Rolando Leon v. Chen et al

Filing 15

ORDER granting 14 Motion for Default Judgment. For the reasons stated in the attached Memorandum and Order, plaintiff's motion for entry of a default judgment against defendants Zita Chen and DNC Doors and Cabinets, Inc., is granted in the amount of $38,552.50 for damages, attorneys' fees and costs plus post-judgment interest. The Clerk of Court is respectfully directed to enter judgment for plaintiff and against the defendants Zita Chen and DNC Doors & Cabinets, Inc., and close this case. Plaintiff's counsel shall serve a copy of this Memorandum and Order and the Judgment on defendants, and note service on the docket by March 31, 2017. Ordered by Judge Kiyo A. Matsumoto on 3/29/2017. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------x
JOSE ROLANDO LEON, Individually and on
behalf of others similarly situated,
Plaintiff,
MEMORANDUM AND ORDER
-against16-CV-480(KAM)(PK)
ZITA CHEN, Individually and
DNC DOORS & CABINETS INC.

Defendants.
---------------------------------------x
MATSUMOTO, United States District Judge:
Plaintiff Jose Rolando Leon brought this action pursuant
to

the

Fair

Labor

Standards

Act

(“FLSA”), 29

U.S.C

§

201 et

seq. and the New York State Labor Law (“NYLL”) § 190 et seq.
Plaintiff seeks unpaid wage and overtime pay, FLSA liquidated
damages, NYLL liquidated damages, damages for failure to provide
written notice of rate of pay, attorneys’ fees and costs, and postjudgment interest.

Defendants failed to appear or otherwise

defend this action.

After the Clerk of the Court entered default

against defendants pursuant to Rule 55(a) of the Federal Rules of
Civil Procedure, plaintiff filed the instant motion for entry of
default judgment.

For the reasons stated herein, plaintiff’s

motion for entry of a default judgment is granted pursuant to Rule
55(b)(2) of the Federal Rules of Civil Procedure.

Plaintiff is

awarded $33,320.00 in damages and $4,728.50 in attorneys’ fees and
$504.00 in costs, plus post judgment interest as prescribed in 28
U.S.C. § 1961. 1
BACKGROUND
Plaintiff Jose Rolando Leon (“plaintiff”) brought this
action against Zita Chen (“Chen”) and against DNC Doors & Cabinets
Inc. (“DNC”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C
§ 201 et seq., and the New York State Labor Law (“NYLL”) § 190 et
seq.,

by

filing

a

complaint

on

January

29,

2016.

(Complaint

(“Compl.”), ECF No. 1.)
Plaintiff alleges that he worked for defendant DNC from
approximately December 2013 to December 16, 2015, as a factory
worker.

(Compl., ECF No. 1 at ¶ 3; Declaration of Jose Rolando

Leon (“Leon Decl.”), ECF No. 14-3 at ¶ 3.)

DNC is a New York

Corporation located in Flushing, New York with annual gross sales
in excess of $500,000.00. (Compl., ECF No. 1 at ¶¶ 6-7.)

At all

relevant times, DNC was an employer engaged in commerce and/or in
the production of goods.

(Id. at ¶ 8.)

Plaintiff also alleges

that Chen is an owner and operator of DNC, and therefore, an

1 Although plaintiff purports to bring this action on behalf of himself and
others similarly situated, the Complaint contained no class allegations.
Therefore, the court grants judgment in favor of plaintiff only in his
individual capacity.

2

employer.

(Id. at ¶ 10.)

Chen is responsible for the day-to-day

operations of DNC, including hiring, terminating, supervising,
setting schedules, and pay rates for employees.

(Id.)

Plaintiff alleges that Chen hired him to work for DNC,
and fired him from DNC.
2013

and

2014,

(Leon Decl., ECF 14-3 at ¶¶ 7-8.)

plaintiff’s

primary

job

During

responsibilities

were

delivering and installing DNC’s products to its customers in New
York, New Jersey and Connecticut.
22.)

(Compl., ECF No. 1 at ¶¶ 21-

During 2015, plaintiff primarily worked in the factory,

where he sanded marble, and prepared marble for installation. (Id.
at ¶ 23.)

