Amador et al v. 109-19 Food Corp. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SANTOS AMADOR, DARWIN ORTIZ, and MARIO AVILA,
Plaintiffs,
- against -
109-19 FOOD CORP., RUHANA FOOD INTERNATIONAL
LLC, LIBERTY WHOLESALE FOOD CORP., 241-11
LINDEN FOOD CORP., 16611 FOOD CORP., RAMIZA
FOOD CORP., 351 N. CENTRAL FOOD CORP., FOOD
FARM CORP., FOOD FARM GROUP, INC., SHEAK RIPON
a/k/a/ RONNIE SHEIK, individually, & SYEDA SHAHTAJ,
individually,
Defendants.
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REPORT &
RECOMMENDATION
21 Civ. 4633 (EK) (VMS)
Vera M. Scanlon, Chief United States Magistrate Judge:
Plaintiffs Santos Amador (“Mr. Amador”), Darwin Ortiz (“Mr. Ortiz”) and Mario Avila
(“Mr. Avila”) (collectively, “Plaintiffs”) bring this action to recover damages for violations of
the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (the “FLSA”), and the New York Labor
Law, NYLL §§ 190 et seq.; 650 et seq., and the corresponding New York regulations (the
“NYLL”). Before the Court on referral from the District Court is Plaintiffs’ Motion for Default
Judgment as to Damages (“Motion”), ECF No. 73.
For the reasons stated below, this Court respectfully recommends that the Motion be
granted in large part and denied as to certain discrete issues, and that damages, attorneys’ fees
and costs be awarded against Defendants jointly and severally to Plaintiffs as set forth herein.
I. BACKGROUND
This case arises out of Plaintiffs’ former employment at grocery stores operated by
Defendants.1 See generally Compl., ECF No. 1. The Court assumes familiarity with the factual
1 Defendants 101-19 Food Corp., Ruhana Food International LLC, Liberty Wholesale Food
Corp., 241-11 Linden Food Corp., 16611 Food Corp., Ramiza Food Corp., 351 N. Central Food
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and procedural history of this case, as set forth more fully in this Court’s report and
recommendation (“R&R”) regarding Plaintiffs’ motion for default judgment, Amador v. 109-19
Food Corp., No. 21 Civ. 4633 (EK) (VMS), 2025 WL 1032031 (E.D.N.Y. Mar. 14, 2025),
adopted by 2025 WL 1031133 (E.D.N.Y. Apr. 7, 2025). The R&R recommended that
Defendants be found liable to Mr. Amador for overtime violations under the FLSA and NYLL;
to Mr. Ortiz for overtime and minimum wage violations under the FLSA and NYLL; and to Mr.
Avila for overtime violations under the FLSA and NYLL, and for minimum wage and spread-of-
hours violations under the NYLL. See id.
On April 7, 2025, the District Judge adopted the R&R in its entirety, ECF No. 71, and
judgment on liability was entered against Defendants. Plaintiffs timely filed the Motion.
II. DISCUSSION
A. Legal Standard For Determining Damages
With judgment having been entered against Defendants as to liability, the Court must
assess any damages to be awarded to Plaintiffs. To establish damages under the FLSA, Plaintiffs
“need only prove that they performed work for which they were not properly compensated and
produce ‘sufficient evidence to show the amount and extent of that work as a matter of just and
Corp., Food Farm Corp. and Food Farm Group, Inc. (“Corporate Defendants”), are New York
corporations that operated grocery stores in Queens and Nassau Counties, New York, as well as
Sheak Ripon and Syeda Shahtaj (“Individual Defendants,” and, collectively with Corporate
Defendants, “Defendants”), who are the owners and operators of the Corporate Defendants. See
generally Compl.; R&R, 2025 WL 1032031, at *1-2. The “Liberty Location” is Defendants’
grocery store located at 109-19 Liberty Avenue, South Richmond Hill, New York 11419 in
Queens County. See Compl. ¶¶ 11, 46. The “Francis Lewis Location” (with the Liberty
Location, the “Queens Locations”) is Defendants’ grocery store located at 8961 Francis Lewis
Boulevard, Queens Village, New York 11427 in Queens County. See id. ¶¶ 20-21. The “Linden
Location” is Defendants’ grocery store located at 241-11 Linden Boulevard, Elmont, New York
11003 in Nassau County. See id. ¶¶ 11, 46. The “North Central Location” (with Linden
Location, the “Nassau Locations”) is Defendants’ grocery store located at 351 North Central
Avenue, Valley Stream, New York 11580 in Nassau County. See id. ¶¶ 17-19.
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reasonable inference.’” Reich v. S. New England Telecommunications Corp., 121 F.3d 58, 69
(2d Cir. 1997) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).
Where, as here, an employer does not produce records that comply with FLSA requirements, an
employee “may testify as to his own recollection in the absence of records kept by his
employer.” Aponte v. 5th Ave. Kings Fruit & Vegetables Corp., No. 20 Civ. 5625 (RER), 2022
WL 3655185, at *5 (E.D.N.Y. Aug. 25, 2022) (internal quotation omitted); see Kuebel v. Black
& Decker, Inc., 643 F.3d 352, 362 (2d Cir. 2011) (“It is well settled among the district courts of
this Circuit, and we agree, that it is possible for a plaintiff to meet this burden through estimates
based on his own recollection.”).
In order to determine damages, the Court may “presume the accuracy of [Plaintiffs’]
recollection and estimates of hours worked set forth in their affidavits and damages
calculations.” Cao v. Wedding in Paris LLC, 727 F. Supp. 3d 239, 296 (E.D.N.Y. 2024).
Because, under the FLSA, the employer bears the burden to track the hours 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). “However, it remains the plaintiffs’ 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 Sec.
(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). 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. “Detailed affidavits and other documentary evidence
can suffice in lieu of an evidentiary hearing.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76,
83 (E.D.N.Y. 2012).
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In support of the Motion, Plaintiffs submitted a declaration from each Plaintiff. See
Declaration of Santos Amador (“Amador Decl.”), ECF No. 75-1; Declaration of Darwin Ortiz
(“Ortiz Decl.”), ECF No. 75-2; Declaration of Mario Avila (“Avila Decl.”), ECF No. 75-3.
Plaintiffs also submitted a detailed spreadsheet of their damages. “Weekly Calcs.,” ECF No. 75-
5; see Declaration of Pelton Graham (“Atty. Decl.”), ECF No. 75.
As the Court noted in the R&R, the record raises questions about the accuracy of
Plaintiffs’ recollections and, in addition, about several defenses that Defendants could have
raised. See R&R, 2025 WL 1032031, at *28-29. Defendants have failed to participate in this
action after an initial attorney appearance, such that all defenses are waived. See, e.g., Gunawan,
897 F. Supp. 2d at 87 (collecting cases finding that defaulting employer waived affirmative
limitations defense); 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 a defaulting
defendant waives defenses), R&R adopted, 2018 WL 2224991 (E.D.N.Y. May 15, 2018). Given
that Plaintiffs’ recollections appear to be reasonably credible and accurate, the Court accepts
most of their statements and calculates the damages thereupon. See, e.g., Rodriguez v. Lucky
Lotto Grocery Deli Corp., No. 22 Civ. 2256 (ARR) (JRC), 2024 WL 3760583, at *13 (E.D.N.Y.
