Borja v. MSK Restaurant Corp et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------------- X
JESUS BORJA, on behalf of himself, FLSA Collective
Plaintiffs and the Class,
Plaintiff,
-against-
MSK RESTAURANT CORP d/b/a YANGSANDO, and
KEUM SOON PARK,
Defendants.
:
:
:
:
:
:
:
:
:
REPORT AND
RECOMMENDATION
22 Civ. 6178 (EK) (VMS)
------------------------------------------------------------------------- X
Vera M. Scanlon, Chief United States Magistrate Judge:
Plaintiff Jesus Borja (“Mr. Borja” or “Plaintiff”), on behalf of himself and others
similarly situated,1 filed this action against Defendants MSK Restaurant Corp d/b/a Yangsando
(“MSK” or the “Corporate Defendant”) and Keum Soon Park (“Ms. Park” or the “Individual
Defendant”) (collectively, “Defendants”) for alleged violations of the Fair Labor Standards Act,
29 U.S.C. §§ 201 et seq. (the “FLSA”) and the New York Labor Law, N.Y. Lab. L. §§ 190 et
seq.; 650 et seq., and the corresponding New York regulations (the “NYLL”). See Compl., ECF
No. 1. Before this Court, on referral from the District Judge, is Plaintiff’s motion for default
judgment as to damages. “Motion,” ECF No. 36.
For the reasons stated herein, this Court respectfully recommends that the Motion be
granted.
1 Although Plaintiff originally filed this action as a putative class and collective action, see
Compl. ¶¶ 14-25, ECF No. 1, Plaintiff sought “default judgment only on his own behalf, and not
on behalf of any putative class members.” See Pl. Mem., ECF No. 31. Accordingly, the Court
finds that Plaintiff has abandoned his claims as to putative collective and class members. See
Jimenez v. Green Olive Inc., 744 F. Supp. 3d 221, 256 (E.D.N.Y. 2024).
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 1 of 15 PageID #:
<pageID>

2
I. BACKGROUND
The following facts are derived from the Complaint and Plaintiff’s declarations in support
of his motion for default judgment, “First Pl. Decl.,” ECF No. 30, and the Motion, “Second Pl.
Decl.,” ECF No. 36-2, which, in light of Defendants’ failure to challenge Plaintiff’s allegations
by participating in this lawsuit, and are accepted as true for the purposes of the Motion. See
Jimenez v. Green Olive Inc., 744 F. Supp. 3d 221, 234-35 (E.D.N.Y. 2024) (collecting cases).
A. Factual Background
At all times relevant to this action, Defendant MSK was a restaurant located in Queens
County, New York. See Compl. ¶ 6. Ms. Park was a principal of MSK, with “operational
control” over the restaurant, which included the power to hire and fire employees, set employee
work schedules, determine the rate and method of employees’ compensation, and maintain
employment records. See id. ¶ 8.
“In or around August 2020,” Defendants hired Plaintiff to work as a busboy at MSK. Id.
¶ 26. While Plaintiff was employed by Defendants, Plaintiff’s duties included “bussing tables;
dishwashing; accepting/unloading deliveries; organizing deliveries; sweeping/mopping; and
cleaning the restaurant.” Id. ¶ 27.2 Plaintiff “was terminated on October 31, 2021.” Second Pl.
Aff. ¶ 4.
Throughout his employment, Plaintiff was regularly scheduled to work six days per week
from 10:30 a.m. to 10:30 p.m. See Compl. ¶ 28. Plaintiff “regularly” worked more than ten
hours in a single day. See id. ¶ 33. Although Plaintiff was supposed to be given a one-hour meal
2 Plaintiff does not explain how he was engaged in bussing tables during the first year of the
Covid-19 pandemic, when restaurant dining in New York City was limited by government order.
As Defendants have failed to appear and contest Plaintiff’s allegations, the Court accepts
Plaintiff’s statements as accurate.
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 2 of 15 PageID #:
<pageID>

