Gutierrez Leiva v. Los Amigos Deli Bodega Hispana Corp. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Santos Gutierrez Leiva,
Plaintiff,
-v-
Los Amigos Deli Bodega Hispana Corp. and David
Taveras,
Defendants.
2:24-cv-05222
(NJC) (AYS)
MEMORANDUM AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
Before me is a Motion for Default Judgment by Plaintiff Santos Gutierrez Leiva
(“Gutierrez Leiva”) against Defendants Los Amigos Deli Bodega Hispana Corp. and David
Taveras (collectively, “Defendants”) and the Report and Recommendation (the “R&R”) by
Magistrate Judge Anne Y. Shields that the Motion be granted in part and denied in part. For the
reasons stated below, I adopt the R&R in part and reject only its recommendation to deny
damages under the Wage Theft Prevention Act (the “WTPA”). Accordingly, I grant Gutierrez
Leiva’s Motion for Default Judgment for the reasons set forth in the R&R and below.
PROCEDURAL HISTORY
On July 26, 2024, Gutierrez Leiva commenced this action against Defendants seeking to
recover unpaid overtime wages and other relief for alleged violations of the Fair Labor Standards
Act, 29 U.S.C. §§ 201 et seq., Articles 6 and 19 of the New York Labor Law (“NYLL”), and
Title 12, Part 146, of the New York Codes, Rules, and Regulations (“NYCRR”). (Compl., ECF
No. 1.)
On February 28, 2025, Gutierrez Leiva filed a Motion for Default Judgment, seeking
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damages, interest, attorney’s fees, and costs. (ECF No. 12.) On May 20, 2025, I denied
Plaintiff’s Motion for Default Judgment with leave to renew upon proper submission in
compliance with the Servicemembers Civil Relief Act. (Elec. Order, May 20, 2025.) On May 22,
2025, Gutierrez Leiva filed a letter addressing that issue and enclosing supplemental submissions
in support of a Motion for Default Judgment. (ECF No. 13.) On May 24, 2025, I enumerated
additional deficiencies in the motion, instructed Gutierrez Leiva to file a renewed motion
addressing those deficiencies by May 30, 2025, and referred the renewed motion to Magistrate
Judge Anne Y. Shields for a written report and recommendation. (Elec. Order, May 24, 2025.)
On May 27, 2025, Gutierrez Leiva timely filed the renewed Motion for Default Judgment, which
rectified the deficiencies identified in the May 24, 2025 Order. (ECF No. 14.)
On September 25, 2025, Judge Shields issued a Report and Recommendation (the
“R&R”) recommending that Gutierrez Leiva’s Motion for Default Judgment be granted in part
and denied in part and that Gutierrez Leiva be awarded damages, fees, and costs as follows:
(1) unpaid minimum wage and overtime compensation, pursuant to both the FLSA and
the NYLL, in the amount of $5,986.00; (2) liquidated damages, pursuant to the NYLL, in
the amount of $5,986.00; (3) pre-judgment interest through the date of this Report and
Recommendation in the amount of $802.16, with additional interest to be calculated at a
rate of $1.48 per day through the date of judgment herein; and, (4) post-judgment
interest, to be calculated by the Clerk of the Court, pursuant to 28 U.S.C. Section 1961,
for a total monetary award of $12,774.16, plus additional interest.
(R&R at 15–16, ECF No. 15.) Judge Shields recommended denial of Gutierrez Leiva’s request
for WTPA damages under NYLL Sections 195(1) and 195(3) on the basis that the Amended
Complaint does not establish Gutierrez-Leiva’s standing to pursue these claims. (Id. at 12–14.)
A copy of the R&R was provided to Gutierrez Leiva via ECF on September 25, 2025 (see
id.), and Gutierrez Leiva filed a certificate of service on September 26, 2025 affirming service of
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the R&R on each Defendant on September 26, 2025 via delivery by USPS First Class Mail and
FedEx Overnight Delivery at the address of Los Amigos Deli’s principal place of business (see
ECF No. 16). The R&R instructed that any objections to the R&R were required to be submitted
in writing to the Clerk of Court within fourteen (14) days of service of the R&R. (R&R at 16.)
Consequently, the deadline to object to the R&R was October 10, 2025. The date for filing any
objections to the R&R has thus expired, and no party has filed an objection to the R&R.