July 18, 2024) (“[T]he Court must ensure that plaintiff’s approximations and estimates are
reasonable and appropriate.”), R&R adopted sub nom., 2024 WL 3759660 (E.D.N.Y. Aug. 12,
2024).
B. Statutes Of Limitations
1. FLSA
Although the FLSA statute of limitations is normally two years, the limitations period
may be extended to three years for “a cause of action arising out of a willful violation[.]” 29
U.S.C. § 255(a). On a motion for default judgment, a court will apply the three-year statute of
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limitations if the plaintiff alleges that the defendant employer’s actions were “knowing and
willful.” Dacas v. Duhaney, No. 17 Civ. 3568 (EK) (VMS), 2023 WL 6297530, at *6 (E.D.N.Y.
Sept. 8, 2023), R&R adopted, 2023 WL 6294227 (E.D.N.Y. Sept. 27, 2023)
In this action, the three-year FLSA limitations period applies. Plaintiffs allege that
Defendants’ conduct “constitutes a willful violation of the FLSA within the meaning of 29
U.S.C. § 255(a).” Compl. ¶¶ 116, 120. Because Plaintiffs filed their complaint on August 17,
2021, the limitations period for Plaintiffs’ FLSA claims extends to August 17, 2018. See Compl.
As previously determined by the Court, the FLSA statute of limitations cuts off liability
for some of Plaintiffs’ FLSA claims. See R&R, 2025 WL 1032031, at *14-15. Mr. Ortiz began
working for Defendants in around October 2018, making his claims timely under the FLSA. See
Compl. ¶ 81. Although Mr. Amador worked for Defendants from around 2012 to 2020, only his
FLSA claims for conduct beginning August 17, 2018, are timely. See id. ¶ 67. In light of the
Court’s determination that Mr. Avila’s final day of employment was August 18, 2018, see R&R,
2025 WL 1032031, at *14, only one day of his employment falls within the FLSA limitations
period.
2. NYLL
The statute of limitations for NYLL claims is six years. See N.Y. Lab. L. §§ 198(3),
663(3). Because this action was filed on August 17, 2021, the presumptive limitations period for
Plaintiffs’ NYLL claims began August 17, 2015. See generally Compl.
New York’s response to the Covid-19 pandemic extended the limitations period for
Plaintiffs’ NYLL claims. New York Executive Order 202.8, signed March 20, 2020, tolled “any
specific time limit for the commencement, filing, or service of any legal action . . . as prescribed
by the procedural laws of this state.” N.Y. Exec. Order 202.8. This tolling period was extended
several times, through subsequent executive orders, until it ended on November 3, 2020. See
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N.Y. Exec. Order 202.67. Although this tolling period does not affect any limitations periods for
federal statutes, see Romero v. Manhattan & Bronx Surface Transit Operating Auth., No. 21 Civ.
491 (LJL), 2022 WL 624451, at *5-6 (S.D.N.Y. Mar. 2, 2022), courts have interpreted these
executive orders as a toll, rather than a suspension, of statutes of limitations for New York laws.
See Powell v. Scollard, No. 21 Civ. 1477 (VSB), 2023 WL 5975249, at *3-4 (S.D.N.Y. Sept. 14,
2023); McLaughlin v. Snowlift, Inc., 185 N.Y.S. 3d 212, 213-14 (2d Dep’t 2023). As such, the
statute of limitations on Plaintiffs’ NYLL claims was tolled from March 20, 2020, to November
3, 2020, or 228 days. Taking this tolling period into effect, the limitations period for Plaintiffs’
NYLL claims began January 1, 2015.2
Mr. Ortiz and Mr. Avila started working for Defendants in or around October 2018, and
September 2015, respectively. See Compl. ¶¶ 81, 96. These employment dates, even
approximated, are within the NYLL’s limitations period. As such, Messrs. Ortiz and Avila’s
entire employment periods are timely under the NYLL.
As previously determined by the Court, even with the tolling period, the statute of
limitations cuts off liability for some of Mr. Amador’s NYLL claims. See R&R, 2025 WL
1032031, at *17-18. Mr. Amador began working for Defendants in or around 2012, years before
the limitations period under the NYLL begins. See Compl. ¶ 67. As such, Mr. Amador’s
damages begin to accrue January 1, 2015.
C. Overtime Claims
The FLSA requires an employee to “be compensated at a rate of no less than one and
one-half times the regular rate of pay for any hours worked in excess of forty per week[.]”
Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013); see
2 August 17, 2015 – 228 days = January 1, 2015.
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29 U.S.C. § 207(a). New York regulations also require employers to “pay an employee for
overtime at a wage rate of one and one-half times the employee’s regular rate in the manner and
methods provided in and subject to the exemptions of” the FLSA. See 12 N.Y.C.C.R § 142-2.2.
With certain exceptions, the NYLL characterizes a “legal day’s work” as eight hours. See N.Y.
Lab. L. § 160. In order to establish “a plausible FLSA overtime claim, a plaintiff must
sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in
excess of the 40 hours.” Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 114
(2d Cir. 2013); see Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 44 (E.D.N.Y.
2015) (noting that the pleading requirements for an overtime claim “appl[y] in the context of the
NYLL as well”).
“Absent statutory exceptions, a flat sum compensation generally violates the overtime
requirements of the FLSA and the NYLL when an employee works in excess of 40 hours per
week without additional hourly compensation.” Sanchez v. Ms. Wine Shop Inc., 643 F. Supp. 3d
355, 370 (E.D.N.Y. 2022).
1. Mr. Amador
Mr. Amador estimates that from “2012 to early 2016,” he was employed as a butcher in
Defendants’ grocery stores and worked six eleven-hour days per week, for a total of 66 hours
each week, after breaks. See Amador Decl. ¶ 4; Compl ¶¶ 67-71. During this period, he was
paid $750 per week for all hours worked. See First Amador Decl. ¶ 9, ECF No. 41-4.
In early 2016, Mr. Amador began to work approximately six nine-hour days per week,
for a total of 54 hours each week, after breaks. See Amador Decl. ¶¶ 5-6. He continued to be
paid $750 per week for all hours worked. See First Amador Decl. ¶ 9.
In early 2017, Mr. Amador’s rate of pay increased to $800 per week, while his schedule
continued to be 54 hours per week. See First Amador Decl. ¶¶ 5, 9.
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Beginning the first week of January 2019, Mr. Amador was permitted to take a one-hour
lunch break each day, such that he began working six 8.5-hour days, for a total of 51 hours each
week. See Amador Decl. ¶ 7. At the same time, his pay was also increased to $900 per week for
these 51 hours worked per week. See First Amador Decl. ¶ 9.