3
break, Plaintiff was “interrupted and required to work through his meal breaks on a daily basis.”
Id. ¶ 31. In total, Plaintiff worked 72 hours per week. See id. ¶ 28.
Plaintiff received a flat weekly salary throughout his employment, regardless of the
number of hours he worked. See id. ¶ 29. From “the start of his employment until in or around
July 2021,” Plaintiff was paid $700.00 per week. Id. “From in or around July 2021 until the end
of his employment,” Plaintiff was paid $750.00 per week. Id. Plaintiff did not receive overtime
premiums for any hours that he worked above forty hours per week or spread-of-hours premiums
for any days during which he worked more than 10 hours. See id. ¶¶ 30, 33.
B. Procedural History
The full procedural history of this case is set forth in the Court’s Report and
Recommendation on Plaintiff’s Motion for Default Judgment (“R&R”), ECF No. 28. Borja v.
MSK Rest. Corp., No. 22 Civ. 6178 (EK) (VMS), 2025 WL 951402, at *1 (E.D.N.Y. Mar. 13,
2025), R&R adopted sub nom., 2025 WL 948122 (E.D.N.Y. Mar. 29, 2025). The Court recites
only the procedural history necessary to consider the Motion.
The R&R recommended that Defendants be found liable to Plaintiff for overtime
violations under the FLSA and the NYLL, for withheld tips under the FLSA and the NYLL, and
for spread-of-hours violations under the NYLL; that Plaintiff’s motion as to the time-shaving
claim be denied and that the claim be deemed abandoned and dismissed with prejudice; that
Plaintiff’s motion as to the wage-notice and wage-statements claims be denied without prejudice
and that the claims be dismissed without prejudice for lack of standing; and that Plaintiff be
permitted to file a new motion as to damages within 30 days of the R&R’s adoption, should it be
adopted. Id. at *1. No party objected to the R&R. The Court adopted the R&R in its entirety
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 3 of 15 PageID #:
<pageID>

4
and granted Plaintiff leave to file a motion for default judgment as to damages, attorneys’ fees
and costs within 30 days. Borja, 2025 WL 948122, at *1.
Plaintiff timely filed the Motion, which was served on Defendants on February 3, 2026,
see ECF No. 37. More than a week has passed since service was made, but Defendants have not
opposed the Motion.
II. LEGAL STANDARD FOR DEFAULT JUDGMENT AS TO DAMAGES
“While a party’s default is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.” Greyhound Exhibitgroup,
Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). The Court “must conduct an
inquiry sufficient to establish damages to a ‘reasonable certainty.’” Gunawan v. Sake Sushi
Restaurant, 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012) (quoting Credit Lyonnais Sec. (USA), Inc.
v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). A plaintiff’s damages must “naturally flow
from the injuries pleaded.” Fermin v. Las Delicias Peruanas Restaurant, Inc., 93 F. Supp. 3d 19,
29 (E.D.N.Y. 2015) (quoting Greyhound, 973 F.2d at 159).
In order to determine damages, the Court may “presume the accuracy of [Plaintiff’s]
recollection and estimates of hours worked set forth in [his] affidavits and damages
calculations.” Cao, 727 F. Supp. 3d at 296. Because, under the FLSA, the employer bears the
burden to track the hours that an employee works, “[a] plaintiff need not compute FLSA
damages with precision.” Harold Levinson Assocs., Inc. v. Chao, 37 F. App’x 19, 20 (2d Cir.
2002) (summary order). “[T]he Court may accept Plaintiff’s estimates regarding the amount he
is owed,” including any tips withheld. See Solis v. Tropical Rest. Bar Inc., No. 23 Civ. 1707
(ENV) (MMH), 2024 WL 4271234, at *15 (E.D.N.Y. Sept. 19, 2024). “Detailed affidavits and
other documentary evidence can suffice in lieu of an evidentiary hearing.” Gunawan, 897 F.
Supp. 2d at 83.
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 4 of 15 PageID #:
<pageID>