Plaintiff frequently worked six days per week for

defendants, between the hours of 8 a.m. to 6 p.m. (Leon Decl., ECF
No. 14-3 at ¶¶ 10-11.)

Plaintiff alleges that he was not required

to sign in or out, when he arrived or left work.

Nor was he

otherwise required to record the time he spent at work.
ECF No. 1 at ¶ 26.)

(Compl.,

Plaintiff was paid $120.00 per day in cash,

regardless of the hours he worked.

(Id. at ¶ 29.)

Plaintiff

alleges that Chen terminated his employment with DNC, and that the
last day he was employed by defendants was December 16, 2015.
(Leon Decl., ECF No. 14-3 at ¶¶ 3, 7.)

Plaintiff further alleges

that defendants did not pay him for his last two weeks of work,
from December 2, 2015 to December 16, 2015.
3

(Compl., ECF No. 1

at ¶ 30.)
Plaintiff
(Compl., ECF No. 1.)

filed

the

Complaint

on

January

29,

2016.

Plaintiff alleges that: 1) Defendants failed

to pay him minimum wage pursuant to FLSA and NYLL; 2) Defendants
failed to pay him overtime pay pursuant to FLSA and NYLL; 3)
Defendants failed to pay him spread-of-hours pay pursuant to New
York State labor regulations, N.Y. Comp. Codes R. & Regs. (“NYCRR”)
tit. 12, § 142-2.4; and 4) Defendants failed to provide him with
a written notice of rate of pay pursuant to NYLL. (Compl., ECF No.
1 at ¶¶ 36-62.)
On February 8, 2016, the summons and complaint were
served on Suki Zhang, who self-identified as the co-worker of Chen,
and as the general agent of DNC.

(Ex. C, ECF No. 14-2 at 22-23.)

Neither Chen nor DNC appeared or has otherwise defended this
action. (Ex. D, ECF No. 14-2 at 26.)

On April 15, 2016, the Clerk

of the Court filed the Clerk’s Certificate of Default against Chen
and DNC pursuant to Fed. R. Civ. P. 55(a).

(Id.; ECF No. 13.)

On May 10, 2016, plaintiff filed this motion for entry
of a default judgment against Chen and DNC pursuant to Fed. R.
Civ. P. 55(b)(2). (ECF No. 14.)

Plaintiff seeks the following

relief: 1) unpaid wage and overtime pay in the amount of $17,670;
2) FLSA liquidated damages in the amount of $17,670; 3) NYLL
4

liquidated damages in the amount of $17,670; and 4) damages in the
amount of $5,000 for failure to provide written notice of rate of
pay. (Ex. A, ECF No. 14-3 at 6.)

Additionally, plaintiff seeks

$5,063.05 in attorneys’ fees at an hourly rate of $400.00 (Ex. E,
ECF No. 14-2 at 29), $400.00 in filing fees (Ex. D, ECF No. 14-2
at 25), and $104 in costs.

(Ex. E, ECF No. 14-2 at 30.)

Plaintiff

also seeks post-judgment interest as provided by law.

(Memo. of

Law, ECF No. 14-1 at 6.)
DISCUSSION
I.

Legal Standard
To obtain a default judgment under Rule 55 of the Federal

Rules of

Civil

process.

Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d

114,

(E.D.N.Y.

123

Procedure,

a

movant

2011); La

must

Barbera

v.

complete

Fed.

a

Metal

Corp., 666 F. Supp. 2d 341, 346–47 (E.D.N.Y. 2009).

two-step

&

Glass

First, the

Clerk of the Court must enter default “[w]hen a party against whom
a judgment for affirmative relief is sought has failed to plead or
otherwise

defend,

otherwise.”

Fed.

and
R.

that
Civ.

failure
P.

is

shown

55(a); Enron

Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).

by

affidavit

Oil

Corp.

or
v.

Second, after the Clerk

of the Court has entered default pursuant to Rule 55(a), the movant
“may

then

make

an

application

for
5

entry

of

default

judgment

pursuant to Fed. R. Civ. P. 55(b).”
at 123.