Beginning the week of May 30, 2019, Mr. Amador “was transferred to the Linden Blvd.
location,” Amador Decl. ¶ 3, at which time his pay was increased to $1,000 per week. See First
Amador Decl. ¶ 10.
Beginning the week of November 7, 2019, Mr. Amador’s schedule changed again such
that one week per month, he worked only five, not six, 9.5-hour-days per week, for a total of
47.5 hours and a reduced weekly pay of $800. See id. ¶ 6.
Due to a workplace injury, Mr. Santos was out of work from June 11, 2020, through
September 9, 2020. See Amador Decl. ¶ 2.
The Court calculates Mr. Amador’s overtime damages as follows.3
Period No. of
Full
Weeks
Hours
Per
Week
Amount
Paid Per
Week
Reg.
Rate
OT
Premium
OT Hours
Per Week
Total OT
Owed Per
Week
Total OT
Owed In
Period
1/1/15 -
1/7/16
53 66 $750 $11.36 $5.68 26 $147.72 $7,829.55
1/8/16 -
1/4/17
52 54 $750 $13.69 $6.94 14 $97.22 $5,055.56
1/5/17 -
1/2/19
104 54 $800 $14.81 $7.41 14 $103.70 $10,785.19
1/3/19 - 21 51 $900 $17.65 $8.82 11 $97.06 $2,038.24
3 In the R&R, the Court identified certain inconsistencies in the timeline for changes in Mr.
Amador’s hours worked and rate of pay. See R&R, 2025 WL 1032031, at *4 n.6. In his
declaration, which was made “after reviewing the week by week spreadsheet created by [his]
attorneys,” Mr. Amador verifies that the calculations are “reasonably accurate and correct based
on [his] recollections.” Amador Decl. ¶ 1. The Court finds his explanation to be sufficient and
his estimates to be a reasonable way of calculating his damages, particularly given Defendants’
lack of opposition. See Cortes v. Juquila Mexican Cuisine Corp., No. 17 Civ. 3942 (RER), 2020
WL 13550200, at *9 (E.D.N.Y. July 30, 2020) (on a default motion, finding reasonable
plaintiffs’ averages of “estimated hours to determine damages”).
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5/29/19
5/30/19 -
11/6/19
23 51 $1,000 $19.61 $9.80 11 $107.84 $2,480.39
11/7/19 -
11/13/19
1 42.5 $800 $21.18 $10.59 2.5 $23.53 $23.53
11/14/19
- 12/4/19
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
12/5/19 -
12/11/19
1 42.5 $800 $21.18 $10.59 2.5 $23.53 $23.53
12/12/19
- 1/1/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
1/2/20 -
1/8/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
1/9/20 -
1/29/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
1/30/20 -
2/5/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
2/6/20 -
2/26/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
2/27/20 -
3/4/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
3/5/20 -
3/25/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
3/26/20 -
4/1/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
4/2/20 -
4/22/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
4/23/20 -
4/29/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
4/30/20 -
5/20/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
5/21/20 -
5/27/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
5/28/20 -
6/10/20
2 51 $1,000 $19.61 $9.80 11 $107.84 $215.68
9/10/20 -
9/16/20
1 51 $1,000 $19.61 $9.80 11 $107.84 $107.84
9/17/20 -
9/23/20
1 42.5 $800 $18.82 $9.41 2.5 $23.53 $23.53
9/24/20 -
10/14/20
3 51 $1,000 $19.61 $9.80 11 $107.84 $323.53
TOTAL $31,312.44
Accordingly, this Court respectfully recommends that Mr. Santos be awarded $31,312.44
in overtime damages.
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2. Mr. Ortiz
Mr. Ortiz worked as a butcher in Defendants’ grocery stores from approximately October
2018 through March 2021. See Compl. ¶¶ 81, 83; First Ortiz Decl. ¶¶ 1, 4, ECF No. 41-6.
From in or around October 2018 to early 2019, Mr. Ortiz worked six ten-hour days per
week, first from around 10:00 a.m. to around 8:00 p.m. each day, then from around 8:00 a.m. to
6:00 p.m. each day, for a total of 60 hours each week week. See Compl. ¶¶ 81, 84; First Ortiz
Decl. ¶ 5. During this time period, Mr. Ortiz received a flat pay rate of $290 per week. See
Compl. ¶ 89; First Ortiz Decl. ¶ 9. Mr. Ortiz’s hourly rate during this time was, therefore, only
$4.83 ($290 divided by 60).
“Beginning in or around 2019,” Mr. Ortiz’s weekly rate of pay increased from $290 to
$300. Compl. ¶ 89; see First Ortiz Decl. ¶ 9. Mr. Ortiz’s hours of work remained the same. See
Compl. ¶¶ 84, 86; First Ortiz Decl. ¶¶ 5-6. For the time period beginning in 2019, Mr. Ortiz’s
hourly rate was, therefore, only $5.00 ($300 divided by 60).
“In or around the end of 2019,” Mr. Ortiz was transferred from the Liberty Location to
the Linden Location. Compl. ¶ 82; see First Ortiz Decl. ¶ 2. During his time at the Linden
Location, Mr. Ortiz was “typically able to take thirty (30) minute meal breaks that were rarely
interrupted.” Compl. ¶ 86; see First Ortiz Decl. ¶ 6. As a result of these breaks, Mr. Ortiz
typically worked six 9.5-hour days per day during this time period, or 57 hours per week. See
Compl. ¶¶ 84, 86; First Ortiz Decl. ¶¶ 5-6. Upon his transfer to the Linden Location, his pay was
increased to $600 per week, see Compl. ¶ 90; First Ortiz Decl. ¶ 10, such that his hourly rate was
$10.53 ($600 divided by 57).
After five or six months of working at the Linden Location, Mr. Ortiz was transferred
back to the Liberty Location. See Compl. ¶ 82; First Ortiz Decl. ¶¶ 2, 11. Upon his return to the
Liberty Location, he no longer enjoyed uninterrupted breaks and therefore resumed working 60
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hours per week, with an increased pay of $900, see Compl. ¶¶ 84,86, 91; First Ortiz Decl. ¶¶ 5-6,
11, such that his hourly rate of pay during this time was $15.00 ($900 divided by 60).4
The Court calculates Mr. Ortiz’s overtime damages as follows.5
Period No. of
Full
Weeks
Hours
Per
Week
Amount
Paid Per
Week
Reg.