5
“[I]t remains the plaintiff[’s] burden to prove damages to a ‘reasonable certainty.’”
Lopez v. Yossi’s Heimishe Bakery Inc., No. 13 Civ. 5050 (FB) (CLP), 2015 WL 1469619, at *9
(E.D.N.Y. Mar. 30, 2015) (quoting Credit Lyonnais, 183 F.3d at 155). In order to establish this
reasonable certainty, the Court must “determin[e] the proper rule for calculating damages . . . and
assess[] [the] plaintiff’s evidence supporting the damages to be determined under this rule.”
Credit Lyonnais, 183 F.3d at 155.
A court may deny a default judgment motion if “[t]he record evidence does not provide a
sufficient basis for determining a damages award.” Singh v. Mowla, No. 19 Civ. 4687 (PKC)
(LB), 2022 WL 17820099, at *11 (E.D.N.Y. Sept. 30, 2022) (finding that the record did “not
even provide enough evidence to establish the number of hours that plaintiffs worked each
week,” so the court could not “determine [the plaintiffs’] hourly rate of pay”). A court may
decline to award damages in a default judgment motion if the plaintiff cannot prove damages to a
reasonable certainty, “even where liability has been established[.]” HTV Indus., Inc. v. Agarwal,
317 F. Supp. 3d 707, 717 (S.D.N.Y. 2018).
III. DISCUSSION
In light of the Court’s finding of liability against Defendants in Plaintiff’s favor for
overtime violations under the FLSA and the NYLL, for withheld tips under the FLSA and the
NYLL, and for spread-of-hours violations under the NYLL, the Court herein determines what
damages, if any, Plaintiff is entitled to recover from Defendants for each violation. Although
Plaintiff was granted leave to do so, he does not seek an award of attorneys’ fees or costs in the
Motion. See Mot. at 1.
As an initial matter, Plaintiff “may not recover double damages for the same injury under
both the FLSA and NYLL, though [he] is entitled to relief under whichever statute provides the
greater measure of damages.” Cooper v. Fire & Ice Trucking, Corp., No. 23 Civ. 1675 (KAM)
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 5 of 15 PageID #:
<pageID>

6
(TAM), 2024 WL 3344001, at *10 (E.D.N.Y. July 9, 2024). As discussed below, Plaintiff may
only recover for unpaid spread-of-hours damages under the NYLL, not the FLSA. Given that
Plaintiff’s recovery would be greater under the NYLL than under the FLSA, the Court calculates
Plaintiff’s overtime, retained tips and spread-of-hours damages pursuant to the NYLL. See, e.g.,
Diaz v. Rene French Cleaners, Inc., No. 20 Civ. 3848 (RRM) (RER), 2022 WL 4646866, at *6
(E.D.N.Y. Aug. 29, 2022) (awarding damages under the NYLL to allow plaintiff to recover, inter
alia, spread-of-hours damages), R&R adopted, 2022 WL 4662247 (E.D.N.Y. Sept. 30, 2022).
A. Overtime Violations
Plaintiff is entitled to compensatory damages for overtime violations under the NYLL at
the rate of one-and-one-half times his regularly hourly rate for any weekly hours worked in
excess of forty per week. See 12 N.Y.C.C.R. § 146-1.43 (“[In the hospitality industry,] [a]n
employer shall pay an employee for overtime at a wage rate of 1 1/2 times the employee’s
regular rate for hours worked in excess of 40 hours in one workweek.”). Under the NYLL,
where, as here, an employee in a restaurant was paid on a weekly basis, “the employee’s regular
hourly rate of pay shall be calculated by dividing the employee’s total weekly earnings . . . by the
lesser of 40 hours or the actual number of hours worked by that employee during the work
week.” 12 N.Y.C.C.R. § 146-3.5. Accordingly, Plaintiff’s regular rate for purposes of
determining overtime damages is calculated by dividing the salary Plaintiff received per week by
40 hours.4
3 Plaintiff does not specify under which Minimum Wage Order he seeks to be classified. In light
of Plaintiff’s employment as a busboy at a restaurant, the Court determines that Plaintiff is
covered by the Hospitality Wage Order. See 12 N.Y.C.R.R. § 146-3.1 (defining “hospitality
industry” as “any restaurant”); id. 146-3.2 (defining an “employee” in the hospitality industry).
4 In his calculations, to obtain the total amount of overtime wages owed each week, Plaintiff
subtracts the “hourly rate” from the overtime rate. See Mot. at 2, ECF No. 36; Damage Calcs. at
1-2, ECF No. 36-1. Plaintiff “was paid at two fixed rate salaries, regardless of how many hours
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 6 of 15 PageID #:
<pageID>

