Rios et al v. Dar Yemma Corp. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
JUAN GUZMAN RIOS, et al.
REPORT AND
Plaintiffs, 	RECOMMENDATION
23 CV 8036 (PKC) (PCG)
-against-
DAR YEMMA CORP., and SABER
BOUTERAA,
Defendants.
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CROSS-GOLDENBERG, United States Magistrate Judge:
On October 27, 2023, plaintiffs Juan Guzman Rios and Bryan Steven Rojana Ciudadania
commenced this action against defendants Dar Yemma Corp. (“Dar Yemma”) and Saber
Bouteraa (“Bouteraa”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 206,
216(b) (“FLSA”), the New York Labor Law, N.Y. Lab. L. §§ 190 et seq., §§ 650 et seq.
(“NYLL”), and the supporting New York Codes, Rules, and Regulations, 12 N.Y.C.R.R. § 146.
(ECF No. 1). Plaintiffs filed an Amended Complaint on February 8, 2024, adding two named
plaintiffs, Yamna Enmar and Mohamed Fekkah, and additional factual allegations, including
allegations under the FLSA brought on behalf of other similarly situated employees. (Am.
Compl.1 )
Currently pending before this Court on referral from the district judge is plaintiffs’
Motion for default judgment against all defendants filed on March 5, 2025. (“Mot.”2 ). This
motion has been referred to the undersigned to prepare a Report and Recommendation. (See
Electronic Order, dated March 7, 2025). For the reasons set forth below, the Court respectfully
1 Citations to “Am. Compl.” refer to plaintiffs’ Amended Complaint, filed on February 8, 2024 (ECF No.
13). 2 Citationts to “Mot.” refer to plaintiffs’ Motion for Default Judgment, filed March 5, 2025 (ECF No. 39).
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recommends that plaintiffs’ motion be granted and that plaintiffs be awarded damages in the
amounts described in this Report and Recommendation.
DISCUSSION
I. 	Default Judgment
A. Legal Standard
The Second Circuit has cautioned that since a default judgment is an “extreme
sanction[,]” it should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277
(2d Cir. 1981). While the Second Circuit has recognized the “push on a trial court to dispose of
cases that, in disregard of the rules, are not processed expeditiously [and] . . . delay and clog its
calendar,” it has held that the district court must balance that interest with its responsibility to
“afford[] litigants a reasonable chance to be heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90,
95–96 (2d Cir. 1993). Thus, considering the “oft-stated preference for resolving disputes on the
merits[,]” default judgments are “generally disfavored[,]” and doubts should be resolved in favor
of the defaulting party. Id. Accordingly, plaintiffs are not entitled to a default judgment as a
matter of right simply because a party is in default. See Erwin DeMarino Trucking Co. v.
Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts must “supervise default
judgments with extreme care to avoid miscarriages of justice”).
The Court has significant discretion to consider a number of factors in deciding whether
to grant a default judgment, including: (1) whether the grounds for default are clearly
established; (2) whether the claims were pleaded in the complaint, thereby placing the defendants
on notice, see Fed. R. Civ. P. 54(c) (stating a “default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings”); King v. STL Consulting LLC, No. 05
CV 2719, 2006 WL 3335115, at *4–5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not
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violated in awarding damages that accrued during the pendency of a litigation, so long as the
complaint put the defendant on notice that the plaintiff may seek such damages); and (3) the
amount of money potentially involved—the more money involved, the less justification for
entering the default judgment. Hirsch v. Innovation Int’l, Inc., No. 91 CV 4130, 1992 WL
316143, at *2 (S.D.N.Y. Oct. 19, 1992). Additionally, the Court may consider whether material
issues of fact remain, whether the facts alleged in the complaint state a valid cause of action,
whether plaintiffs have been substantially prejudiced by the delay involved, and whether the
default judgment might have a harsh effect on the defendants. See Pacific M. Int'l Corp. v.
Raman Int'l Gems, Ltd., 888 F. Supp. 2d 385, 393 (S.D.N.Y. 2012).
The burden is on the plaintiffs to establish their entitlement to recovery. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506
U.S. 1080 (1993). When a default judgment is entered, the defendants are deemed to have
admitted all well-pleaded allegations in the complaint pertaining to liability. See id. For the
purposes of an inquest, a court accepts as true all factual allegations in the complaint, except
those claims relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.
1981).
B. Default Judgment Liability
In this case, plaintiffs allege that defendants violated the FLSA and the NYLL by failing
to pay overtime wages, and by failing to pay plaintiffs for all hours worked, in violation of the
FLSA and NYLL. (Am. Compl. First, Second, Fourth and Fifth Causes of Action). In addition,
plaintiffs allege that defendants failed to pay a spread-of-hours premium in violation of the
NYLL (Am. Compl. Third Cause of Action), failed to provide wage statements upon each
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payment of wages, and failed to provide plaintiffs with a written notice of the information
required by NYLL 195(1) and (3). (Am. Compl. Sixth and Seventh Causes of Action).
1) 	FLSA Claims
To establish a claim under the FLSA, plaintiffs must prove the following: that (1) the
defendant is an enterprise participating in commerce or the production of goods for the purpose
of commerce; (2) the plaintiffs are “employees” within the meaning of the FLSA; and (3) the
employment relationship is not exempted from the FLSA. Edwards v. Community Enters., Inc.,
251 F. Supp. 2d 1089, 1098 (D. Conn. 2003) (citing 29 U.S.C. §§ 206(a), 207(a)); see also Tony
& Susan Alamo Found. v. Secretary of Lab., 471 U.S. 290, 295 (1985).
A defendant is an “[e]nterprise engaged in commerce or in the production of goods for
commerce” if the defendant is an enterprise that:
has employees engaged in commerce or in the production of goods
for commerce, or that has employees handling, selling, or
otherwise working on goods or materials that have been moved in
or produced for commerce by any person; and . . . whose annual
gross volume of sales made or business done is not less than
$500,000.
29 U.S.C. § 203(s)(1)(A).
In their Complaint, plaintiffs allege that the corporate defendant Dar Yemma is a New
York business corporation, organized under the laws of the New York, with its principal
executive office located at 2521 Steinway Street, Astoria, NY 11103. (Am. Compl. ¶ 11). It is
further alleged that Dar Yemma is engaged in interstate commerce because it has employees
engaged in interstate commerce or the production of goods for commerce who sell or otherwise
work with goods or materials that have moved in commerce, and that Den Yemma has a gross
annual volume of sales not less than $500,000. (Id. ¶ 20). Thus, plaintiffs have adequately
alleged that defendant Dar Yemma is a covered enterprise under the FLSA.