Rate
OT
Premium6
OT Hours
Per Week
Total OT
Owed Per
Week
Total OT
Owed In
Period
10/18/18
- 1/2/19
11 60 $290 $4.83 $6.50 20 $130 $1,430.00
1//3/19 -
7/17/19
28 60 $300 $5.00 $7.50 20 $150 $4,200.00
7/18/19
- 1/1/20
24 57 $600 $10.53 $6.00 17 $102 $2,448.00
1/2/20 -
2/5/20
5 60 $900 $15.00 $7.50 20 $150 $750.00
TOTAL $8,828.00
Accordingly, this Court respectfully recommends that Mr. Ortiz be awarded $8,828.00 in
overtime damages.
3. Mr. Avila
Mr. Avila worked as a butcher at the Liberty Location from “in or around September
2015” through “in or around late August 2018.” Compl. ¶¶ 96-97; see First Avila Decl. ¶¶ 1-2,
4 In February 2020, both Mr. Ortiz’s hours and pay were cut short. Mr. Ortiz began working
only on Saturdays and Sundays, from 8:00 a.m. to 6:00 PM, or 20 hours per week. See Compl. ¶
85; Ortiz Decl. ¶ 7. When Mr. Ortiz worked this reduced schedule, he was paid $300 per week.
See Compl ¶ 92; Ortiz Decl. ¶ 7. From February 2020 through remainder of his employment
with Defendants, Mr. Ortiz’s hourly rate was therefore $15.00 ($300 divided by 20).
5 In the R&R, the Court identified certain inconsistencies in the timeline for changes in Mr.
Amador’s hours worked and rate of pay. See R&R, 2025 WL 1032031, at *4 n.8, *5 n.9. In his
declaration, which was made “after reviewing the week by week spreadsheet created by [his]
attorneys,” Mr. Ortiz verifies that the calculations are “reasonably accurate and correct based on
[his] recollections.” Ortiz Decl. ¶ 1. As noted above with respect to Mr. Amador, the Court
finds his explanation to be sufficient and his estimates to be a reasonable way of calculating his
damages, particularly given Defendants’ lack of opposition.
6 Because Mr. Ortiz’s regular rate fell below the minimum-wage rate in certain periods, as
discussed further below, the Court calculates his overtime damages in these periods based on the
relevant minimum wage rates, his overtime rate being .5 times the relevant minimum-wage rate
during the period.
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ECF No. 41-5. As with Messrs. Amador and Ortiz, Mr. Avila was paid a flat weekly rate in
cash, and he did not receive any wage statements or pay stubs. See Compl. ¶ 103; First Avila
Decl. ¶ 7.
While employed with Defendants, Mr. Avila worked six days per week. See Compl. ¶
98; First Avila Decl. ¶ 4. Mr. Avila’s regular hours were from 10:00 a.m. to 6:00 p.m.; however,
he would frequently be called in to begin work either one or two hours early. See Compl. ¶ 98;
First Avila Decl. ¶ 4. Mr. Avila declares that while he was “often called to start” one or two
hours early, he estimates, based on his recollections, that he worked “one (1) additional hour
every four (4) weeks.” Avila Decl. ¶ 2. As such, Mr. Avila estimates that each month, he
worked three 57-hour weeks and one 58-hour week.
Although Mr. Avila was supposed to have a fifteen-minute break and a thirty-minute
break each day, “these breaks were typically interrupted by tasks including serving customers,
especially during holidays and during the summer, which were often busy in the meat
department.” Compl. ¶ 99; see First Avila Decl. ¶ 5; Avila Decl. ¶ 3. He does “not have a
precise recollection of the extent of uninterrupted breaks [he] was able to take” and, instead,
estimates that he “was able to take an average of thirty (30) minutes per day as an uninterrupted
break.” Avila Decl. ¶ 3.7
The Court calculates Mr. Avila’s overtime damages as follows.
7 In his declaration, which was made “after reviewing the week by week spreadsheet created by
[his] attorneys,” Mr. Avila verifies that the calculations are “reasonably accurate and correct
based on [his] recollections.” Avila Decl. ¶ 1. As noted above with respect to Messrs. Amador
and Ortiz, the Court finds his explanation to be sufficient and his estimates to be a reasonable
way of calculating his damages, particularly given Defendants’ lack of opposition.
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Period No. of
Full
Weeks
Hours
Per
Week
Amount
Paid Per
Week
Reg.
Rate
OT
Premium
8
OT Hours
Per Week
Total OT
Owed Per
Week
Total OT
Owed In
Period
9/17/15 -
12/30/15
3 58 $500 $8.62 $4.38 18 $78.75 $232.76
9/17/15 -
12/30/15
12 57 $500 $8.77 $4.39 17 $74.63 $895.56
12/31/15
- 1/4/17
14 58 $500 $8.62 $4.50 18 $81.00 $1,134.00
12/31/15
- 1/4/17
39 57 $500 $8.77 $4.50 17 $76.50 $2,983.50
1/5/17 -
1/3/18
13 58 $500 $8.62 $5.50 18 $99.00 $1,287.00
1/5/17 -
1/3/18
39 57 $500 $8.77 $5.50 17 $93.50 $3,646.50
1/4/18 -
8/18/18
8 58 $500 $8.62 $6.50 18 $117.00 $936.00
1/4/18 -
8/18/18
25 57 $500 $8.77 $6.50 17 $110.50 $2,762.50
TOTAL $13,887.82
Accordingly, this Court respectfully recommends that Mr. Avila be awarded $13,887.82
in overtime wage damages.
D. Minimum-wage Claims
The FLSA and the NYLL each set a minimum hourly wage rate for each covered
employee. See 29 U.S.C. § 206; N.Y. Lab. L. § 652. The federal minimum wage under the
FLSA was $7.25 per hour for all relevant times. See 29 U.S.C. § 206(a)(1)(C). Compliance
with the FLSA’s minimum wage provision does not “excuse noncompliance” with a state’s
minimum wage law, if the state’s minimum wage is higher. See 29 U.S.C. § 218(a).
The NYLL minimum-wage rate during the relevant limitations period is based on the
employer’s geographic location and the number of employees. See N.Y. Lab. L. § 652(1).
8 In 2015, Mr. Avila’s regular rate exceeded the relevant minimum-wage rate of $8.75, such that
his overtime-wage premium is 50% of his regular rate. From 2016 through the end of his
employment, Mr. Avila’s regular rate fell below the minimum-wage rate, such that his overtime-
wage premium is 50% of the relevant minimum-wage rate, as set forth more fully below.
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Within the relevant limitations period, minimum-wage rates under the NYLL differed depending
on whether the employee worked in New York City, in Nassau, Suffolk and Westchester
Counties, or in other counties in New York State. N.Y. Lab. L. §§ 652(1)(a)-(c). Within New
York City, minimum-wage rates were higher for “[l]arge employers” (defined as employers “of
eleven or more employees”) than for “[s]mall employers” (defined as employers of “ten or less
employees”). N.Y. Lab. L. § 652(1)(a). Where, as here, multiple work locations operate as a
single integrated enterprise, courts may consider the collective number of employees across all
locations for purposes of determining the appropriate minimum-wage rate. See, e.g., Rosa v. La
Oficina of Queens, Inc., No. 18 Civ. 6915 (FB) (PK), 2023 WL 2745214, at *8-9 (E.D.N.Y. Mar.