7
In order to determine overtime damages, the Court calculates Plaintiff’s overtime hourly
rate by multiplying his regular hourly rate by 1.5. The Court then subtracts forty from the total
hours that Plaintiff worked each week, and multiplies the difference by Plaintiff’s hourly
overtime rate, to calculate Plaintiff’s weekly overtime damages. The Court then multiplies these
amounts by the total number of weeks to calculate Plaintiff’s total overtime damages. See, e.g.,
Reyes-Fana v. Moca Grocery NY Corp., No. 21 Civ. 4493 (AMD) (RER), 2022 WL 5428688, at
*11 (E.D.N.Y. Aug. 16, 2022), R&R adopted, 2022 WL 4094241 (E.D.N.Y. Sept. 7, 2022);
Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 127 (E.D.N.Y. 2011). The Court
rounds the final calculations of damages to the nearest penny.
During the period from August 1, 2020 through June 30, 2021, Plaintiff was paid a fixed
weekly rate of $700 for all hours worked, and from July 1, 2021 through October 31, 2021, he
was paid a fixed weekly rate of $750 for all hours worked. See First Pl. Decl. ¶ 6; see also Mot.
at 1-2. The Court calculates Plaintiff’s overtime damages as follows.
[he] worked every week.” First Pl. Decl. ¶ 6. Plaintiff was a “busboy” at a restaurant, id. ¶ 3,
and “there was never any agreement that Plaintiff’s fixed weekly salary was intended to cover
the overtime hours in excess of forty (40) that he worked.” Compl. ¶ 29. The Court, therefore,
calculates Plaintiff’s overtime damages assuming that he was not paid for any hours worked
above forty each week. See, e.g., Zaldivar v. JANL, Inc., No. 23 Civ. 1434 (NCM) (LGD), 2025
WL 2413850, at *12 (E.D.N.Y. Aug. 20, 2025) (where restaurant worker was paid weekly for all
hours worked, calculating overtime owed as all hours over forty multiplied by the overtime rate),
R&R adopted, 2025 WL 2962731 (E.D.N.Y. Oct. 21, 2025); Mendez v. Sam Nat. Deli Corp.,
No. 25 Civ. 1692 (BMC), 2025 WL 3089308, at *1 (E.D.N.Y. Nov. 5, 2025) (using same
calculation method). These assumptions may not reflect the actual arrangement that controlled
Plaintiff’s employment with Defendants. For example, if Plaintiff had been paid an hourly, not
weekly, rate, his damages would be significantly reduced. Because Defendants have failed to
appear or to challenge the Motion, they have waived the right to raise such defenses or facts.
See, e.g., LG Cap. Funding, LLC v. Wowio, Inc., No. 16 Civ. 6632 (AMD) (RLM), 2018 WL
3202077, at *7 (E.D.N.Y. Apr. 24, 2018) (collecting cases finding that defaulting defendant
waives defenses), R&R adopted, 2018 WL 2224991 (E.D.N.Y. May 15, 2018).
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 7 of 15 PageID #:
<pageID>

8
Time
Period
Weekly
Pay
Hours
Worked
Overtime
(OT)
Hours
Regular
Rate
OT
Rate
OT Owed
Per Week
No. of
Weeks
Total
Owed
8/1/20 -
7/2/21
$700 72 32 $17.50 $26.25 $840 48 $40,320
7/3/21 -
10/31/21
$750 72 32 $18.75 $28.13 $900 17 $15,300
TOTAL $55,620
Accordingly, this Court respectfully recommends that Plaintiff be awarded $55,620.00 in
unpaid overtime wages.
B. Spread-of-hours Violations
As a busboy at a restaurant, for each day in which he worked more than ten hours,
Plaintiff was entitled to “receive one additional hour of pay at the basic minimum hourly rate.”
See 12 N.Y.C.R.R. 146-1.6.5 Plaintiff worked six 12-hour days per week, and he never received
any spread-of-hours premiums. See Compl. ¶¶ 33, 38. Accordingly, Plaintiff is entitled to
spread-of-hours damages for each day he worked.
In order to calculate spread-of-hours damages, the Court first multiplies the minimum
wage by the number of days per week during which Plaintiff worked more than ten hours per
day. This product is Plaintiff’s weekly spread-of-hours damages. The Court then multiplies
Plaintiff’s weekly damages by the number of full weeks that Plaintiff worked. See Chavez v.
Roosevelt Tropical Corp., No. 23 Civ. 2413 (EK) (PK), 2024 WL 4244087, at *10 (E.D.N.Y.
Aug. 21, 2024), R&R adopted, 2024 WL 4242218 (E.D.N.Y. Sept. 18, 2024).
5 While “[o]nly employees who earn minimum wage are eligible for spread-of hours’ pay,”
Reyes v. Bellerose Halal Meat Inc., No. 21 Civ. 6413 (MKB), 2025 WL 2664258, at *12
(E.D.N.Y. Sept. 17, 2025), an employee in the “hospitality industry,” as here, is entitled to the
spread-of-hours premium irrespective of the regular rate of compensation. See 12 N.Y.C.R.R. §
146-1.6; Hernandez v. Fu Long Food Prod. Inc., No. 24 Civ. 8391 (NCM) (MMH), 2025 WL
2470668, at *9 (E.D.N.Y. Aug. 26, 2025), R&R adopted, 2025 WL 2653909 (E.D.N.Y. Sept. 16,
2025).
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 8 of 15 PageID #:
<pageID>

