to recover reasonable attorneys' fees. 29 U.S.C. § 216(b); NYLL §§ 198, 663(4). To determine a "presumptively reasonable fee," the court multiplies the hours counsel reasonably spent on the litigation by a reasonable hourly rate. Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). "The presumptively reasonable fee boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively." Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotations omitted).
1. Reasonable Hourly Rate
In determining whether an hourly rate is reasonable, "the court should apply the prevailing rate within the district for similar services by lawyers of comparable experience and skill." Galeana v. Lemongrass on Broadway Corp., 120 F.Supp.3d 306, 323 (S.D.N.Y. 2014) (citing Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)). Courts within this District typically "award fees [at] rates between $250.00 and $450.00 per hour in FLSA cases, deeming the upper range appropriate for the most experienced FLSA litigators." Lee v. Mani & Pedi Inc., 2022 WL 3645118, at *4 (S.D.N.Y. Aug. 24, 2022).
Mr. Faillace was suspended from practice in this District as of November 9, 2021, due to "repeatedly taking fees from settlements in excess of the amounts awarded to him by court order (effectively stealing from his clients' recoveries); refusing to follow client directions as to the amounts they wanted to settle the case; and . . . misrepresenting facts relating to these practices to the Southern District Committee." Victor v. Sam's Deli Grocery Corp., 2022 WL 3656312, at *14-15 (S.D.N.Y. Aug. 25, 2022) (quoting Garcia Lazaro v. Best Fish Mkt. Corp., 2022 WL 280768, at *2 (E.D.N.Y. Jan. 29, 2022)). In both cases, the court denied fees to Faillace after his suspension, finding that "[f]ew 'reasonable, paying clients' are going to retain an attorney who is going to be suspended for, among other things, stealing settlements from clients." Victor, 2022 WL 3656312, at *15 (quoting Garcia Lazaro, 2022 WL 280768, at *3). I agree. Additionally, I note that MFA (while still headed by Mr. Faillace) failed to serve the Proposed Findings on the defaulted defendants, as specifically required by ¶ 7 of the Scheduling Order. I therefore conclude that Mr. Faillace should not be awarded attorneys' fees.
Although MFA's failure to serve the Proposed Findings on defendants violated my Scheduling Order and Local Civ. R. 55.2(c), it did not violate Fed.R.Civ.P. 55(b)(2) (which does not require service of default papers except upon a defendant who "has appeared personally or by a representative" prior to defaulting) or the Due Process Clause. As Judge McMahon explained in Moskovitz v. La Suisse, 2013 WL 6197163, at *3 (S.D.N.Y. Nov. 25, 2013), there is no "constitutional necessity" that a defendant who was properly served with process at the outset of the case also be served with plaintiff's default motion. In this case, moreover, not only were the defaulted defendants served with process at the outset of this action; they were also served with the OSC (and all of its supporting documents), which advised them that plaintiff was seeking a default judgment and described the actions they were required to take should they wish to oppose the motion. "Neither the Due Process Clause nor the Federal Rules of Civil Procedure requires more than this." Flores Garcia v. Grocery-Taqueria Mexicana Corp., 2022 WL 17979917, at *5 S.D.N.Y. Nov. 29, 2022), report and recommendation adopted sub nom. Garcia v. Grocery-Taqueria Mexicana Corp., 2022 WL 17978895 (S.D.N.Y. Dec. 28, 2022).
Attorney Naydenskiy seeks fees at the rate of $350 per hour. Prop. Findings ¶ 53(b). Naydenskiy began his legal career in 2014, as a solo practitioner, and joined MFA in August 2018. Id. ¶ 53(ii). When this action commenced, he had been in practice for five years. Id. On December 29, 2021, Judge Lehrburger found that Mr. Naydenskiy's rate of $350 (for a case commenced in 2020) was "on the high end" for wage and hour attorneys at his experience level, and awarded him $250 per hour instead. Tambriz v. Taste & Sabor LLC, 577 F.Supp.3d 314, 333-34 (S.D.N.Y. 2021), report and recommendation adopted, 2022 WL 282918 (S.D.N.Y. Jan. 31, 2022). Judge Lehrburger also noted that Naydenskiy's work product was "sloppy, incomplete, and internally contradictory," and that the damages chart submitted in support of plaintiffs' default motion was mysteriously designated "a privileged settlement communication and subject to revision/correction." Id. at 333-34; see also Miranda v. Astoria Provisions, LLC, 2020 WL 6370058, at *10 (E.D.N.Y. July 24, 2020) (recommending that Naydenskiy's hourly rate be reduced to $200), report and recommendation adopted, 2020 WL 5810160 (E.D.N.Y. Sept. 30, 2020).