17, 2023), R&R adopted, 2023 WL 2736237 (E.D.N.Y. Mar. 31, 2023).
The Court has already determined that Defendants constitute a “large employer” for
purposes of the NYLL minimum-wage rate. See R&R, 2025 WL 1032031, at *22-23.
Accordingly, the relevant NYLL minimum wages for Plaintiffs’ period of employment are listed
in the following chart.
Minimum Wage
Effective Date
NYLL Minimum-Wage Rate
(Queens Locations)
NYLL Minimum-Wage Rate
(Nassau Locations)
1/5/2015 $8.75 $8.75
12/31/2015 $9.00 $9.00
12/31/2016 $11.00 $10.00
12/31/2017 $13.00 $11.00
12/31/2018 $15.00 $12.00
12/31/2019 $15.00 $13.00
12/31/2020 $15.00 $14.00
See N.Y. Lab. L. §§ 652(1)(a)-(b).
As Plaintiffs were compensated at a flat weekly sum, the Court calculates Plaintiffs’
hourly wages based on their weekly wages. Under both the FLSA and the NYLL, an employee’s
hourly wage is calculated by dividing the weekly compensation by the number of hours the
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employee worked. See 29 C.F.R. § 778.1099 (“The regular hourly rate of pay of an employee is
determined by dividing his total remuneration for employment (except statutory exclusions) in
any workweek by the total number of hours actually worked by him in that workweek for which
such compensation was paid.”); 12 N.Y.C.C.R. § 142-2.1610 (“When an employee is paid on a
piece work basis, salary, or any basis other than hourly rate, the regular hourly wage rate shall be
determined by dividing the total hours worked during the week into the employee’s total
earnings.”); see also Fermin, 93 F. Supp. 3d at 42.
Pursuant to both state and federal regulations, in order to determine minimum wage
damages for Messrs. Ortiz and Avila during the period of liability,11 the Court divides each
Plaintiff’s weekly compensation by the hours he worked that week.
1. Mr. Ortiz
As discussed above, Mr. Ortiz began working for Defendants “in or around October
2018.” Compl. ¶ 81; see First Ortiz Decl. ¶ 1. Throughout his employment, Mr. Ortiz received
weekly payments in cash. See Compl. ¶ 88.
9 Although this calculation is typically used to calculate hourly rates for determining an
employee’s overtime-wage rate, courts in this District have applied this regulation for calculating
hourly rates for minimum-wage claims as well. See Cao, 727 F. Supp. 3d at 277; Sanchez, 643
F. Supp. 3d at 375.
10 New York’s Hospitality Industry Wage Order uses a different method of calculating an hourly
rate for employees employed in the hospitality industry. See 12 N.Y.C.C.R.R. § 146-3.5.
Plaintiffs, who worked as butchers, “performing duties including cutting, grinding, de-boning,
tying and packaging meat” and undertaking other tasks associated with work at a grocery store
meat counter, see Compl. ¶¶ 68, 83, 97; First Amador Decl. ¶ 3; First Ortiz Decl. ¶ 4; First Avila
Decl. ¶ 3, do not contend that they were “food service workers” in the “hospitality industry” as
defined by these regulations. The Court agrees and thus calculates Plaintiffs’ damages pursuant
to the Miscellaneous Industries and Occupations Wage Order, 12 N.Y.C.C.R.R. § 142 et seq.
11 Mr. Amador does not seek unpaid minimum wage damages, and the Court finds that his
regular rates of pay exceeded the relevant minimum-wage rates. See supra § II(C)(1).
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Beginning in October 2018, Mr. Ortiz received a weekly pay of $290. See Compl. ¶¶ 81,
89; First Ortiz Decl. ¶ 9. Mr. Ortiz’s weekly pay rate increased to $300 in early 2019. See
Compl. ¶ 89; First Ortiz Decl. ¶ 9. Beginning the week of July 18, 2019, Mr. Ortiz was
transferred to the Linden Location, where he worked until December 26, 2019, at which time he
was transferred back to the Liberty Location, and his pay was increased to $900 per week. See
Ortiz Decl. ¶ 2. Beginning in February 2020, when Mr. Ortiz’s hours were reduced, Mr. Ortiz’s
weekly wages were also reduced to $300. See Compl. ¶ 92; Ortiz Decl. ¶ 7. Mr. Ortiz ceased
working for Defendants “in or around March 2021.” Ortiz Decl. ¶ 8.
Based on the hours that Mr. Ortiz worked per week, see supra, Part III.C.3.a.ii.,
accounting for meal breaks, and the locations at which he worked, the Court calculates the
following hourly rates for Mr. Ortiz’s employment, compared to the locally applicable NYLL
and FLSA minimum-wage rates.
The Court calculates Mr. Ortiz’s NYLL minimum-wage damages as follows.
Period No. of
Full
Weeks
Weekly
Rate
Hours
Worked
Per
Wk.
Hourly
Rate
Location NYLL
MW
Rate
Total
MW
Owed
Per Wk.
Total MW
Owed in
Period
10/18/18
- 1/2/19
11 $290.00 60 $4.83 Liberty
(Queens)
$13.00 $490.20 $5,392.20
1/3/19 -
7/17/19
28 $300.00 60 $5.00 Liberty
(Queens)
$15.00 $600.00 $16,800.00
7/18/19 -
1/1/20
24 $600.00 57 $10.53 Linden
(Nassau)
$12.00 $83.79 $2,010.96
TOTAL $24,203.16
Accordingly, this Court respectfully recommends that Mr. Ortiz be awarded $24,203.16
in minimum-wage damages.
2. Mr. Avila
Mr. Avila began working for Defendants “in or around September 2015[.]” Compl. ¶ 96.
Throughout his employment with Defendants, solely at the Liberty Location, Mr. Avila received
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weekly payments in cash, in the amount of $500 per week. See id. ¶¶ 96, 101-02. Mr. Avila
ceased working for Defendants “through in or around late August 2018,” id. ¶ 96, which, as
discussed above, the Court establishes as August 18, 2018.
Based on the hours that Mr. Avila worked per week, see supra, Part III.C.3.a.iii.,
accounting for meal breaks and his work at a “large employer” in New York City, the Court
calculates Mr. Avila’s NYLL minimum-wage damages as follows.
Period No. of
Full
Weeks
Weekly
Rate
Hours
Worked
Per Wk.