9
The Court calculates Plaintiff’s spread-of-hours damages as follows.
Pay Period Begins 8/1/2020
Pay Period Ends 10/31/2021
Weeks Worked 65
Spread-of-hours Days Per Week 6
Minimum Wage $15.00
Weekly Spread-of-hours Damages $90.00
Total Spread-of-hours Damages $5,850.00 ($90.00 x 65)
Accordingly, this Court respectfully recommends that Plaintiff be awarded $5,850.00 in
unpaid spread-of-hours wages.
C. Withheld Tips
Plaintiff seeks compensatory damages for tips Defendants allegedly withheld, in the
amount of approximately $175 each day. See Mot. at 3. Plaintiff estimates this daily amount
“based on (i) the volume of Defendants’ business, (ii) the amounts of credit card tips and cash
tips [he] saw being left at tables that [he] cleaned up, and (iii) discussions with other employees
regarding the amounts of tips that guests had left.” Second Pl. Decl. ¶ 5. Plaintiff “regularly
serviced at least 20 tables on a daily basis.” Id.
“Plaintiff is entitled to the tips that [Defendants] unlawfully withheld[,] and the Court
may accept Plaintiff’s estimates regarding the amount he is owed.” Solis, 2024 WL 4271234, at
*15; see St. Louis v. Sugar Rush Inc., No. 23 Civ. 6373 (RER) (TAM), 2025 WL 2585569, at
*12 (E.D.N.Y. Aug. 18, 2025) (awarding tips to a restaurant server in the amount of $165 per
day based on plaintiff’s estimates), R&R adopted sub nom., 2025 WL 2576431 (E.D.N.Y. Sept.
5, 2025).
In light of the Defendants’ default and failure to oppose the Motion and the Court’s
obligation to assume as true Plaintiff’s allegations for purposes of the Motion and draw all
reasonable inferences in Plaintiff’s favor, see Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir.
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 9 of 15 PageID #:
<pageID>

10
2009), the Court respectfully recommends that Plaintiff be awarded damages for misappropriated
tips on the basis of Plaintiff’s estimates. The Court calculates Plaintiff’s compensatory damages
for misappropriated tips as follows.
Period Weeks Tips Withheld
Per Day
Days
Worked
Unpaid Tips
Per Week
Total Tips
Owed
8/1/2020 -
10/31/2021
65 $175.00 6 $1,050.00 $68,250.00
Accordingly, this Court respectfully recommends that Plaintiff be awarded $68,25.00 in
compensatory damages for misappropriated tips.
D. Liquidated Damages
Under the NYLL, an employer liable for a wage-and-hour violation owes the plaintiff the
“full amount of any such underpayment, and an additional amount as liquidated damages, unless
the employer proves a good faith basis for believing that its underpayment of wages was in
compliance with the law.” N.Y. Lab. L. § 198(1-a). Liquidated damages are awarded for unpaid
wages and withheld gratuities. See, e.g., Lunnon v. Rigolo Prods. LLC, No. 22 Civ. 7560 (RPK)
(RML), 2025 WL 1309488, at *4 (E.D.N.Y. Jan. 27, 2025) (awarding liquidated damages in “the
amount equal to [plaintiff’s] unpaid wages and withheld tips”), adopted by Order Adopting R. &
R., No. 22 Civ. 7560 (RPK) (RML) (E.D.N.Y. Mar. 10, 2025); Contreras v. Castro, No. 23 Civ.
9083 (AMD) (LB), 2025 WL 1004524, at *7 (E.D.N.Y. Mar. 7, 2025) (same), R&R adopted,
2025 WL 1002258 (E.D.N.Y. Apr. 3, 2025).
“[L]iquidated damages are presumed unless [the] defendants can show subjective good
faith.” Fermin, 93 F. Supp. 3d at 47 (quoting Zubair v. EnTech Eng’g, P.C., 900 F. Supp. 2d
355, 360 n.3 (S.D.N.Y. 2012)) (noting that defendants “have not established good faith to rebut
the liquidated damages presumption” if they have not appeared). Although liquidated damages
are not available in every wage-and-hour action, they are routinely awarded on a grant of default
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 10 of 15 PageID #:
<pageID>