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The FLSA defines an “employee” as “any individual employed by an employer.” 29
U.S.C. § 203(e)(1); Edwards v. Community Enters., Inc., 251 F. Supp. 2d at 1098. An
“employer” is “any person acting directly or indirectly in the interest of an employer in relation
to an employee[.]” 29 U.S.C. § 203(d). “Person” is defined as “an individual, partnership,
association, corporation, business trust, legal representative, or any organized group of
persons.” 29 U.S.C. § 203(a). To “employ” “includes to suffer or permit to work.” 29 U.S.C. §
203(g). The FLSA covers both “employees who in any workweek [are] engaged in commerce or
in the production of goods for commerce” and those persons who are “employed in an enterprise
engaged in commerce or in the production of goods for commerce[.]” 29 U.S.C. § 206(a).
Plaintiffs allege in their Complaint that they worked for the defendants as dishwashers,
food preparers, cooks, and cleaners. (Am. Compl. ¶¶ 22, 36, 50, 64). Plaintiffs also allege that
the individual defendant Bouteraa was an owner of the defendant corporation and exercised
operational control over the business, with the power and authority over all personnel and payroll
decisions and the exclusive power to hire, fire and set the wages and work schedules of the
employees. (Id. ¶¶ 13-19). Thus, based on the allegations in the Complaint, plaintiffs qualify as
“employees” and defendants as “employers” under the FLSA. The Court does not find any basis
for exempting the employment relationship at issue from coverage under the FLSA.3
As set forth in more detail below, plaintiffs allege that defendants violated the FLSA by
failing to pay overtime wages for hours worked in excess of 40 hours per week and by failing to
pay proper wages for all hours worked by plaintiffs. (Am. Compl. ¶¶ 27, 29, 41, 43, 55, 57, 69,
70). Since defendants have defaulted, the Court accepts plaintiffs’ uncontested allegations as
3 See 29 U.S.C. § 213(a) setting forth the exemptions under the FLSA.
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true and respectfully recommends that plaintiffs be deemed to have sufficiently set forth the
necessary elements to state a claim under the FLSA.
2) 	NYLL Claims
Plaintiffs also allege that defendants violated the NYLL. The NYLL provides for a
minimum wage and overtime scheme that is “largely similar” to that contained in the FLSA.
Man Wei Shiu v. New Peking Taste Inc., No. 11 CV 1175, 2014 WL 652355, at *10 (E.D.N.Y.
Feb. 19, 2014) (citing Rosas v. Subsational, No. 11 CV 2811, 2012 WL 4891595, at *4 (E.D.N.Y.
Sept. 11, 2012), report and recommendation adopted by, 2012 WL 4866678 (E.D.N.Y. Oct.15,
2012)). Like the FLSA, the NYLL requires employers to pay proper minimum wages and
overtime rates calculated at one-and-one-half times the employees’ regular rate of pay for all
hours worked in a week over 40 hours. See NYLL § 652; 12 N.Y.C.R.R. §§ 142-2.2, 146-1.4;
see, e.g., Charvac v. M & T Proj. Mgrs. of N.Y., Inc., No. 12 CV 5637, 2015 WL 5475531, at *4–
5 (E.D.N.Y. June 17, 2015); see also Chawdhury v. Hamza Exp. Food Corp., No. 14 CV 0150,
2015 WL 5541767, at *4–5 (E.D.N.Y. Aug. 21, 2015), report and recommendation adopted by
2015 WL 5559873 (E.D.N.Y. Sept. 18, 2015).
Moreover, the NYLL requires employers to pay spread-of-hours premiums, see 12
N.Y.C.R.R. §§ 142-2.4, 146-1.6, and the Wage Theft Prevention Act, NYLL §§ 195(1) and
195(3), requires that employers provide employees with notices regarding their wages at the time
of their hiring and wage statements with each payment of wages.
To recover under the NYLL, plaintiffs must prove that they are “employees” and that the
defendants are “employers” as defined by the statute. See Lauria v. Heffernan, 607 F. Supp. 2d
403, 407 (E.D.N.Y. 2009). Unlike the FLSA, the NYLL does not require that a defendant
achieve a certain minimum in annual sales or business to be subjected to the law. See N.Y. Lab.
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Law § 651(6) (defining employer as “any individual, partnership, association, corporation,
limited liability company, business trust, legal representative, or any organized group of persons
acting as [an] employer”). Similarly, an employee is simply defined as “any individual
employed or permitted to work by an employer in any occupation[.]” N.Y. Lab. Law § 651(5).
In this case, plaintiffs’ allegations that they were employed by defendants within the meaning of
the NYLL §§ 2 and 651 suffice to put them under the coverage of the NYLL. (Compl. ¶¶ 51,
52).
3) 	Factual Allegations Regarding Wages Owed
Plaintiffs allege in the Complaint that defendants failed to pay them all wages owed,
failed to pay spread-of-hours premiums, and failed to pay overtime wages pursuant to the NYLL.
(Am. Compl. Second, Third, and Fifth Causes of Action).
Specifically, plaintiff Rios alleges that he was employed by defendants from
approximately December 2022 until October 2023, regularly working six days per week, with a
shift beginning at approximately 12:00 p.m. until 12:00 a.m. or later, for which he received a flat
weekly rate of approximately $700 per week for hours worked in December 2022, and $800 per
week for hours worked between January 2023 to October 2023. (Id. ¶¶ 21, 23, 24, 26).
Although he regularly worked approximately 72 hours per week, he never received time and a
half for hours worked over 40, nor was he paid an extra hour of pay at the minimum wage rate
for each day that he worked over 10 hours in the day. (Id. ¶¶ 25, 27, 28). Plaintiff Rios also
alleges that he was not paid anything at all for the last 10 days that he worked for defendants.
(Id. ¶ 29).
Plaintiff Ciudadania alleges that he was employed from approximately August 2023 until
October 2023, regularly working six days per week, with a shift beginning at approximately 2:00
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p.m. until 12:00 a.m. or later, three days per week, and from approximately 12:00 p.m. until 1:00
a.m. or later the other three days he worked per week. (Id. ¶¶ 35, 37, 38). Although he regularly
worked 69 hours or more per week, he received a flat weekly rate of approximately $600 per
week for all hours worked during his employment. (Id. ¶¶ 39, 40). He alleges that he never
received time and a half for hours worked over 40, nor was he paid an extra hour of pay at the
minimum wage rate for each day that he worked over 10 hours in the day. (Id. ¶¶ 41, 42).