Hourly
Rate
NYLL
MW Rate
Total MW
Owed Per
Week
Total MW
Owed In
Period
9/17/15 -
12/30/15
3 $500 58 $8.62 $8.75 $7.50 $22.50
9/17/15 -
12/30/15
12 $500 57 $8.77 $8.75 $0 $0
12/31/15
- 1/4/17
14 $500 58 $8.62 $9.00 $22.00 $308.00
12/31/15
- 1/4/17
39 $500 57 $8.77 $9.00 $13.00 $507.00
1/5/17 -
1/3/18
13 $500 58 $8.62 $11.00 $138.00 $1,794.00
1/5/17 -
1/3/18
39 $500 57 $8.77 $11.00 $127.00 $4,953.00
1/4/18 -
8/18/18
8 $500 58 $8.62 $13.00 $254.00 $2,032.00
1/4/18 -
8/18/18
25 $500 57 $8.77 $13.00 $241.00 $6,025.00
TOTAL $15,641.50
Accordingly, this Court respectfully recommends that Mr. Avila be awarded $15,641.50
in minimum-wage damages.
E. NYLL Spread-of-hours Claims
New York Labor Law entitles employees who earn the minimum wage (or less) to earn
an additional hour of pay, at the minimum wage, for each day during which the employee works
more than ten hours. See 12 N.Y.C.C.R. § 142-2.4. Typically, an employee is not entitled to
this spread-of-hours premium if the employee’s hourly rate is greater than the minimum wage.
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See Fermin, 93 F. Supp. 3d at 45-46 (citations omitted); Jimenez v. Green Olive Inc., 744 F.
Supp. 3d 221, 249-50 (E.D.N.Y. 2024) (collecting cases).
The Court has already found that Messrs. Amador and Ortiz are not entitled to spread-of-
hours damages. See R&R, 2025 WL 1032031, at *26. Accordingly, the Court only calculates
spread-of-hours damages for Mr. Avila.
As discussed above, Mr. Avila estimates that, one week every month, he worked one
extra hour on one day. Accordingly, on this one day per month, Mr. Avila is entitled to spread-
of-hours pay, as his rate of pay was below the minimum wage and, because he was paid weekly
for all hours worked, he did not receive any spread-of-hours compensation.
The Court calculates Mr. Avila’s spread-of-hours damages as follows.
Period No. of Weeks in
which Mr. Avila
Worked a Day More
Than 10 Hours
No. of Days Each
Week in which Mr.
Avila Worked More
than 10 Hours
NYLL
Minimum-
Wage Rate
Total Spread-Of-
Hours Owed in
Period
9/17/15 -
12/30/15
3 1 $8.75 $26.25
12/31/15 -
1/4/17
14 1 $9.00 $126.00
1/5/17 -
1/3/18
13 1 $11.00 $143.00
1/4/18 -
8/18/18
8 1 $13.00 $104.00
TOTAL $399.25
Accordingly, the Court respectfully recommends that Mr. Avila be awarded $399.25 in
spread-of-hours damages.
F. Liquidated Damages
Under both the NYLL and the FLSA, an employee is entitled to recover liquidated
damages, in the amount of 100% of the employee’s compensatory wage damages, unless the
employer can establish a good-faith basis for having failed to pay the required wages. See 29
U.S.C. § 260; N.Y. Lab. Law § 198(1-a); Fermin, 93 F. Supp. 3d at 47. “[T]he employer bears
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the burden of establishing, by plain and substantial evidence, subjective good faith and objective
reasonableness. The burden . . . is a difficult one to meet, however, and double damages are the
norm, single damages the exception.” Solis v. SCA Rest. Corp., 938 F. Supp. 2d 380, 403
(E.D.N.Y. 2013) (internal citations & quotation marks omitted). “To establish ‘good faith,’ a
defendant must produce ‘plain and substantial evidence of at least an honest intention to
ascertain what the Act requires and to comply with it.’” Reich, 121 F.3d 58, 71 (2d Cir. 1997)
(quoting Brock w. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987)). In the event an employer does
not demonstrate good faith, an employee is entitled to recover liquidated damages up to 100% of
the total unpaid wages. See N.Y. Lab. Law §§ 198(1-a), 663(1) (effective Apr. 9, 2011); 29
U.S.C. § 216(b); Gonzalez v. Masters Health Food Serv. Inc., No. 14 Civ. 7603 (VEC), 2017
WL 3835960, at *18 (S.D.N.Y. July 27, 2017). For purposes of calculating liquidated damages,
unpaid wages includes unpaid spread-of-hours pay. See Cazarez v. Atl. Farm & Food Inc., No.
15 Civ. 2666 (CBA) (RML), 2017 WL 3701687, at *8 (E.D.N.Y. May 31, 2017), R&R adopted,
2017 WL 3701479 (E.D.N.Y. Aug. 25, 2017).
Here, by defaulting, Defendants have not demonstrated the requisite “good faith” to avoid
imposition of liquidated damages. See, e.g., Payamps v. M & M Convenience Deli & Grocery
Corp., No. 16 Civ. 4895 (LDH) (SJB), 2019 WL 8381264, at *13 (E.D.N.Y. Dec. 9, 2019)
(collecting cases).
Where a plaintiff is entitled to liquidated damages under both the FLSA and NYLL,
double recovery under both statutes is generally not available. See Chowdury v. Hamza Express
Food Corp., 666 F. App’x 59, 60 (2d Cir. 2016). In these instances, courts may award liquidated
damages under the statute that provides the greater potential recovery. See Wu v. Nat. Tofu
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Rest. Corp., No. 16 Civ. 3613 (ARR) (ST), 2018 WL 1009274, at *10 (E.D.N.Y. Feb. 20, 2018)
(collecting cases).
Here, the NYLL provides the greater recovery, so the Court awards liquidated damages
on the full amounts of Plaintiffs’ NYLL compensatory wage damages.
Mr. Amador is owed $31,312.44 in compensatory overtime-wage damages under the
NYLL, so the Court respectfully recommends that he be awarded $31,312.44 in liquidated
damages. Mr. Ortiz is owed compensatory damages of $8,828.00 in overtime wages and
$24,203.16 in minimum wages, so the Court respectfully recommends that Mr. Ortiz be awarded
$33,031.16 in liquidated damages. Mr. Avila is owed compensatory damages of $13,887.82 in
overtime wages, $15,641.50 in minimum wages and $399.25 in spread-of-hours premiums, so
the Court respectfully recommends that Mr. Avila be awarded $29,928.57 in liquidated
damages.12
G. Prejudgment Interest
Plaintiffs seek an award of prejudgment interest for compensatory NYLL damages owed.
The NYLL, unlike the FLSA, permits awarding prejudgment interest to a 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
damages, not liquidated damages. See id. at 124.
Prejudgment interest under New York law is calculated at nine percent per year. See
N.Y. C.P.L.R. § 5004(a). Interest begins accruing “from the earliest ascertainable date the cause
12 In the brief period of Defendants’ attorneys’ appearance, counsel informed the Court that
Defendants had already paid allegedly owing wages to Defendants by payment to the New York
State Department of Labor. See 6/3/2022 Order (describing counsel’s representations at the
January 26, 2022, conference before this Court). If this is correct, Defendants may be entitled to
a credit or offset against these calculations.