LEGAL STANDARD
In reviewing a report and recommendation, the court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1). If no objections are filed, a district court reviews a report and recommendation for
clear error. Nambiar v. Cent. Orthopedic Grp., LLP, No. 24-1103, 158 F.4th 349, 359 (2d Cir.
2025); In re GEICO Customer Data Breach Litig., 691 F. Supp. 3d 624, 628 (E.D.N.Y. 2023)
(citing Galvez v. Aspen Corp., 967 F. Supp. 2d 615, 617 (E.D.N.Y. 2013)).
New York Labor Law § 195 requires employers to furnish employees with written notice
upon hiring of the employee’s “rate or rates of pay and basis thereof, whether paid by the hour,
shift, day, week, salary, piece, commission, or other . . . .” N.Y. Lab. Law § 195(1)(a). The
statute further requires employers to provide, “with every payment of wages,” wage statements
enumerating “rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week,
salary, piece, commission, or other; gross wages; deductions . . . .” N.Y. Lab. Law § 195(3).
Under the statute, as amended by the WTPA, employees are entitled to recover damages
from their employers for violations of NYLL § 195. Employees who do not receive the requisite
wage notice within ten business days of employment are entitled to recover “fifty dollars for
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each work day that the violations occurred or continue to occur, but not to exceed a total of five
thousand dollars, together with costs and reasonable attorney’s fees.” N.Y. Lab. Law § 198(1-b).
Employees who do not receive the requisite wage statements are entitled to recover “two
hundred fifty dollars for each work day that the violations occurred or continue to occur, but not
to exceed a total of five thousand dollars, together with costs and reasonable attorney’s fees.”
N.Y. Lab. Law § 198(1-d).
In the context of a wage notice or wage statement claim under NYLL § 195, “a plaintiff
cannot rely on technical violations of the [NYLL]” to establish an injury-in-fact “but must allege
actual injuries suffered as a result of the alleged wage notice and wage statement violations.”
Guthrie v. Rainbow Fencing Inc., 113 F.4th 300, 305 (2d Cir. 2024) (quotation marks and
alterations omitted). In order to establish such an actual injury, a plaintiff must demonstrate
“some causal connection between the lack of accurate notices and [the alleged] downstream
harm.” Id. at 308. A plaintiff need not, however, establish an injury that is greater than or
different from the loss of wages or overtime pay alleged in their lawsuit. Id. at 309. A plaintiff
can establish an injury-in-fact by “show[ing] that he or she would have undertaken . . . advocacy
and plausibly would have avoided some actual harm or obtained some actual benefit if accurate
notices had been provided.” Id. at 308. A plaintiff may be able to establish a concrete injury in
the form of a financial harm, for example, by showing that “inaccurate or noncompliant notices
prevented the employee from obtaining full payment of wages in a timely fashion.” Id. at 309.
When ruling on a motion for default judgment, “a district court must determine
whether—after taking all well-pleaded allegations as true and making reasonable inferences in
the plaintiff's favor—the plaintiff’s ‘allegations establish . . . liability as a matter of law.’” Henry
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v. Oluwole, 108 F.4th 45, 55 (2d Cir. 2024) (citing Finkel v. Romanowicz, 577 F.3d 79 (2d Cir.
2009)). “To that end, a district court . . . ‘need not agree that the alleged facts constitute a valid
cause of action’ and it may even ‘require proof of necessary facts’ to establish liability.” Id.
(citations omitted). “Only after the district court is convinced that the facts meet the elements of
the relevant cause of action—whether those facts are established by well-pleaded allegations or
proven by admissible evidence—may the district court enter a default judgment.” Id.
DISCUSSION
Because no party has timely filed objections to the R&R, I may review the R&R for clear
error. Nambiar, 158 F.4th at 359. Nevertheless, I reviewed the R&R de novo out of an
abundance of caution. Having reviewed the motion papers, the applicable law, and the R&R, I
adopt the R&R in part and reject in part. I reject the R&R only with respect to the
recommendation to deny damages under the WTPA for lack of standing. I otherwise adopt the
R&R with respect to the remainder of its recommendations, which address liability and the
calculation of unpaid minimum wage and overtime pay; liquidated damages; pre-judgment
interest; and post-judgment interest.