Rodriguez, 784 F. Supp. 2d

If the defendant fails to appear, or move to set aside

the default under Rule 55(c), the court may enter a default
judgment.

Fed. R. Civ. P. 55(b)(2).
On a motion for entry of a default judgment, the court

“deems all the well-pleaded allegations in the pleadings to be
admitted.”

Transatlantic

Marine

Claims

Agency,

Inc.

v.

Ace

Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); see also Finkel
v. Universal Elec. Corp., 970 F. Supp. 2d 108, 119 (E.D.N.Y. 2013).
The Second Circuit has an “oft-stated preference for resolving
disputes

on

disfavored.”

the

merits,”

making

default

Enron, 10 F.3d at 95-96.

judgments

“generally

“Accordingly, just because

a party is in default, the plaintiff is not entitled to a default
judgment as a matter of right.”

Mktg. Devs., Ltd. v. Genesis Imp.

& Exp., Inc., No. 08-CV-3168 (CBA)(CLP), 2009 WL 4929419, at *2
(E.D.N.Y. Dec. 21, 2009) (citing Erwin DeMarino Trucking Co. v.
Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993)).

Regardless of

the assumption of truth of the complaint when a party is in
default, the court has a “responsibility to ensure that the factual
allegations, accepted as true, provide a proper basis for liability
and relief.”

Rolls-Royce PLC v. Rolls-Royce USA, Inc., 688 F.

Supp. 2d 150, 153 (E.D.N.Y. 2010)(citing Au Bon Pain Corp. v.
6

Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
An employee seeking to recover unpaid wages “has the
burden of proving that he performed work for which he was not
properly compensated.”

Jiao v. Chen, No. 03-CV-165 (DF), 2007 WL

4944767, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946)).

An employer is

required by federal and state law to maintain “records of the
persons

employed

by

him

and

of

the

wages,

hours,

and

other

conditions and practices of employment maintained by him.” 29
U.S.C. § 211(c); see also 12 NYCRR § 142-2.6(a) (“[e]very employer
shall establish, maintain and preserve for not less than six years,
weekly payroll records”).

In the case of a default judgment, the

“defaulting defendant deprive[s] the plaintiff of the necessary
employee

records

required

by

the

FLSA,

thus

hampering

[the]

plaintiff’s ability to prove his damages” and, consequently, “a
plaintiff may meet his burden of proof by relying on recollection
alone

to

establish

that

improperly compensated.”

he

performed

work

for

which

he

was

Kernes v. Global Structures, LLC, No.

15-CV-659 (CM) (DF), 2016 WL 880199, at *6 (S.D.N.Y. Mar. 1, 2016)
(internal citations and quotation marks omitted) (alteration in
original); Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS)
(JLC), 2012 WL 1669341, at *3 (S.D.N.Y. May 14, 2012), R&R adopted
7

by, Order dated Aug. 9, 2012 (Dkt. No. 20).
“[A] district court retains discretion [on a motion for
entry of a default] . . . to require proof of necessary facts [,]
and need not agree that the alleged facts constitute a valid cause
of action.”

Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).

If the unchallenged facts establish defendant’s liability, the
court then determines the amount of damages due.

See Credit

Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
1999) (citing Transatlantic, 109 F.3d at 111) (citation omitted).
An inquest on damages by affidavit, without an in-person hearing,
may be conducted as long as the court can ensure “a basis for the
damages specified in the default judgment.”

Transatlantic, 109

F.3d at 111; Xochimitl v. Pita Grill of Hell’s Kitchen, Inc., No.
14-CV-10234(JGK)(JLC), 2016 WL 4704917, at *5 (S.D.N.Y. Sept. 8,
2016), R&R adopted sub nom., 2016 WL 6879258 (S.D.N.Y. Nov. 21,
2016) (“An affidavit that sets forth the number of hours worked
and pay received is sufficient” to carry the employee’s burden of
proving that he was not compensated for the work performed.)
(citation omitted).
II.

Service of Process
Defendants

were

properly

served.

Fed.

R.

Civ.

P.