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of action existed[.]” N.Y. C.P.L.R. § 5001(b). If, as here, damages are based on multiple
violations of law that arise 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 wage-and-hour violations may occur on each workday, courts
generally calculate pre-judgment interest “from the midpoint date of the claims through the date
judgment is entered.” Sanchez, 643 F. Supp. 3d at 380 (citations omitted). Prejudgment interest
is calculated at a simple, not compounded, rate. See Fermin, 98 F. Supp. 3d at 49.
In order to compute prejudgment interest, the Court first calculates a per diem interest
rate, by multiplying each Plaintiff’s total award of compensatory damages by 0.09 and dividing
the result by 365. See Reyes-Fana v. Moca Grocery NY Corp., No. 21 Civ. 4493 (AMD) (RER),
2022 WL 5428688, at *14 n.6 (E.D.N.Y. Aug. 16, 2022), R&R adopted, 2022 WL 4094241
(E.D.N.Y. Sept. 7, 2022). 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 date on which judgment is entered.
See id. at *14. The Court rounds the per diem rate to the nearest penny.
The Court, therefore, calculates Plaintiffs’ prejudgment interest as follows.
Mr. Amador Mr. Ortiz Mr. Avila
Total NYLL Compensatory Damages $31,312.44 $33,031.16 $29,928.57
Per Diem Interest Rate $7.7213 $8.1414 $7.3815
Midpoint Between Claims 11/23/201716 1/1/202017 3/3/201718
13 ($31,312.44 x .09)/365
14 ($33,031.16 x .09)/365
15 ($29,928.57 x .09)/365
16 Mr. Amador’s damages begin on January 1, 2015, and end on October 15, 2020, making
November 23, 2017, the midpoint for this period.
17 Mr. Ortiz’s damages begin on October 18, 2018, and end on March 17, 2021, making January
1, 2020, the midpoint for this period.
18 Mr. Avila’s damages begin on September 17, 2015, and end on August 18, 2018, making
March 3, 2017, the midpoint for this period.
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Accordingly, the Court respectfully recommends that prejudgment interest be awarded in
the following amounts: for Mr. Amador, $7.72 per day from April 7, 2021, until the date of
judgment; for Mr. Ortiz, $8.14 per day from January 1, 2020, until the date of judgment; and for
Mr. Avila, $7.38 per day from March 3, 2017, until the date of judgment.
H. Post-judgment Interest
Plaintiffs are entitled to post-judgment interest as a matter of right. See 28 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 (S.D.N.Y. Aug. 1, 2016) (citing 28 U.S.C. §
1961(a)).
The Court therefore recommends that post-judgment interest be awarded 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).
I. Automatic 15% Increase Of NYLL Damages
The NYLL entitles a successful plaintiff to additional damages in a wage-and-hour action
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
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addition to post-judgment interest awarded 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).
Accordingly, the Court respectfully recommends that Plaintiffs’ 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.
J. Attorneys’ Fees And Costs
The FLSA and the NYLL both permit an award of attorneys’ fees and costs in a wage-
and-hour action, “in addition to any judgment awarded to the plaintiff or plaintiffs.” 29 U.S.C. §
216(b); see N.Y. Lab. L. §§ 198(1-a), 663. Plaintiffs seek an award of $44,053.29 in attorneys’
fees and $5,953.03 in costs. See Prop’d Order at 2, ECF No. 75-8.
1. Attorneys’ Fees
a. Reasonable Hourly Rate
The party requesting attorneys’ fees “has the burden to prove the reasonableness and
necessity of the hours spent and the rates charged[,]” by “provid[ing] contemporaneous records
indicating for each attorney the date, hours expended, and nature of the work done.” Zabrodin,
702 F. Supp. 3d at 124. The amount of attorneys’ fees awarded is up to the “broad discretion” of
the district court. Cao, 727 F. Supp. 3d at 298 (citation omitted).
In order to set the proper rate of attorneys’ fees, the Court must examine both the
attorneys’ hourly rates and the “reasonableness of the number of hours expended by counsel.”
Id. at 299-300. In determining reasonableness, “courts consider market rates prevailing in the
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community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Jimenez, 744 F. Supp. 3d at 257 (citation omitted). Courts in this District have
recently awarded hourly rates ranging from “$450-$650 for partners, $300-$450 for senior
associates, $150-$300 for junior associates, and $100–$150 for paralegals.” Kim v. J&J
Safetymate Corp., No. 22 Civ. 1070 (TAM), 2025 WL 2783273, at *3 (E.D.N.Y. Sept. 30, 2025)
(quoting Rubin v. HSBC Bank USA, N.A., 763 F. Supp. 3d 233, 244 (E.D.N.Y. 2025)).
Plaintiffs have submitted contemporaneous billing records in support of their request,
which seeks reimbursement for 1.75 hours of work by Graham Pelton, Esq., at $450 per hour;
16.10 hours of work by Taylor Graham, Esq., at $350 per hour; 88.2 hours of work by Joanne
Albertsen, Esq., at $300 per hour; and 62.29 hours of work by paralegal Belinda Herazo, at $175
per hour. See Billing Records at 1, ECF No. 75-7.
In his declaration in support of Plaintiffs’ motion for default judgment, which was filed
on November 14, 2022 (“First Pelton Decl.,” ECF No. 41), Mr. Pelton declares that he has
“approximately twenty (20) years of experience” practicing primarily wage-and-hour litigation in
New York state and federal courts. See First Pelton Decl. ¶ 29. Mr. Graham graduated from
Fordham Law School in 2011 and has since practiced wage-and-hour law in state and federal
court in New York, New Jersey and California. See id. ¶ 30. Ms. Albertsen “has worked for the
firm since August 2013” and graduated from New York University School of Law in 2010. See
id. ¶ 31. Ms. Herazo “has been a paralegal with Pelton Graham since August 2013,” “is fluent in
Spanish and English,” and was an attorney in Colombia for ten years before coming to the
United States. See id. ¶ 32. Plaintiffs’ counsel’s firm, Pelton Graham LLC, “has substantial
experience prosecuting employment wage and hour actions,” which constitute “approximately
90%, if not more, of the firm’s practice.” See id. ¶ 27.
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The Court finds that $450 for Mr. Pelton, $350 for Mr. Graham, and $300 for Ms.
Albertsen are reasonable hourly rates for attorneys of their experience, in accordance with other
courts in this Circuit. See, e.g., Campos v. BKUK 3 Corp., No. 18 Civ. 4036 (JGK) (KHP),
2021 WL 3540243, at *12 (S.D.N.Y. Aug. 10, 2021) (in 2021, awarding Mr. Pelton $450 per
hour, Mr. Graham $350 per hour, and Ms. Albertson $300 per hour) (collecting cases), R&R
adopted, 2021 WL 3863198 (S.D.N.Y. Aug. 30, 2021), and R&R adopted sub nom., 2021 WL
3863266 (S.D.N.Y. Aug. 30, 2021); accord Kim, 2025 WL 2783273, at *5 (awarding hourly rate
of $500 to a wage-and-hour practitioner with 23 years’ experience).