As addressed in the R&R, Gutierrez Leiva seeks statutory damages pursuant to New
York Labor Law §§ 195(1) and 195(3) (the “WTPA damages”) on the basis that Defendants
failed to “provide [her] with a wage notice at the time of her hire, or at any time thereafter,” and
failed to provide “complete and accurate wage statements with her weekly earnings.” (Mot., ECF
No. 14, at 14–15.) In a declaration accompanying her Motion, Gutierrez Leiva further attests:
Because I was not provided with complete and accurate wage notices and paystubs, I was
kept in the dark about how much I should have been paid.
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Had I been provided such wage notices and statements, I would have been more likely to
know that I was entitled to overtime compensation for the hours I worked in excess of
forty (40) each week, and I could have advocated for myself and brought this lawsuit
earlier to enforce my rights under state and federal law.
However, because I was not provided with complete and accurate wage notices and pay
stubs, I could not rectify the situation, which resulted in my continued underpayment of
wages.
(Gutierrez Leiva Decl., ECF No. 14-9, ¶¶ 22–24.)
The R&R recommended that I deny Gutierrez Leiva’s claim for WTPA damages because
she had not established Article III standing under the standard set forth in Guthrie, 113 F.4th
300. (R&R at 13–14.) The R&R reasoned that Gutierrez Leiva’s statements resembled those
found insufficient to establish standing in decisions by other courts in the Second Circuit. Id.
(citing Blanco v. M&R Plaza Deli Inc., No. 23-cv-9408, 2024 WL 4859467, at *6 (E.D.N.Y.
Oct. 29, 2024), adopted by, 2024 WL 4855214, at *1 (E.D.N.Y. Nov. 21, 2024)). It further
reasoned that “‘confusion and uncertainty about’ financial matters is only a ‘hypothetical,
speculative concern[] . . . insufficient to establish standing in a suit for damages.’” Id. (quoting
Brathwaite v. Martini Collections Inc., No. 22-cv-4929, 2025 14 WL 99108, at *7 (S.D.N.Y.
Jan. 14, 2025), adopted by, 2025 WL 448040, at *1 (S.D.N.Y. Feb. 10, 2025)) (additional
citations omitted).
Here, uncontroverted facts set forth in Gutierrez Leiva’s declaration establish the
concrete injury required to sustain claims for WTPA damages under Guthrie. Gutierrez Leiva
attests that she was paid wages that fell below the state minimum wage rate and below the
overtime rate for hours worked in excess of 40 hours per week. (Gutierrez Leiva Decl. ¶¶ 16–
19.) She attests that Defendants did not provide her the required wage notice or statements on her
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pay stubs at any point during her employment and that, “[h]ad [she] been provided such wage
notices and statements,” she “could have advocated for [herself] and brought this lawsuit earlier
to enforce [her] rights under state and federal law.” Id. ¶¶ 20–23. Gutierrez Leiva further
explains that “because I was not provided with complete and accurate wage notices and pay
stubs, I could not rectify the situation, which resulted in my continued underpayment of wages.”
Id. ¶ 24. This final statement establishes that Gutierrez Leiva has set forth facts demonstrating
more than a mere “technical violation” of the New York Labor Law; rather, had Defendants
provided her the required wage notice and wage statements, “she would have undertaken . . .
advocacy and plausibly would have avoided some actual harm or obtained some actual benefit if
accurate notices had been provided,” which sufficiently establishes injury-in-fact. Guthrie, 113
F.4th at 305, 308.
To be clear, the following statement in Gutierrez Leiva’s declaration, taken alone, is
likely insufficient to meet the Guthrie standard: “Had I been provided such wage notices and
statements, I would have been more likely to know that I was entitled to overtime compensation
for the hours I worked in excess of forty (40) each week, and I could have advocated for myself
and brought this lawsuit earlier to enforce my rights under state and federal law.” (Gutierrez
Leiva Decl. ¶ 23) (emphasis supplied). But here, Gutierrez Leiva has provided additional facts
through her attestation that “because I was not provided with complete and accurate wage
notices and pay stubs, I could not rectify the situation, which resulted in my continued
underpayment of wages.” (Id. ¶ 24) (emphasis supplied). Accordingly, Gutierrez Leiva has
established a concrete injury in the form of a financial harm “by showing that inaccurate or
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noncompliant notices prevented [her] from obtaining full payment of wages in a timely fashion.”