4(e)(1) provides that service may be effected in accordance with
8

the service rules of the state where the district is located or
service is made.

“An affidavit of service is prima facie proof

of effective service.”

Gore v. RBA Group, Inc., No. 03-CV-9442,

2009 WL 884565, at *4 (S.D.N.Y. March 27, 2009); Fifth Third Bank
v. Mytelka, No. 05-MC-52, 2008 WL 3852170, at *2 (E.D.N.Y. Aug.
16, 2008).

New York Civil Practice and Law Rules (“CPLR”) §

311(a)(1) state that “personal service upon ‘any domestic []
corporation’ may be made upon ‘an officer, director, managing or
general agent . . . or to any other agent authorized by appointment
or by law to receive service.’”

CIT Bank v. Dambra, No. 14-CV-

3951 (SLT) (VMS), 2015 WL 7422348, at *3 (E.D.N.Y. Sept. 25, 2015),
R&R adopted by CIT Bank, N.A. v. Dambra, No. 14-CV-3951 (SLT)
(VMS), 2015 WL 7430006 (E.D.N.Y. Nov. 20, 2015) (citing CPLR §
311(a)(1)).

Here, plaintiff submitted an affidavit of service

stating that a copy of the summons and complaint was served on
Suki Zhang personally, who is the general agent of DNC. (Affidavit
of Service, Ex. C, ECF No. 14-2 at 23.)
the

corporate

defendant

DNC

was

in

Accordingly, service on
accordance

with

CPLR

§

311(a)(1).
Defendant Chen was also properly served.

CPLR § 308(2)

allows for service of process on an individual “by delivering the
summons within the state to a person of suitable age and discretion
9

at the actual place of business, dwelling place or usual place of
abode of the person to be served,” and “by either mailing the
summons to the person to be served at his or her last known
residence or by mailing the summons by first class mail to the
person to be served at his or her actual place of business,”

where

the delivery and mailing is effected “within twenty days of each
other.”

Id.

Here, plaintiff submitted an affidavit of service

stating that a copy of the summons and complaint was served on
Suki Zhang, who self-identified as Ms. Chen’s co-worker, at Chen’s
place of business.

(Ex. C, ECF No. 14-2 at 22.)

Suki Zhang was

described as being “of suitable age and discretion.”

Id.

A copy

of the summons and complaint was sent by regular first class mail
to Ms. Chen at her place of business on February 11, 2016. Id.
Accordingly, service on Ms. Chen was in accordance with CPLR §
308(2).
III.

Statute of Limitations
Plaintiff brings six claims pursuant to both state and

federal wage laws.

“The statute of limitations for an FLSA claim

is two years, unless the violation is ‘willful,’ in which case it
is three years.”

Kuebel v. Black & Decker Inc., 643 F.3d 352, 366

(2d Cir. 2011) (citing 29 U.S.C. § 255(a)).

When a defendant

defaults, courts consider the violation “willful” and apply the
10

three-year statute of limitations.

Blue v. Finest Guard Servs.,

Inc., No. 09 CV 133, 2010 WL 2927398, at *11 (E.D.N.Y. June 24,
2010).

The statute of limitations starts to run when the employee

begins to work for the employer.

See Wicaksono v. XYZ 48 Corp.,

No. 10 CIV. 3635 LAK JCF, 2011 WL 2022644, at *3 (S.D.N.Y. May 2,
2011), R&R adopted by 2011 WL 2038973 (S.D.N.Y. May 24, 2011).
The statute of limitations under NYLL is six years.

Id. (citing

NYLL § 663(3) and Lanzetta v. Florio’s Enters., Inc., 763 F. Supp.
2d 615, 622 (S.D.N.Y. 2011)).
Here, defendants defaulted and, therefore, the threeyear FLSA statute of limitations applies.

Plaintiff began working

with defendants in December 2013 and filed his complaint on January
29, 2016.

As such, both plaintiff’s FLSA and NYLL claims are

timely.
IV.

Defendants are Covered by the FLSA and the NYLL
To

establish
statute.

qualify

either

for

FLSA

enterprise

or

protection,
individual

a

plaintiff

coverage

under

must
the

See Gomez v. El Rancho de Andres Carne de Tres Inc., No.