Here too, MFA's work-product has been sloppy, see supra n.4, and both pages of plaintiff's damage calculations bear a legend reading, "Privileged Settlement Communication/Subject to Revision." Chart at 1, 2. In addition, Naydenskiy apparently had charge of the case when MFA failed to serve the Proposed Findings on the defaulted defendants as required. These issues, along with his relative lack of experience and the "straightforward nature of a default judgment case," Miranda, 2020 WL 6370058, at *10, lead me to recommend that attorney Naydenskiy's hourly rate be reduced to $200.
Plaintiff does not identify, or provide any background information regarding, the paralegal(s) for whose work fees are sought at the rate of $100 per hour. See Prop. Findings ¶ 53(c). Courts in this district customarily award $75 per hour for the services of paralegals in wage and hour cases, "unless it has been shown that the paralegal has specialized skills." Knox v. John VarvatosEnters. Inc., 520 F.Supp.3d 331, 343 (S.D.N.Y. 2021), affdsub nom. Chaparro v. John VarvatosEnters, Inc., 2021 WL 5121140 (2d Cir. Nov. 4, 2021). Courts are particularly "skeptical of requested hourly rates" where, as here, "the applicant fails to provide information about the backgrounds of the relevant attorneys and paralegals." Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 28 (S.D.N.Y. 2015). Consequently, I recommend a reduction in the rate for MFA's paralegal(s) to $75 per hour.
2. Reasonable Number of Hours
An application for attorneys' fees must include "contemporaneous time records" that specify "the date, the hours expended, and the nature of the work done." Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022) (quoting New York State Assn for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). In this case, plaintiff has submitted MFA billing records reflecting the required information and showing that Mr. Faillace, Mr. Naydenskiy, and the MFA paralegal(s) spent a total of 12 hours on this case. See Billing Records at 1-2. The time expenditure is reasonable. See Zhen Ming Chen v. Y Cafe Ave B Inc., 2019 WL 2324567, at *5 (S.D.N.Y. May 30, 2019) (28.4 hours was reasonable in an FLSA/NYLL default case); Tackie, 2014 WL 4626229, at *7 (25.29 hours was reasonable in an FLSA/NYLL default case). Consequently, I recommend that plaintiff be awarded attorneys' fees in the amount of $828.00, as shown below.
Name
Faillace
Naydenskiy
Paralegal
Total
Reas. Hourly Rate
N/A
$200.00
$75.00
Reas. Hours
N/A
1.1
8.1
Reas. Fee
$0
$220.00
$608.00
$828.00
3. Expenses
I recommend that plaintiff be awarded $400.00 in expenses, reflecting the filing fee for this action. Plaintiff also requests costs for service fees, but failed to submit invoices or other evidence documenting those expenses, as required. See Sched. Order ¶ 5; ("Plaintiff must also submit . . . evidence documenting plaintiff's costs and expenses."); Fisher v. SDProt. Inc., 948 F.3d 593, 601 (2d Cir. 2020) (approving expenses only to the extent "documented . . . in the receipts and invoices submitted by counsel"). Consequently, no expenses beyond the filing fee should be awarded.
III. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that plaintiff be awarded damages in the aggregate amount of $162,653.44, plus prejudgment interest, against all defendants, comprising: (a) $73,517.22 in compensatory damages for defendants' failure to pay required minimum and overtime wages; (b) $73,517.22 in liquidated damages for the wage violations; (c) $7,195.50 for defendants' failure to provide "spread of hours" pay; (d) $7,195.50 in liquidated damages for the spread of hours violations; (e) $828.00 in attorneys' fees; (f) $400.00 in costs; and (g) prejudgment interest in the amount of $19.90 per day from June 10, 2018 to the date of entry of final judgment.
The Clerk of Court is respectfully directed to mail copies of this Report and Recommendation to the defaulted defendants, addressed as follows:
Crismeli Deli Grocery Inc.
297 Brook Avenue
Bronx, NY 10458
Reymundo Cosme c/o Crismeli Deli Grocery Inc.
297 Brook Avenue
Bronx, NY 10458
Decatur Deli Food Corp.
365 East 193rd Street
Bronx, NY 10454
Jose Dolores Garcia c/o Decatur Deli Food Corp.
365 East 193rd Street
Bronx, NY 10454
In light of the failure of plaintiff's counsel to mail copies of plaintiff's inquest submissions to the defendants as ordered, I direct counsel to mail those materials to them now, along with another copy of this Report and Recommendation, and file proof of such service upon the docket. This will enable defendants to review the entire relevant record when deciding whether to object to my recommendations. See Flores Garcia, 2022 WL 17979917, at *12.
NOTICE OF PROCEDURE FOR FILING OF 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. See also Fed.R.Civ.P. 6(a), (d). 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). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Vernon S. Broderick at Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Broderick. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).