Guthrie, 113 F.4th at 309.
This conclusion finds support in the decisions of courts in this Circuit which have found
similar facts to demonstrate the concrete injury required by Guthrie for standing to pursue
WTPA damages claims. See, e.g., Lunnon v. Rigolo Prods. LLC, No. 22-cv-7560, 2025 WL
1309488, at *5–6 (E.D.N.Y. Jan. 27, 2025) (finding standing to pursue WTPA damages claims
based on plaintiff’s statements that defendant “‘denied [him] of [his] statutory right to receive
true and accurate information about the nature of [his] employment and related compensation
policies’ and that ‘the breach of the obligations injured [him] by denying [him] the right to know
the conditions of [his] compensation, and resulted in the underpayment of wages . . .’”), report
and recommendation adopted, Mar. 10, 2025 ECF Order; Solis v. Tropical Rest. Bar Inc., No.
23-cv-1707, 2024 WL 4271234, at *13 (E.D.N.Y. Sept. 19, 2024) (same), report and
recommendation adopted, Dec. 5, 2024 ECF Order; Moran v. John J. Picone, Inc., No. 24-cv-
4095, 2025 WL 2783596, at *8 (E.D.N.Y. Sept. 30, 2025) (finding the same where plaintiff
alleged “Plaintiff was deprived of his income for longer than he would have been had he been
able to timely raise his underpayment earlier . . . Plaintiff would have asserted his claim sooner if
accurate statements had been provided”); see also Velasquez v. Universal Prot. Serv., LLC, No.
1:24-cv-4795, 2025 WL 2105894, at *4 (S.D.N.Y. July 28, 2025) (collecting cases). By contrast,
courts in this Circuit have found a lack of standing to pursue WTPA damages claims under
Guthrie in the absence of allegations or facts showing that the plaintiff would have engaged in
self-advocacy to prevent underpayment if the employer had provided the required wage notices
and wage statements. See, e.g., Fanus v. 210 E. 51st St., LLC, No. 24-cv-5162, 2025 WL
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1640555, at *6 (E.D.N.Y. Feb. 25, 2025) (finding insufficient plaintiff’s attestations that “[d]ue
to not receiving the required [wage and statement] notices, [he] was not aware and unable to
challenge the unlawful pay scheme”); Blanco v. M&R Plaza Deli Inc., No. 23-cv-9408, 2024
WL 4859467, at *6 (E.D.N.Y. Oct. 29, 2024), report and recommendation adopted, 2024 WL
4855214, at *1 (E.D.N.Y. Nov. 21, 2024) (finding insufficient plaintiff’s allegations that “as a
‘direct result’ of defendants’ failure to provide proper wage notices and statements, plaintiff
‘suffered a concrete harm, resulting from Plaintiff’s inability . . . to remedy his compensation
problems . . . .’” without further statements about self-advocacy).
Accordingly, Gutierrez Leiva is entitled to statutory damages for violations of NYLL
§§ 195(1) and 195(3). Gutierrez Leiva attests that she worked 96 days in 2023 and 80 days in
2024, for a total of 176 days. (ECF No. 14-10 at 2.) At a rate of $50 per day under NYLL
§ 195(1) and $250 per day under NYLL § 195(3), Gutierrez Leiva is entitled to the statutory
maximum of $5,000 for the violation of NYLL § 195(1) and $5,000 for the violation of NYLL §
195(3).
CONCLUSION
For the reasons explained above, Gutierrez Leiva’s Motion for Default Judgment (ECF
No. 14) is granted. The Court awards Gutierrez Leiva $22,774.16, plus additional interest, as
follows: (1) unpaid minimum wage and overtime compensation in the amount of $5,986.00; (2)
liquidated damages in the amount of $5,986.00; (3) WTPA damages for violations of NYLL §§
195(1) and 195(3) in the amount of $10,000.00; (4) pre-judgment interest through September 25,
2025 in the amount of $802.16, with additional interest to be calculated at a rate of $1.48 per day
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through the date of judgment herein; and, (5) post-judgment interest, to be calculated by the
Clerk of the Court, pursuant to 28 U.S.C. § 1961.
Dated: Central Islip, New York
December 12, 2025
________/s/ Nusrat J. Choudhury_______
NUSRAT J. CHOUDHURY
United States District Judge
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