12-CV-1264 (CBA) (MDG), 2014 WL 1310296, at *3 (E.D.N.Y. Mar. 11,
2014).

The FLSA specifically applies only to employees: (1) who

are personally engaged in interstate commerce or in the production
of goods for interstate commerce or (2) who are employed by an
11

enterprise engaged in interstate commerce or in the production of
goods for interstate commerce. See 29 U.S.C. § 206(a), (b).

An

employee engages in commerce by “performing work involving or
related to the movement of persons or things.”

29 C.F.R. §

779.103.
Plaintiff alleges that he worked in defendants’ factory
and also installed and delivered products to defendants’ customers
in New York, New Jersey and Connecticut.

(Compl., ECF 1 at ¶21.)

Accordingly, plaintiff has established that he was engaged in
commerce.

See Herrera v. Tri-State Kitchen & Bath, Inc., No.14-

CV-1695 (ARR) (MDG), 2015 WL 1529653, at *3 (E.D.N.Y. Mar. 31,
2015) (concluding that plaintiffs who regularly worked in New York
and New Jersey established individual coverage under the FLSA);
Bowrin v. Catholic Guardian Soc’y, 417 F. Supp. 2d 449, 468-71
(S.D.N.Y. 2006) (concluding that plaintiffs who regularly traveled
across state lines in connection with their employment could
establish individual coverage).
Plaintiff also establishes enterprise coverage under the
FLSA.

An “enterprise” is an entity engaged in interstate commerce

that has no less than $500,000 in annual gross volume of sales.
See 29 U.S.C. § 203(s).

An enterprise is “engaged in commerce”

where it “has employees engaged in [interstate] commerce or in the
12

production

of

goods

for

[interstate

commerce],

or

that

has

employees handling, selling or otherwise working on goods or
materials that have been moved in or produced for [interstate
commerce].”

29

U.S.C.

§

203(s)(1)(A).

DNC,

the

corporate

defendant, is a cabinet manufacturing company offering its goods
and services, at least to customers in New York, New Jersey and
Connecticut.

It has gross annual sales exceeding $500,000.000.

Accordingly, it is an enterprise engaged in interstate commerce
and is covered under the FLSA.

See Boutros v. JTC Painting &

Decorating Corp., 989 F. Supp. 2d 281, 284-85 (S.D.N.Y. 2013)
(holding that an allegation that the corporate defendant services
the “New York Tri–State area” supports finding that enterprise
coverage applies).
“The NYLL is the state analogue to the federal FLSA.
Although the NYLL does not require a plaintiff to show either a
nexus with interstate commerce or that the employer has any minimum
amount of sales, it otherwise mirrors the FLSA in most aspects.”
Herrera, 2015 WL 1529653, at *4 (citing Chun Jie Yun v. Kim, 2008
WL 906736, at *4 (E.D.N.Y. Apr. 1, 2008)).

Accordingly, because

plaintiff has alleged sufficient facts establishing that he and
defendants are covered by the FLSA, they are also covered by the
NYLL.

See Herrera, 2015 WL 1529653, at *3-*4.
13

V.

Defendants are Employers Under the FLSA and the NYLL
The FLSA broadly defines an “employer” as “any person

acting directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d).

Plaintiff has

alleged that he worked for DNC in its factory, and delivered and
installed DNC’s products to its customers in New York, New Jersey
and in Connecticut.

Therefore, plaintiff has established that DNC

is an employer under the FLSA and the NYLL. See Herrera, 2015 WL
1529653, at *3-*4.
The court next considers individual defendant Chen’s
liability under the FLSA and the NYLL.

In Carter v. Dutchess

Cmty. Coll., 735 F.2d 8 (2d Cir. 1984), the Second Circuit outlined
a multi-factor test to determine the “economic reality” of an
“employment relationship” between an individual defendant and an
FLSA-plaintiff.

See id at 12; see also Irizarry v. Catsimatidis,

722 F.3d 99, 103-05 (2d Cir. 2013) (describing the Carter factors
in determining an individual defendant’s liability for an FLSA
violation).