Although the Court recognizes Ms. Herazo’s language skills and experience, the Court
reduces Ms. Herazo’s hourly rate to $125, which is toward the higher end of compensation for a
paralegal working on wage-and-hour cases. See, e.g., Kim, 2025 WL 2783273, at *3 (awarding
$125 per hour to paralegal with 12 years of experience and language skills).
b. Reasonableness Of Time Billed
“To determine whether the number of hours spent by Plaintiff[s’] counsel was
reasonable, the Court must ‘use [its] experience with the case, as well as [its] experience with the
practice of law, to assess the reasonableness of the hours spent . . . in a given case.’” Litkofsky
v. P & L Acquisitions, LLC, No. 15 Civ. 5429 (DRH) (AKT), 2016 WL 7167955, at *10
(E.D.N.Y. Aug. 19, 2016) (quoting Fox. Indus., Inc. v. Gurovich, No. 3 Civ 5166 (TCP)
(WDW), 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005)), R&R adopted, 2016 WL 7168069
(E.D.N.Y. Dec. 8, 2016). “When considering an application for attorneys’ fees, the Court
should exclude excessive, redundant, or otherwise unnecessary hours.” Taylor v. Cooper Power
& Lighting, No. 22 Civ. 2236 (HG) (SIL), 2025 WL 2524467, at *4 (E.D.N.Y. July 14, 2025)
(quotation omitted).
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The Court finds that Plaintiffs’ counsel’s relative inefficiency in prosecuting this case,
particularly with respect to moving for default judgment,19 warrants an across-the-board
reduction in fees awarded. The Court deems 15% to be a reasonable reduction of the 168.64
hours of work.
The Court thus calculates Plaintiffs’ attorneys’ fees award as follows.
Billing Professional Hourly Rate Hours Expended Hours
Awarded
Fees Awarded
Brent Pelton $450 1.75 1.49 $670.50
Taylor Graham $350 16.16 13.74 $4,809.00
Joanne Albertsen $300 88.2 74.97 $22,491.00
Belinda Herazo $125 62.29 52.95 $6,618.75
TOTALS $34,589.25
Accordingly, this Court respectfully recommends that Plaintiffs be awarded attorneys’
fees in the amount of $34,589.25.
19 For example, on September 8, 2022, the Clerk of Court entered a certificate of default against
all Defendants, ECF No. 38, and the Court thereafter gave Plaintiffs a deadline to file a motion
for default judgment by October 31, 2022, see 10/6/2022 Order. After Plaintiffs filed the
motion, the Court held a motion hearing on August 29, 2023, during which the Court informed
Plaintiffs that “a motion to strike Mr. Ripon’s answer is necessary before Plaintiffs can properly
present the motion for a default judgment against Mr. Ripon.” 8/29/2024 Order. The default
motion was administratively closed with leave to reopen, upon the Court’s grant of a motion to
strike Mr. Ripon’s answer and a supplement to the motion including proof of compliance with
the SCRA and an updated damages spreadsheet. See id.
After Mr. Ripon’s answer was stricken, see ECF No. 57, and the Clerk of Court entered default
against Mr. Ripon, see ECF No. 60, Plaintiffs filed supplemental materials in support of their
motion for default judgment, see ECF Nos. 61-64. As discussed above, due to substantial
deficiencies in Plaintiffs’ damages calculations and declarations, this Court recommended that
the motion be granted as to liability but denied as to damages. See R&R, 2025 WL 1032031, at
*28-29. These issues caused the Court to expend resources substantially more on the default
motion practice than should have been required by a default judgment motion.
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2. Costs
“As a general matter, a prevailing plaintiff in an action under the FLSA or New York’s
Labor Law is entitled to recover costs from the defendant.” Santillan v. Henao, 822 F. Supp. 2d
284, 301 (E.D.N.Y. 2011); see 29 U.S.C. § 216(9b); N.Y. Lab. L. § 663(1). “Costs relating to
filing fees, process servers, postage, and photocopying are ordinarily recoverable.” Camillo v.
Khim’s Millennium Mkt., Inc., No. 22 Civ. 7846 (AMD) (PK), 2025 WL 951265, at *17
(E.D.N.Y. Mar. 13, 2025) (quoting Hernandez v. Delta Deli Market Inc., No. 18 Civ. 375 (ARR)
(RER), 2019 WL 643735, at *10 (E.D.N.Y. Feb. 12, 2019)), R&R adopted sub nom., 2025 WL
948125 (E.D.N.Y. Mar. 28, 2025)
In support of their request for reimbursement of costs in the amount of $5,953.03,
Plaintiffs have submitted a spreadsheet of items which include costs related to mailing motion
papers and the Court’s Orders, service of process and the filing fee. See ECF No. 75-6. The
Court finds these to be reasonable litigation expenses. See, e.g., Camillo, 2025 WL 95126, at
*17; Gao v. Jian Song Shi, No. 18 Civ. 2708 (ARR) (LB), 2021 WL 1949275, at *19 (E.D.N.Y.
Apr. 30, 2021), R&R adopted sub nom., 2021 WL 1946322 (E.D.N.Y. May 15, 2021).
Accordingly, this Court respectfully recommends that Plaintiffs be awarded $5,953.03 in
costs.
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III. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Motion be
granted in large part and denied as to certain discrete issues, and that Defendants be held jointly
and severally liable for Plaintiffs’ damages as follows:
- As to Santos Amador:
o $31,312.44 in NYLL overtime-wage compensatory damages;
o $31,312.44 in NYLL liquidated damages; and
o $7.72 per day in prejudgment interest from November 23, 2017, until the date of
judgment.
- As to Darwin Ortiz:
o $8,828.00 in NYLL overtime-wage compensatory damages;
o $24,203.16 in NYLL minimum-wage compensatory damages;
o $33,031.16 in NYLL liquidated damages; and
o $8.14 per day in prejudgment interest from January 1, 2020, until the date of
judgment.
- As to Mario Avila:
o $13,887.49 in NYLL overtime-wage compensatory damages;
o $15,641.50 in NYLL minimum-wage compensatory damages;
o $399.25 in NYLL spread-of-hours compensatory damages;
o $29,928.57 in NYLL liquidated damages; and
o $7.38 per day in prejudgment interest from March 3, 2017, until the date of judgment.
- A fifteen percent increase in Plaintiffs’ 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;
- Attorneys’ fees in the amount of $34,589.25;
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- Costs in the amount of $5,953.03; and
- Post-judgment interest on the total amount of damages awarded 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.
IV. OBJECTIONS
This report and recommendation will be filed electronically and will be mailed to
Defendants at their last-known addresses as set forth in Plaintiffs’ affidavit of service of the
motion papers. See ECF No. 76. 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
January 30, 2026
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
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