Plaintiff Ciudadania also claims that he was not paid anything at all for the last 8 days that he
worked for defendants. (Id. ¶ 43).
Plaintiff Enmar alleges that she was employed by defendants from approximately
September 2023 until October 2023, regularly working seven days per week, with a shift
beginning at approximately 9:00 a.m. until 5:00 p.m. or later five days per week, and from 6:00
p.m. to 9:00 p.m. or later the other two days per week. (Id. ¶¶ 49, 51, 52). Although she
regularly worked 48 to 64 hours or more per week, she received a flat weekly rate of
approximately $1,000 per week for all hours worked during her employment. (Id. ¶¶ 53, 54).
She alleges that she never received time and a half for hours worked over 40, nor was she paid an
extra hour of pay at the minimum wage rate for each day that she worked over 10 hours in the
day. (Id. ¶¶ 55, 56). Plaintiff Enmar also claims that she was not paid anything at all for the last
3 weeks of work, nor was she reimbursed for approximately $200 of out-of-pocket work
materials.4 (Id. ¶ 57).
Plaintiff Mohamed Fekkak also claims he was not paid overtime, and that he was not
compensated at all for his last three weeks of work. (Id. ¶¶ 69, 70). He claims that he worked
4 Although plaintiffs include the fact that plaintiff Enmar was not reimbursed for out-of-pocket expenses, they do not
bring a claim for these funds. The $200 expense is also not included in plaintiffs’ damages chart. Accordingly, the
Court does not include this amount in its damages analysis below.
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for defendants from October 2022 until August 2023, working five to six days per week, with
shifts beginning at 9:00 a.m. and ending at 5:00 p.m., and receiving a flat weekly rate of $1,000
from October 2022 until December 2022, increasing to $1,200 for all hours worked in a week
from January 2023 until August 2023. (Id. ¶¶ 63-68). Even though he sometimes worked 48
hours per week, he never received overtime pay, and he was not paid anything at all for his last
three weeks of work. (Id. ¶ 70).
Based on these uncontested allegations, the Court finds that plaintiffs have adequately
alleged that defendants were their employers and that they were employees under the NYLL.
Moreover, the allegations in the Complaint are sufficient to state a claim that plaintiffs were not
properly compensated for all hours worked and were not properly paid overtime at one and a half
times their regular hourly rate for certain periods in their employment. Thus, taking plaintiffs’
allegations as true, plaintiffs have adequately pleaded violations of the FLSA and NYLL wage
and overtime provisions.
4) 	Wage Theft Prevention Act Claims
In addition to alleging unpaid wage, overtime and spread-of-hours claims, plaintiffs
allege that they were not provided with proper notices as required by the Wage Theft Prevention
Act (“WTPA”), NYLL §§ 195(1), 195(3).
The WTPA requires that employers provide employees with notices regarding their wages
at the time of their hiring and wage statements with each payment of wages. NYLL §§ 195(1)
and 195(3). The notice must contain the rate or rates of pay; whether the employee was to be
paid by the hour, shift, day, or week; any allowances claimed as part of the minimum wage; the
regular pay day; the name of the employer; the physical address of the employer’s main office;
and the employer’s telephone number in both English and the employee’s primary language, if
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different from English. Id. § 195(1)(a). The wage statement must include “the dates of work
covered by that payment of wages; name of employee; name of employer; address and phone
number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day,
week, salary, piece, commission, or other; gross wages; deductions;” and certain allowances. Id.
§ 195(3).
The Supreme Court explained in TransUnion LLC v. Ramirez, that “Congress’s creation
of a statutory prohibition or obligation and a cause of action does not relieve courts of their
responsibility to independently decide whether a plaintiff has suffered a concrete harm under
Article III.” 594 U.S. 413, 426 (2021). The Supreme Court clarified that “[o]nly those plaintiffs
who have been concretely harmed by a defendant’s statutory violation may sue that private
defendant over that violation in federal court.” 	Id. at 427 (emphasis in original). Applying
TransUnion to WTPA claims, the Second Circuit in Guthrie v. Rainbow Fencing Inc. recently
declared that in order to bring a claim under Section 195 of the NYLL, “a plaintiff must show
some causal connection between the lack of accurate notices and the downstream harm.” 113
F.4th 300, 308 (2d Cir. 2024). Thus, after Guthrie, alleging only a statutory violation of the
WTPA is insufficient. Plaintiffs sufficiently allege an injury-in-fact when they claim, for
example, that the failure to notify “prevented the employee from obtaining full payment of
wages in a timely fashion.” Id. at 309.
Here, plaintiffs allege that defendants willfully failed to post wage notices of the
minimum wage and overtime wage requirements and to provide wage notices at the time of hire
to their employees, including plaintiffs, or at any time during their employment. (Am. Compl.
¶¶ 30, 31, 44, 45, 58, 59, 71, 72). The plaintiffs further allege that they were not provided with
wage statements that included all hours worked and all wages received each week. (Id. ¶¶ 32,
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46, 60, 73). Each plaintiff alleges that he or she suffered a concrete harm as a direct result of
defendants’ failure to provide these notices and wage statements because they were unable to
identify the employer to remedy the compensation problems, lacked knowledge about the rates
of pay they were actually receiving and/or should have been receiving, and were unable to
determine their hourly rates of pay to see if they were being properly paid under the FLSA and
NYLL – which they were not. (Id. ¶¶ 33, 34, 47, 48, 61, 62, 74, 75).
Based on these allegations, plaintiffs’ Complaint adequately alleges downstream harm,
and thus, the Court finds that plaintiffs have sufficiently alleged an injury flowing from
defendants’ violations of the WTPA.
Accordingly, based on these uncontested allegations, the Court respectfully recommends
that plaintiffs be deemed to have adequately alleged the elements necessary to state their claims
under the NYLL.
C. Default Determination
Based upon a review of the allegations in the Complaint, which are undisputed at this
time, the Court finds that plaintiffs have sufficiently established liability under both the FLSA
and NYLL, warranting entry of a default judgment. See 29 U.S.C. § 207(a)(1).