The factors relevant to this assessment include

“whether the alleged employer (1) had the power to hire and fire
the

employees,

(2)

supervised

and

controlled

employee

work

schedules or conditions of employment, (3) determined the rate and
method of payment’ and (4) maintained employment records.”
14

See

Irizarry, 722 F.3d at 103-05 (quoting Carter, 735 F.2d at 12).
“No one of these factors is dispositive, nor [are] they, as a
whole, exclusive.”

Barfield v. N.Y. City Health & Hosps. Corp.,

537 F.3d 132, 142-43 (2d Cir. 2008) (describing the employeremployee

relationship

analysis

where

distinguishing

between

independent contractors and employees) (quoting Brock v. Superior
Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988) (internal quotation
marks omitted)). The Second Circuit has emphasized that this
analysis must be determined on “a case-by-case basis” and “by
review of the totality of the circumstances.” Barfield, 537 F.3d
at 141-42 (citing Carter, 735 F.2d at 12 n.1).
Here, plaintiff alleges that defendant Chen is the owner
and operator of defendant DNC, and that Chen exercised control
over DNC’s day-to-day operations which included hiring, firing,
supervising,
employees.

and

setting

the

schedule

and

(Compl., ECF No. 1 at ¶¶ 9-10.)

satisfy three of the Carter factors.

rates

of

pay

for

These allegations

The fourth factor, regarding

employment records, is not met, however, because plaintiff alleges
that defendant did not keep employment records.
33.)

(Id. at ¶¶ 26,

That no employment records were presented does not undermine

the “economic reality” that Chen “controlled all tasks related to
[p]laintiff’s employment.”

Mahoney v. Amekk Corp., No. 14-CV-4131
15

(ENV)(VMS), 2016 WL 6585810, at *8 (E.D.N.Y. Sept. 30, 2016), R&R
adopted by 2016 WL 6601445 (E.D.N.Y. Nov. 7, 2016) (citing Herman
v. RSR Sec. Servs., 172 F.3d 132, 140 (2d Cir. 1999) (“But that
this fourth factor is not met is not dispositive.”)).

As three

of

properly

the

four

Carter

factors

are

satisfied,

Chen

is

considered plaintiff’s employer and should be held individually
liable for any FLSA violations.

See Ling Nan Zheng v. Liberty

Apparel Co., 355 F.3d 61, 71 (2d Cir. 2003) (“[The individual
defendant] jointly employed the company’s employees where the [the
individual

defendant]

exercised

three

of

the

four

employer

prerogatives identified in Carter.”); Mahoney, 2016 WL 6585810, at
*9, R&R adopted by 2016 WL 6601445 (same).
“Courts have interpreted the definition of ‘employer’
under the [NYLL] coextensively with the definition used by the
FLSA.”

Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d

253, 308 n.21 (S.D.N.Y. 2011) (citation omitted).

Accordingly,

because the court finds that Chen was plaintiff’s employer under
the FLSA, the court also finds that she was plaintiff’s employer
for the purposes of NYLL liability.

See Mahoney, 2016 WL 6585810,

at *9; Yang v. ACBL Corp., 427 F. Supp. 2d 327, 342 n.25 (S.D.N.Y.
2005) (“The economic reality test will be used to determine whether
[the

individual

defendant]

is

[the

16

plaintiff’s]

employer

as

defined under both state and federal law, as there is general
support

for

giving

interpretations.”)

[the]
(internal

FLSA

and

the

quotation

[NYLL]

marks

consistent

and

citation

omitted).
VI.

Defendants are Jointly and Severally Liable
The court finds that DNC, the corporate defendant, and

Chen,

the

employers.

individual

defendant,

were

jointly

plaintiff’s

Accordingly, each defendant is jointly and severally

liable under the FLSA and the NYLL for the damages awarded herein.
See Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 685-86
(S.D.N.Y. 2011) (finding allegations that an individual defendant
“was an owner, partner, or manager,” of plaintiffs’ enterprise
employer coupled with his default, was sufficient to qualify him
as an FLSA and a NYLL employer, and to impose joint and several
liability with the corporate defendant for wage law violations);
see also Rodriguez, 784 F. Supp. 2d at 129 (“Courts in this circuit
have held that the same analysis applies when determining whether
defendants are jointly liable as employers under the FLSA and the
NYLL.”) (collecting cases).
VII.