11
judgment. Generally, if, as here, liability is found, then liquidated damages will follow. As
Defendants have not appeared in this action, they have not offered evidence to rebut the finding
in favor of NYLL liquidated damages. See Fermin, 93 F. Supp. 3d at 47.
Plaintiff is entitled to compensatory damages in the amounts of $55,620.00 for overtime
damages, $5,850.00 for spread-of-hours wages, and $68,250.00 for misappropriated tips, for a
total compensatory damages award of $129,720.00. The Court respectfully recommends,
therefore, that Plaintiff be awarded $129,720.00 in liquidated damages under the NYLL.
E. Prejudgment Interest
The NYLL, unlike the FLSA, permits awarding prejudgment interest to Plaintiff in
addition to compensatory and liquidated damages. See Zabrodin v. Silk 222, Inc., 702 F. Supp.
3d 102, 123-24 (E.D.N.Y. 2023). An award of pre-judgment interest is based only on
compensatory, not liquidated, damages. See id. at 124.
In his motion papers, Plaintiff does not seek an award of prejudgment interest.
Nevertheless, an award of prejudgment interest on NYLL claims is mandatory. See N.Y.
C.P.L.R. § 5001; Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 93 (2d Cir. 2000) (“[S]ection
5001 imposes an affirmative mandate on trial courts; they have no discretion not to award
prejudgment interest under New York law.”).
Prejudgment interest under the NYLL is calculated at nine percent per year, see N.Y.
C.P.L.R. § 5004(a), at a simple, not compounded, rate, see Fermin, 98 F. Supp. 3d at 49. Interest
begins accruing “from the earliest ascertainable date the cause of action existed[.]” N.Y.
C.P.L.R. § 5001(b). If, as here, damages are based on multiple violations of law, stemming from
different dates, “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.” Id. For NYLL claims, where
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 11 of 15 PageID #:
<pageID>

12
wage-and-hour violations may occur on each workday, courts generally calculate prejudgment
interest “from the midpoint date of the claims through the date judgment is entered.” Sanchez,
643 F. Supp. 3d at 380 (citations omitted).
In order to compute prejudgment interest, the Court first calculates a per diem interest
rate, by multiplying Plaintiff’s total award of compensatory damages by 0.09 and dividing the
result by 365. See Reyes-Fana, 2022 WL 5428688, at *14 n.6. The per diem interest rate is
added to the total damages amount for each day, starting at the midpoint date of the claims, until
the entry of judgment. See id. at *14. The Court rounds the per diem rate to the nearest penny.
Here, in the absence of any request from Plaintiff and in light of his employment from
August 1, 2020, through October 31, 2021, the Court sets the midpoint as April 7, 2021 as the
single reasonable intermediate date.
The Court calculates Plaintiff’s prejudgment interest as follows.
Total Compensatory Damages $129,720.00
Per Diem Interest Rate $31.996
Midpoint Between Claims 4/7/2021
Date For The Interest Calculation 2/13/2026
Days Between Midpoint And Date for Interest Calculation 1,773
Pre-Judgment Interest $56,718.27 ($31.99 x 1,773)
Accordingly, the Court respectfully recommends that, pursuant to the NYLL, Plaintiff be
awarded $56,718.27 in prejudgment interest, plus $31.99 per diem from today until judgment is
entered.
F. Post-judgment Interest
Plaintiff is entitled to post-judgment interest “as a matter of right.” See Sanchez v. Jyp
Foods Inc., No. 16 Civ. 4472 (JLC), 2018 WL 4502008, at *14 (S.D.N.Y. Sept. 20, 2018); 28
6 ($129,720 x 0.09)/365
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 12 of 15 PageID #:
<pageID>