Here, it is beyond dispute that defendants are in default. Although it appears that
defendants were properly served with the Summons and Amended Complaint, they failed to file
an answer or otherwise respond to the pleadings. Moreover, in this case, defendant Bouteraa was
given several opportunities to submit motion papers explaining why a default should not enter
against him and he was advised that the failure of the corporate defendant to obtain counsel in
this case would constitute a failure to defend because corporate defendants, as corporations,
cannot proceed in federal court pro se. See Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20,
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22 (2d Cir. 1983) (discussing the rationale for requiring corporations, as “artificial” entities, to
appear through counsel only); see also Shapiro, Bernstein & Co. v. Continental Record Co., 386
F.2d 426, 427 (2d Cir. 1967) (per curiam) (stating that “it is settled law that a corporation cannot
appear other than by its attorney”). Not only did defendant Bouteraa fail to respond to the
directives of the Court, but he also failed to respond to plaintiffs’ request that default judgment
be entered, see Hirsch v. Innovation Int’l, Inc., 1992 WL 316143, at *2 (holding that defendant’s
“default is crystal clear—it does not even oppose this motion”), and he did not submit papers in
response to plaintiffs’ motion for default judgment.
While defendant Bouteraa moved to vacate the default entered against him (ECF No. 43),
Magistrate Judge Cheryl L. Pollak found that not only had Bouteraa failed to file a motion to
vacate as directed by the court on November 15 (see ECF No. 34), but he had not satisfied his
burden of showing that the Clerk’s entry of default should be vacated and found defendant
Bouteraa’s default was willful. (ECF No. 50, Report and Recommendation). Defendant
Bouteraa and Dar Yemma remained unrepresented by counsel, failed to communicate with the
court about changes in address, or communicate whatsoever, until the last possible minute, and
failed to comply with court orders and obligations. (Id. at 14) Moreover, Bouteraa had not
established, via evidence or any affidavit, that he has meritorious defenses against plaintiffs’
claims. (Id. at 17). Thus, plaintiffs’ claims and evidence of damages are undisputed. Judge
Pollak’s recommendation that Bouteraa’s motion to vacate default be denied was adopted by the
district court on November 14, 2025. (Electronic Order, dated November 14, 2025).
Given the numerous opportunities afforded to defendants, and their apparent lack of
interest in participating in these proceedings, the Court finds no compelling reason to delay the
case any further and finds that default is appropriate here.
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D. Liability of the Individual Defendants
Individuals may be held jointly and severally liable under the NYLL and the FLSA if
they meet the statutes’ definitions of “employer.” Rodriguez v. Almighty Cleaning, Inc., 784 F.
Supp. 2d 114, 128 (E.D.N.Y. 2011). As articulated above, the allegations demonstrate that
individual defendant Bouteraa was an employer within the meaning of the NYLL and the FLSA,
and thus, it is respectfully recommended that he be held jointly and severally liable with the
corporate defendant Dar Yemma, and that a default judgment enter against all defendants.
II. 	Damages
A. Legal Standard
When a default judgment is entered, the defendants are deemed to have admitted all well-
pleaded allegations in the Complaint pertaining to liability. See Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d at 158; Montcalm Publ’g Corp. v. Ryan, 807 F. Supp. 975, 977
(S.D.N.Y. 1992). However, the plaintiff must still prove damages in an evidentiary proceeding at
which the defendants can contest the claimed damages. See Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d at 158. “While a default judgment constitutes an admission of
liability, the quantum of damages remains to be established by proof unless the amount is
liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d
Cir. 1974).
When a court enters a default judgment and the damages do not consist of a sum certain,
the Federal Rules of Civil Procedure provide that “[t]he Court may conduct hearings or make
referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate
judgment, it needs to . . . determine the amount of damages[.]” Fed. R. Civ. P. 55(b)(2)(B).
While “the court must ensure that there is a basis for the damages specified in a default
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judgment, it may, but need not, make the determination through a hearing.” Fustok v.
Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases), aff’d, 873
F.2d 38 (2d Cir. 1989). Here, the plaintiffs have provided reasonably detailed affidavits in
support of their request for damages. Thus, the Court sees no reason to delay a determination of
plaintiffs’ damages.5
B. Damages Requested by Plaintiffs
The NYLL and the FLSA are analytically nearly identical with respect to overtime
claims. D’Arpa v. Runway Towing Corp., No. 12 CV 1120, 2013 WL 3010810, at *18 (E.D.N.Y.
June 18, 2013). Like the FLSA, the NYLL requires that employees be compensated at an
overtime rate of one-and-one-half times their regular hourly pay for time worked in excess of 40
hours in a week. See N.Y. Lab. Law § 160; 12 N.Y.C.R.R. § 142-2.2; see also Noble v. 93 Univ.
Place Corp., 303 F. Supp. 2d 365, 376 (S.D.N.Y. 2003).
Accordingly, for the reasons discussed above, the Court finds that plaintiffs have
adequately alleged NYLL violations for defendants’ failure to pay plaintiffs one and one-half
their regular rate of pay for overtime worked. The Court similarly finds that plaintiff has
adequately alleged claims under New York’s Wage Theft Prevention Act for the reasons
discussed above.
Under the FLSA, a plaintiff-employee generally “has the burden of proving that he
performed work for which he was not properly compensated.” Santillan v. Henao, 822 F. Supp.
2d 284, 293-94 (E.D.N.Y. 2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946), superseded on other grounds by, 29 U.S.C. § 251, et seq.). The Supreme Court in
5 Although the plaintiffs have described their motion as a motion for a “default judgment in a sum certain,”
which is a motion for a judgment to be entered automatically by the Clerk of Court, motions for damages under the
FLSA and NYLL are not the equivalent of a sum certain and require review by the Court.
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Anderson v. Mt. Clemens Pottery Co. noted, however, that “employees seldom keep . . . records
[of hours worked] themselves; even if they do, the records may be and frequently are
untrustworthy.” 328 U.S. at 687. By defaulting, defendant has “deprived the plaintiff of the
necessary employee records required by the FLSA, thus hampering plaintiff’s ability to prove his
damages.” Santillan v. Henao, 822 F. Supp. 2d at 294. In default cases, the Supreme Court has
held that “an employee has carried out his burden if he proves that he has in fact performed work
for which he was improperly compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference.” Tran v. Alphonse
Hotel Corp., 281 F.3d 23, 31 (2d Cir. 2002) (quoting Anderson v. Mt. Clemens Pottery Co., 328
U.S. at 687), overruled on other grounds by, Slayton v. American Express Co., 460 F.3d 216 (2d
Cir. 2006).