Liability
A. Defendants Paid Plaintiff the Statutory Minimum Wage
Under the FLSA and NYLL

17

Both state and federal law mandate that employees be
paid at least a minimum hourly rate for every hour that they work.
Wicaksono, 2011 WL 2022644, at *3 (citing 29 U.S.C. § 206(a) and
12 NYCRR § 142–2.1).

Plaintiff in his affidavit reported that he

usually worked 10 hours per day and he received $120.00 per day.
(Leon Decl., ECF No. 14-3 at ¶¶ 11-12.)

Thus, he made on average

$12.00 per hour, which was more than the state and federal minimum
wages

during

that

period.

See

NYLL §

652(1)

(state minimum wage was $7.15 per hour on and after January 1,
2007, $8.00 per hour on and after December 31, 2013, and $8.75 per
hour

on

and

after

December

31,

2014);

29

U.S.C.

§

206(a)(1) (federal minimum wage was $7.25 per hour after July 24,
2009).

Accordingly, defendants are not liable for minimum-wage

violations under the FLSA or the NYLL.
B. Defendants are Liable for Failing to Pay Plaintiff his
Wages as Required by the FLSA and the NYLL
Plaintiff alleges that he was not compensated for his
last two weeks of work.

(Compl., ECF No. 1 at ¶ 30; Leon Decl.,

ECF No. 14-3 at ¶ 13.)

“Pursuant to section 191(a) of the NYLL,

manual workers like plaintiffs must ‘be paid weekly and not later
than seven calendar days after the week in which the wages are
earned.’”

Chen v. JP Standard Constr. Corp., No. 14-CV-1086 (MKB)

18

(RLM), 2016 WL 2909966, at *8 (E.D.N.Y. Mar. 18, 2016) (quoting
NYLL § 191(a)(i)), R&R adopted by 2016 WL 2758272 (E.D.N.Y. May
12, 2016).

Both federal and New York State law require employers

to “make, keep, and preserve” records of employee wages, hours and
employment conditions. See 29 U.S.C. § 211(c); 12 NYCRR § 142-2.6;
Pineda, 831 F. Supp. 2d at 674 (citing the federal and state
statutes).

If an employer fails to produce these records, the

plaintiff may satisfy his or her burden of proving hours worked by
relying solely on his or her recollection.

See Daniels v. 1710

Realty LLC, 497 Fed. Appx. 137, 139 (2d Cir. 2012) (citing Kuebel,
643 F.3d at 362); Choudry v. Durrani, No. 14-CV-4562 (SIL), 2016
WL 6651319, at *9 (E.D.N.Y. Nov. 10, 2016) (citing Santillan v.
Henao, 822 F. Supp. 2d 284, 293-94 (E.D.N.Y. 2011)).

Where, as

here, a defendant employer defaults, a plaintiff’s recollection
and estimates of hours worked are presumed to be correct.

See

Grochowski v. Phoenix Const., 318 F.3d 80, 87-88 (2d Cir. 2003);
Pavia v. Around the Clock Grocery, Inc., No. 03-CV-6465 (ERK),
2005

WL

4655383,

at

*5

(E.D.N.Y.

Nov.

15,

2005)

(finding

a

plaintiff’s testimony to be sufficient to establish unpaid wages).
Nonetheless, a plaintiff’s approximations and estimates must be
reasonable and appropriate.

See Jemine v. Dennis, 901 F. Supp.

2d 365, 376-79 (E.D.N.Y. 2012).
19

Plaintiff alleges that he was not compensated for his
last two weeks of work in December 2015.
have

passed

since

plaintiff

recoverable under the NYLL.

earned

As more than seven days
these

wages,

they

are

Accordingly, defendants are liable

for failing to pay plaintiff his wages for his last two weeks of
work.