13
U.S.C. § 1961(a) (“Interest shall be allowed on any money judgment in a civil case recovered in
a district court.”). “Post-judgment interest is calculated from the date of the entry of the
judgment, at the weekly average 1-year constant maturity U.S. Treasury yield rate published by
the Board of Governors of the Federal Reserve System for the calendar week.” Morales v. Mw
Bronx, Inc., No. 15 Civ. 6296 (TPG), 2016 WL 4084159, at *11 (citing 28 U.S.C. § 1961(a)).
The Court therefore recommends a post-judgment interest award on the total amount of
damages, at the rate set forth in 28 U.S.C. § 1961, calculated from the date on which the Clerk of
Court enters judgment until the date of payment. See Fermin, 93 F. Supp. 3d at 53 (collecting
cases awarding mandatory post-judgment interest in wage-and-hour cases).
G. Additional Damages
The NYLL entitles a successful plaintiff in a wage-and-hour action to additional damages
if a judgment is not timely paid. “[I]f any amounts remain unpaid upon the expiration of ninety
days following issuance of judgment, or ninety days after expiration of the time to appeal and no
appeal is then pending, whichever is later, the total amount of judgment shall automatically
increase by fifteen percent.” N.Y. Lab. L. § 198(4). This interest applies only to damages
awarded under the NYLL, see Sanchez, 643 F. Supp. 3d at 381 n.12, and may be awarded in
addition to post-judgment interest under 28 U.S.C. § 1961, see, e.g., Camillo v. Khim’s
Millennium Mkt., Inc., No. 22 Civ. 7846 (AMD) (PK), 2025 WL 951265, at *15 (E.D.N.Y. Mar.
13, 2025) (awarding fifteen percent increase alongside post-judgment interest), R&R adopted
sub nom., 2025 WL 948125 (E.D.N.Y. Mar. 28, 2025); Lata v. Live Constr. Corp., No. 24 Civ.
5981 (RER) (CLP), 2025 WL 2782336, at *20 (E.D.N.Y. Sept. 18, 2025) (same), R&R adopted,
2025 WL 2782495 (E.D.N.Y. Sept. 30, 2025).
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 13 of 15 PageID #:
<pageID>

14
Accordingly, the Court respectfully recommends that the judgment entered provide that
Plaintiff’s NYLL damages increase by fifteen percent if they remain unpaid more than ninety
days after the entry of judgment or the expiration of time to appeal, whichever is later.
IV. CONCLUSION
For the reasons set forth above and in the Report and Recommendation, Borja v. MSK
Rest. Corp., No. 22 Civ. 6178 (EK) (VMS), 2025 WL 951402, at *1 (E.D.N.Y. Mar. 13, 2025),
R&R adopted sub nom., 2025 WL 948122 (E.D.N.Y. Mar. 29, 2025), the Court respectfully
recommends that the Motion be granted, and that the District Court order Defendants jointly and
severally liable to Plaintiff for the following damages award:
- Compensatory overtime wage damages in the amount of $55,620.00;
- Compensatory spread-of-hours damages in the amount of $5,850.00;
- Compensatory misappropriated tips damages in the amount of $68,250.00;
- Liquidated damages in the amount of $129,720.00;
- Prejudgment interest in the amount of $56,718.27, plus $31.99 per diem from today until
judgment is entered;
- Post-judgment interest on the total amount of damages, at the rate set forth in 28 U.S.C. §
1961, calculated from the date on which the Clerk of Court enters judgment until the date of
payment; and
- A 15% increase in Plaintiff’s NYLL damages if they remain unpaid more than ninety days
after the entry of judgment or the expiration of time to appeal, whichever is later.
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 14 of 15 PageID #:
<pageID>

15
V. OBJECTIONS
This report and recommendation will be filed electronically and mailed to Defendants at
their last-known addresses: MSK Restaurant Corp. d/b/a Yangsando, 165-19 Northern Boulevard
Flushing, New York 11358, and Keum Soon Park, 5320 201st Street PH, Oakland Gardens, New
York 11364. See ECF No. 32. Any written objections to this report and recommendation must
be filed with the Clerk of the Court within fourteen (14) days of service of this report. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72(b). Any request for an extension of time for filing
objections must be directed to the District Judge prior to the expiration of the fourteen-day
objection period. Failure to timely file objections will preclude further review of this report and
recommendation either by the District Court or the Court of Appeals. See Miller v. Brightstar
Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).
Dated: Brooklyn, New York
February 13, 2026
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
Case 1:22-cv-06178-EK-VMS Document 38 Filed 02/13/26 Page 15 of 15 PageID #:
<pageID>