In light of this holding, courts in this Circuit have held that where a defendant-employer
defaults, a plaintiff may meet this burden of proof “by relying on his recollection alone.” Doo
Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005). Otherwise, defendants in
FLSA cases would stand to benefit from choosing not to cooperate with discovery or litigation
efforts, and “[o]ne should not be permitted to profit by its own wrongful act.” Boyke v. Superior
Credit Corp., No. 01 CV 0290, 2006 WL 3833544, at *5 (N.D.N.Y. Dec. 28, 2006) (citing 29
U.S.C. § 211(c), which requires that employers “make, keep, and preserve . . . records of the
persons employed by him and of the wages, hours, and other conditions and practices of
employment”); see also Park v. Seoul Broad. Sys. Co., No. 05 CV 8956, 2008 WL 619034, at *7
(S.D.N.Y. Mar. 6, 2008) (holding that courts should apply a “special burden-shifting standard”
where employers fail to comply with this statutory duty of record-keeping).
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New York law also requires that employers keep various detailed employment records.
Like the FLSA, the NYLL requires that employers keep employment records in their course of
business relating to employees’ rates of pay, hours, dates of work, and payroll, among other
information. See N.Y. Lab. Law § 195(1)(a) (requiring an employer to “provide his or her
employees, in writing . . . a notice containing . . . the rate or rates of pay and basis thereof,
whether paid by the hour, shift, day, week, salary, piece, commission, or other”); id. § 195(2)
(requiring employers to notify employees in writing of any changes at least 7 calendar days prior
to the time of such changes); id. § 195(3) (requiring employers to “furnish each employee with a
statement with every payment of wages, listing . . . the dates of work[;] . . . gross wages;
deductions; allowances, if any, claimed as part of the minimum wage; . . . and net wages”); id.
§ 195(4) (requiring employers to “establish, maintain[,] and preserve for not less than six years . .
. payroll records showing for each week worked the hours worked; . . . gross wages; deductions; .
. . and net wages for each employee”). Thus, where the defendant has failed to maintain proper
records, the burden of proving that plaintiff was paid properly falls on the defendant. See Marin
v. JMP Restoration Corp., No. 09 CV 1384, 2012 WL 4369748, at *6 (E.D.N.Y. Aug. 24, 2012)
(explaining that “[t]o determine NYLL overtime damages, courts use the same burden-shifting
scheme employed in FLSA actions”).
Thus, under both federal and state laws, defendant-employers have an obligation to keep
records, and by virtue of defendant’s default, plaintiffs’ “recollection and estimates of hours
worked are presumed to be correct.” Liu v. Jen Chu Fashion Corp., No. 00 CV 4221, 2004 WL
33412, at *3 (S.D.N.Y. Jan. 7, 2004); accord Chao v. Vidtape, Inc., 196 F. Supp. 2d 281, 293-94
(E.D.N.Y. 2002). Courts have applied this same presumption of correctness to a plaintiff’s
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recollection of wages earned. See, e.g., Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 84
(E.D.N.Y. 2012).
Here, because defendants are alleged to have failed to meet their obligation to provide
plaintiffs with proper wage records, the only evidence offered to support plaintiffs’ claim that
they were paid less than they were entitled to under the law is based on plaintiffs’ statements.
Given that the defendants have not appeared in this action to challenge plaintiffs’ claims, the
Court presumptively finds plaintiffs’ evidence as to hours worked and wages paid credible and
bases its analysis and recommendation on plaintiffs’ recollection.
C. Plaintiffs’ Damages Calculations for Unpaid Wages and Overtime
Plaintiffs seek reimbursement for the unpaid wages that they should have received
pursuant to the NYLL and the FLSA. (See Am. Compl. ¶¶ 29, 43, 57, 70). Each of the four
named plaintiffs allege that there was a period of time toward the end of their employment in
October 2023 that they were not paid anything for days worked. (Id.) They also seek unpaid
overtime wages for hours worked over 40 in a week, and unpaid spread-of-hours wages equal to
one hour of pay for every day that they worked more than 10 hours, calculated using the
applicable minimum hourly wage rate in effect at the time. Under the NYLL, for the hours
worked in New York City for large employers of 11 or more employees, the basic minimum
hourly wage rate was $15 per hour for hours during this period. N.Y. Lab. Law § 652(1)(a)(i).
1) 	Plaintiff Rios
Plaintiff Rios seeks unpaid overtime wages for approximately 4.29 weeks worked
between December 1, 2022 and December 31, 2022. (Pls.’ Ex. 40-12 at 2). Plaintiff Rios claims
that he worked 72 hours per week during this period at a regular weekly rate of $700—an
amount equal to $17.50 per hour for the first 40 hours. (Id.) Of the remaining 32 hours of work,
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plaintiff claims that he was never paid time and a half. (Id.) His overtime rate, calculated as one
and a half times his regular rate of $17.50, is $26.25 per hour. Thus, plaintiff Rios seeks
overtime for the period of December 1, 2022 to December 31, 2022 calculated at the rate of
$26.25 per hour, multiplied by 32 hours per week and by 4.29 weeks worked, for a total of
$3,603.60.
Plaintiff Rios also seeks unpaid overtime wages for the 41 weeks worked between
January 1, 2023 to October 15, 2023. (Id.) During this period, plaintiff Rios continued working
72 hours per week and his regular weekly rate raised to $800—an amount equal to $20.00 per
hour for the first 40 hours worked. (Id.) His overtime rate during this period was thus $30.00
per hour. Thus, plaintiff Rios seeks damages for the period of January 1, 2023 to October 15,
2023 calculated at the rate of $30.00 per hour, multiplied by 32 hours per week and by 41 weeks
worked, for a total of $39,360. Thus, plaintiff Rios is owed $42,963.60 in total unpaid overtime.
He is also owed spread-of-hours pay for every day he worked more than 10 hours.
Plaintiff claims to have worked at least 10 hours a day, six days a week, for the entirety of his
45.43 weeks worked. (Id.) Thus, his spread-of-hours owed is calculated by multiplying six days
per week by 45.43 weeks and by the $15.00 minimum wage rate in effect under the NYLL, for a
total of $4,088.70.
Having reviewed plaintiffs’ submissions and calculations, the Court respectfully
recommends that plaintiff Rios be awarded $42,963.60 in unpaid overtime wages and $4,088.70
in unpaid spread-of-hours pay.
Plaintiff Rios also seeks damages for unpaid wages for the last 10 days of his
employment during which time he received no wages at all. In the damages chart provided by
plaintiffs, Rios calculates the amount owed for unpaid wages as $1,333.33. (Id.) In the note to
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the calculations, the chart states that the $1,333.33 was calculated by multiplying the regular pay
rate ($133.33) by 10 days. (Id.) Aside from the unpaid overtime wages calculated above, it
appears that plaintiff is not seeking overtime wages for the ten-day period when he received no
pay at all, although nothing in the papers submitted in connection with the inquest explicitly
states this. However, since plaintiff is not requesting more than he is entitled to under the
allegations in the Complaint, the Court respectfully recommends that plaintiff Rios receive an
amount of $1,333.33 for the last ten days of employment when he was not paid at all.
Accordingly, it is respectfully recommended that plaintiff Rios be awarded a total of
$48,385.63 in unpaid wages, unpaid overtime, and spread of hours pay.
Additionally, the Court finds that plaintiff Rios has alleged facts sufficient to assert
standing under the WTPA. He is therefore entitled to receive an award of $10,000 in statutory
damages, representing $5,000 owed for failure to provide a proper wage notice pursuant to
NYLL § 195(1), and an additional $5,000 for defendants’ failure to provide proper wage
statements as required by NYLL § 195(3).
In total, the Court respectfully recommends that plaintiff Rios be awarded $58,385.63 for
the alleged violations of the NYLL.
2) 	Plaintiff Ciudadania
Plaintiff Ciudadania seeks unpaid overtime wages for 10.71 weeks worked between
August 1, 2023 and October 15, 2023. (Pls.’ Ex. 40-12 at 3). Plaintiff Ciudadania claims that
during this time, he worked a total of 69 hours per week at a regular weekly rate of $600—an
amount equal to $15.00 per hour for the first 40 hours. (Id.) Of the remaining 29 hours of work,
plaintiff claims that he was never paid time and a half. (Id.) His overtime rate, calculated as one
and a half times his regular rate of $15.00 per hour, is $22.50 per hour. Thus, plaintiff
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Ciudadania seeks overtime for the period of August 1, 2023 to October 15, 2023 calculated at the
rate of $22.50 per hour, multiplied by 29 hours of overtime per week and by 10.71 weeks
worked, for a total of $6,988.27.
Plaintiff Ciudadania is also owed spread-of-hours pay for every day he worked more
than 10 hours. He claims to have worked at least 10 hours per day, three days per week, for the
entirety of his 10.71 weeks worked. (Id.) Thus, his spread-of-hours owed is calculated by
multiplying three days per week by 10.71 weeks and by the $15.00 minimum wage rate in effect
under the NYLL, resulting in a total of $481.95.
Having reviewed plaintiffs’ submissions and calculations, the Court respectfully
recommends that plaintiff Ciudadania be awarded $6,988.27 in unpaid overtime wages and
$481.95 in unpaid spread-of-hours pay.
Plaintiff Ciudadania also seeks damages for unpaid wages for the last 8 days of his
employment during which time he received no wages at all. In the damages chart provided by
plaintiffs, Ciudadania calculates he is owed $800 in unpaid wages for this period. (Id.) In the
note to the calculations, the chart states that the $800 was calculated by dividing his regular
weekly rate of $600 by 6 days per week, to obtain a daily rate of $100, which was then
multiplied by the number of days for which he received no pay at all – 8 days. (Id.) Aside from
the unpaid overtime wages calculated above, it appears that plaintiff is not seeking overtime
wages for the 8-day period when he received no pay at all, although nothing in the papers
submitted in connection with the inquest explicitly states this. However, since plaintiff is not
requesting more than he is entitled to under the allegations in the Complaint, the Court
respectfully recommends that plaintiff Cidudadania receive an amount of $800 for the last 8 days
of employment when he was not paid at all.
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Accordingly, it is respectfully recommended that plaintiff Ciudadania be awarded a total
of $8,270.22 in unpaid wages, unpaid overtime, and spread-of-hours pay.
In addition, the Court finds that plaintiff Ciudadania has alleged facts sufficient to assert
standing under the WTPA, and therefore is entitled to receive an award of $10,000 in statutory
damages, representing $5,000 owed for failure to provide a proper wage notice pursuant to
NYLL § 195(1) and an additional $5,000 for defendants’ failure to provide proper wage
statements as required by NYLL § 195(3).
In total, the Court respectfully recommends that plaintiff Ciudadania be awarded
$18,270.22 for the alleged violations of the NYLL.
3) 	Plaintiff Enmar
Plaintiff Enmar seeks unpaid overtime wages for 8.57 weeks worked between September
1, 2023 and October 31, 2023. (Pls.’ Ex. 40-12 at 4). Plaintiff Enmar claims that during this
time, she worked a total of 48-64 hours per week, or an average of 56 hours per week,6 at a
regular weekly rate of $1,000—an amount equal to $25.00 per hour for the first 40 hours. (Id.)
Of the remaining 16 hours of work, plaintiff claims that she was never paid time and a half. Her
overtime rate, calculated as one and a half times her regular rate of $25.00 per hour, is $37.50 per
hour. Thus, plaintiff Enmar seeks overtime for the period of September 1, 2023 through October
31, 2023 calculated at the rate of $37.50 per hour, multiplied by 16 overtime hours per week and
by 8.57 weeks worked, resulting in a total of $5,142.
Plaintiff Enmar is also owed spread-of-hours pay for every day she worked more than 10
hours. Plaintiff Enmar claims to have worked at least 10 hours per day, two days per week, for
the entirety of her 8.57 weeks of employment. (Id.) Accordingly, the Court calculates the
6 Other courts in this district have applied the average overtime hours worked to calculate overtime owed. See, e.g.,
Jimenez v. Green Olive Inc., 744 F. Supp. 3d 221, 249, 254 (E.D.N.Y. 2024).
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spread-of-hours owed by multiplying two days worked per week by 8.57 weeks worked and by
the $15.00 minimum wage rate in effect under the NYLL, for a total of $257.10.
Having reviewed plaintiffs’ submissions and calculations, the Court respectfully
recommends that plaintiff Enmar be awarded $5,142 in unpaid overtime wages and $257.10 in
unpaid spread-of-hours pay.
Plaintiff Enmar also seeks damages for unpaid wages for the last 3 weeks of her
employment during which time she received no wages at all. In the damages chart provided by
plaintiffs, Enmar calculates she is owed $3,000 in unpaid wages for this time. (Id.) In the note
to the calculations, the chart states that the $3,000 was calculated by multiplying her regular
weekly rate of $1,000 by 3 weeks. (Id.) Aside from the unpaid overtime wages calculated
above, it appears that plaintiff is not seeking overtime wages for the 3-week period when she
received no pay at all, although nothing in the papers submitted in connection with the inquest
explicitly states this. However, since plaintiff is not requesting more than she is entitled to under
the allegations in the Complaint, the Court respectfully recommends that plaintiff Enmar receive
an amount of $3,000 for the last 3 weeks of employment when she was not paid at all.
Accordingly, it is respectfully recommended that plaintiff Enmar be awarded a total of
$8,399.10 in unpaid wages, spread-of-hours pay and unpaid overtime.
Additionally, the Court finds that plaintiff Enmar has alleged facts sufficient to assert
standing under the WTPA, and is therefore entitled to receive an award of $10,000 in statutory
damages, representing $5,000 owed for failure to provide a proper wage notice pursuant to
NYLL § 195(1) and an additional $5,000 for defendants’ failure to provide proper wage
statements as required by NYLL § 195(3).
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In total, the Court respectfully recommends that plaintiff Enmar be awarded $18,399.10
for the alleged violations of the NYLL.
4) 	Plaintiff Fekkak
Plaintiff Fekkak seeks unpaid overtime wages for 65.14 weeks worked between October
1, 2022, and December 31, 2022.7 (Pls.’ Ex. 40-12 at 5). Because there were only 13 weeks in
that period, plaintiff could not have worked the number of weeks claimed. Accordingly, the
Court calculates that plaintiff worked 13 weeks during this period. Plaintiff Fekkak claims that
during this time, he worked a total of 40-48 hours per week, or an average of 4 hours of overtime
per week, at a regular weekly rate of $1,000—an amount equal to $25.00 per hour for the first 40
hours. (Id.) Of the remaining 4 hours of work, plaintiff claims that he was never paid time and a
half. (Id.) His overtime rate, calculated as one and a half times his regular rate of $25.00 per
hour, is $37.50 per hour. Thus, plaintiff Fekkak seeks damages calculated at the rate of $37.50
per hour multiplied by 4 overtime hours worked per week and by 13 weeks worked, for a total of
$1,950.
Plaintiff Fekkak also seeks unpaid overtime wages for 34.57 weeks worked between
January 1, 2023 and August 31, 2023. (Id.) During this time, plaintiff Fekkak continued to work
an average of 4 overtime hours per week and was paid $1,200 per week—an amount equal to
$30.00 per hour for the first 40 hours worked. His overtime rate during this period is therefore
$45.00 per hour. Because plaintiff Fekkak worked 34.57 weeks during this period, he is entitled
to $6,222.60. Thus, plaintiff Fekkak is owed $8,172.60 in combined total overtime wages.
7 There appears to be a typographical error in the date range for the first period which the chart shows as
running from 1/10/22 to “31/12/23.” (ECF No. 40-12 at 5). Since the date range for the second period on the chart
runs from 1/1/23 to 31/8/23,” the Court has assumed that the first date range runs from October 1, 2022 through
December 31, 2022 and the second date range runs from January 1, 2023 through August 31, 2023. This is
consistent with the allegations in the Amended Complaint. (Am. Compl. ¶¶ 64, 65).
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Plaintiff Fekkak does not seek an award of spread-of-hours pay, but he does seek unpaid
wages for the last three weeks of his employment. In the damages chart provided by plaintiffs,
plaintiff Fekkak calculates the amount owed for unpaid wages as $3,600. (Id.) This amount was
reached by multiplying his regular rate of $1,200 by 3 weeks worked, totaling $3,600 in unpaid
wages.
Having reviewed plaintiffs’ submissions and calculations, the Court respectfully
recommends that plaintiff Fekkak be awarded $11,772.60 in unpaid overtime and unpaid wages.
Additionally, the Court finds that plaintiff Fekkak has alleged facts sufficient to assert
standing under the WTPA. He is therefore entitled to receive an award of $10,000 in statutory
damages, representing $5,000 owed for failure to provide a proper wage notice pursuant to
NYLL § 195(1) and an additional $5,000 for defendants’ failure to provide proper wage
statements as required by NYLL § 195(3).
In total, the Court respectfully recommends that plaintiff Fekkak awarded $29,593.60 for
the alleged violations of the NYLL.
D. Liquidated Damages
Plaintiffs request an award of liquidated damages for defendants’ wage violations under
the FLSA and NYLL. (Am. Compl. at Prayer For Relief (e)). The FLSA and NYLL provide for
liquidated damages for wage claim violations, calculated in an amount equal to 100% of the
wage underpayments. 29 U.S.C. § 216(b); N.Y. Lab. Law §§ 198(1-a) and 663(1). Prior to
November 24, 2009, an employee could recover liquidated damages under the NYLL only if the
underpayment was found to be willful. N.Y. Lab. Law § 663(1) (1967). However, an
amendment to the NYLL, effective November 24, 2009, “incorporated the federal standard” and
shifted the burden of proving good faith to the employer. Hengjin Sun v. China 1221, Inc., No.
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12 CV 7135, 2016 WL 1587242, at *3 (S.D.N.Y. Apr. 19, 2016) (quoting Galeana v. Lemongrass
on Broadway Corp., 120 F. Supp. 3d 306, 317 (S.D.N.Y. 2014)). Under both the FLSA and
NYLL, the employer bears the burden of proving good faith and reasonableness. Under the
NYLL’s liquidated damages provision, “courts have not substantively distinguished the federal
standard from the current state standard of good faith.” Inclan v. New York Hosp. Grp., Inc., 95
F. Supp. 3d 490, 505 (S.D.N.Y. 2015) (citing He v. Home on 8th Corp., No. 09 CV 5630, 2014
WL 3974670, at *7 n.19 (S.D.N.Y. Aug. 13, 2014)); Eschmann v. White Plains Crane Serv., Inc.,
No. 11 CV 5881, 2014 WL 1224247, at *9 (E.D.N.Y. Mar. 24, 2014). Accordingly, the
employer’s burden of proving good faith “is a difficult one, with double damages being the norm
and single damages the exception.” Gortat v. Capala Bros., 949 F. Supp. 2d 374, 380 (E.D.N.Y.
2013) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)) (awarding
100% liquidated damages under the FLSA standard). Although defendant may be liable under
both statutes, plaintiffs may only recover once for liquidated damages. Rana v. Islam, 887 F.3d
118, 123 (2d Cir. 2018).
Further, liquidated damages are only available on wage claims found under the applicable
statute. See Douglas v. Spartan Demolition Co. LLC, No. 15 CV 5126, 2018 WL 4521212, at *6
(S.D.N.Y. Sept. 21, 2018). 8 Thus, plaintiffs are entitled to recover liquidated damages for their
unpaid regular wage and overtime claims. Id. Plaintiffs are also entitled to recover liquidated
damages for their spread-of-hours claims. See Vazquez v. 142 Knickerbocker Enter., Corp., 409
F. Supp. 3d 81, 89–90 (E.D.N.Y. 2018), aff’d sub nom., Vazquez v. Azoulay, 834 Fed. App’x 653
(2d Cir. 2021). Here, since the Court recommends an award of overtime damages and unpaid
8 Liquidated damages are not available for damages under the WTPA. Ge Chun Wen v. Hair Party 24
Hours Inc., No. 15 CV 10186, 2021 WL 3375615, at *11 (S.D.N.Y. May 17, 2021), report and recommendation
adopted sub nom., Wen v. Hair Party 24 Hours Inc., 2021 WL 2767152 (S.D.N.Y. July 2, 2021).
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wages under the NYLL, plaintiffs are entitled to 100% of the damages owed for unpaid overtime
and wages under the NYLL as liquidated damages. See NYLL §§ 198(1-a), 663(1).
Thus, the Court respectfully recommends that plaintiff Rios be awarded $48,385.63;
plaintiff Ciudadania be awarded $8,270.22; plaintiff Enmar be awarded $8,399.10; and plaintiff
Fekkak be awarded $19,593.60 in liquidated damages under the NYLL, representing 100% of
the wages owed.
E. 	Prejudgment Interest
In the Amended Complaint, plaintiffs also seek prejudgment interest. (Am. Compl. at
Prayer For Relief (f)). Prejudgment interest is not available under the FLSA because the federal
statute does not allow an employee to recover “prejudgment interest on any portion of their
recovery for which they have been awarded federal liquidated damages,” since liquidated
damages under the FLSA “are considered compensatory in nature and thus serve as a form of
prejudgment interest.” Yuquilema v. Manhattan’s Hero Corp., No. 13 CV 461, 2014 WL
4207106, at *11 (S.D.N.Y. Aug. 20, 2014) (citations and quotation marks omitted), report and
recommendation adopted, 2014 WL 5039428 (S.D.N.Y. Sept. 30, 2014); Yu G. Ke v. Saigon
Grill, Inc., 595 F. Supp. 2d 240, 261 (S.D.N.Y. 2008). However, the Second Circuit has held
that, as liquidated damages and prejudgment interest are not functional equivalents under the
NYLL, prevailing plaintiffs may recover both for claims brought under the NYLL. Reilly v.
Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999). Prejudgment interest is available
only on a plaintiff’s actual damages under the NYLL, and not on liquidated damages. See
Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 515 (S.D.N.Y. 2017). Prejudgment interest
is also not available for amounts awarded as statutory damages under the WTPA. Ying Ying Dai
v. ABNS NY Inc., 490 F. Supp. 3d 645, 662 (E.D.N.Y. 2020).
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Prejudgment interest under New York Law is governed by Section 5001 of the New York
Civil Practice Law and Rules, which states: “Interest shall be computed from the earliest
ascertainable date the cause of action existed, except that interest upon damages incurred
thereafter shall be computed from the date incurred.” N.Y. C.P.L.R. § 5001(b). However, in
plaintiffs’ motion for default judgment, they have not requested prejudgment interest, nor have
they provided a calculation of said interest. Accordingly, in the absence of a specific request and
supporting calculations, the Court declines to award prejudgment interest at this time.
F. 	Attorneys’ Fees
Plaintiffs may also be entitled to an award of attorneys’ fees under the NYLL and FLSA.
Although the Amended Complaint references attorneys’ fees and costs, plaintiffs have not
requested it in connection with this motion and therefore the Court has not recommended an
award of fees and costs at this time.
G. Automatic Penalty for Failure to Pay
The NYLL provides that, “[a]ny judgment or court order awarding remedies under this
section [sections 198 and 663, as does the judgment applied for herein] shall provide that if 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.
Law §§ 198(4), 663(4). It further provides that costs and attorney’s fees incurred in enforcement
of a judgment shall be awarded to the plaintiff. Id. The Court respectfully recommends that the
district court include such language in its final judgment, should it adopt this Report and
Recommendation.
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CONCLUSION
The Court respectfully recommends that plaintiffs’ motion for entry of a default judgment
be granted, and that plaintiffs be awarded the following damages: (1) $42,963.60 in unpaid
overtime wages, $4,088.70 in spread-of-hours-pay, $1,333.33 in unpaid regular wages,
$48,385.63 in liquidated damages, and $10,000 in statutory damages under the WTPA to plaintiff
Rios; (2) $6,988.27 in unpaid overtime wages, $481.95 in spread-of-hours pay, $800 in unpaid
regular wages, $8,270.22 in liquidated damages, and $10,000 in statutory damages under the
WTPA to plaintiff Ciudadania; (3) $5,142 in unpaid overtime wages, $257.10 in spread-of-hours
pay, $3,000 in unpaid regular wages, $8,399.10 in liquidated damages, and $10,000 in statutory
damages under the WTPA to plaintiff Enmar; and (4) $8,172.60 in unpaid overtime wages,
$3,600 in spread-of-hours pay, $11,772.60 in liquidated damages, and $10,000 in statutory
damages under the WTPA to plaintiff Fekkak. The Court further respectfully recommends that
the defendants be held jointly and severally liable for the judgment. Finally, the Court
respectfully recommends that, should the district court adopt this Report and Recommendation,
the district court provide in its judgment that “if 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,” and that plaintiff “shall have the right to collect
attorney’s fees and costs incurred in enforcing” the judgment. N.Y. Lab. Law §§ 198(4), 663(4).
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the
method for computing time). Failure to file objections within the specified time waives the right
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to appeal the District Court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d
Cir. 2008).
Plaintiff is directed to serve this Report and Recommendation, either electronically
through the Electronic Case Filing (ECF) system, by mail, and by email to defendant Bouteraa.
and file proof of service on the docket immediately thereafter.
SO ORDERED.
Dated: Brooklyn, New York
January 21, 2026 /s/ Peggy Cross-Goldenberg
Peggy Cross-Goldenberg
United States Magistrate Judge
Eastern District of New York
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