See Luna v. Gon Way Constr., Inc., No. 16-CV-1411 (ARR)

(VMS), 2017 WL 835321, at *10 (E.D.N.Y. Feb. 14, 2017), R&R adopted
by 2017 WL 835174 (E.D.N.Y. Mar. 2, 2017) (finding defendants
liable for failing to pay plaintiffs their wages after more than
seven days passed since plaintiffs earned their wages); Herrera,
2015 WL 1529653, at *6 (finding defendants liable for unpaid wages
based on plaintiff’s allegations).
C. Defendants are Liable for Failing to Pay Plaintiff his
Overtime Premium as Required by the FLSA and the NYLL
Both federal and state law require that employers pay
employees one and one-half times their “regular rate” for any hours
worked in excess of forty hours in a given week.

29 U.S.C. §

207(a); 12 NYCRR § 142–2.2; see also Luna, 2017 WL 835321, at *10;
Kolesnikow v. Hudson Valley Hospital Center, 622 F. Supp. 2d 98,
118-20 (S.D.N.Y. 2009).

“[A] plaintiff must provide ‘sufficient

detail about the length and frequency’ of unpaid work in order to
support ‘a reasonable inference’” that he or she “‘worked more

20

than forty hours in a given week.’” Luna, 2017 WL 835321, at *11
(citing Nakahata v. New York-Presbyterian Healthcare Sys., Inc.,
723 F.3d 192, 200-01 (2d Cir. 2013)).
overtime

claim,

plaintiff

must

To state a plausible FLSA

provide

some

factual

context

supporting his claim that he was uncompensated for time worked in
excess of forty hours.

See Lundy v. Catholic Health Sys. of Long

Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013).

A plaintiff,

however, does not need to actually estimate the number of hours he
worked in “‘some or all workweeks.’”

Dejesus v. HF Mgmt. Servs.,

LLC, 726 F.3d 85, 90 (2d Cir. 2013) (quoting Lundy, 711 F.3d at
90).

The same standard applies to stating an overtime claim under

the NYLL.

See Rocha v. Bakhter Afghan Halal Kababs, Inc., 44 F.

Supp. 3d 337, 351 (E.D.N.Y. 2014) (“[T]he NYLL adopts th[e] same
standard . . . [as the] FLSA definition of overtime into the
[NYLL].” (quoting Nakahata, 723 F.3d at 200)).
Plaintiff alleges that he was not paid an overtime
premium for the entirety of his employment in violation of the
FLSA and the NYLL.

Plaintiff reports that he regularly worked

sixty hours per week over the course of six days while employed by
defendants.

(Leon

Decl.,

ECF

No.

14-3

at

¶¶

10-11.)

Accordingly, the court finds that defendants are liable under the
FLSA and the NYLL for not paying plaintiff his overtime premium.
21

See Luna, 2017 WL 835321, at *11 (finding that defendants were
liable for not paying plaintiffs an overtime premium pursuant to
the FLSA and the NYLL where plaintiffs alleged that they “regularly
worked

55

hours

per

week

throughout

the

course

of

their

employment”); Tackie v. Keff Enters. LLC, No. 14-CV-2074 (JPO),
2014 WL 4626229, at *3 (S.D.N.Y. Sept. 16, 2014) (finding under
the FLSA and the NYLL that

plaintiff adequately alleged an

overtime claim where “she worked a fairly regular schedule of forty
hours per week, and she occasionally worked more than forty hours
per week”).
D. Defendants are Not Liable for Failing to Pay Plaintiff
Spread-of-Hours Compensation Under the NYLL
Plaintiff

alleges

that

defendants

did

“spread-of-hours” as required under New York Law.
1 at ¶¶ 54-57.)

not

pay

him

(Compl. ECF No.

Certain employees are entitled under New York law

to a “spread-of-hours” premium for each workday worked in excess
of ten hours.

See 12 NYCRR § 142-2.4; NYLL § 650 et seq.

Specifically, for any workday that lasts longer than ten hours,
employees are entitled to receive “one [additional] hour’s pay at
the basic minimum hourly rate.”

12 NYCRR § 142-2.4(a). Courts,

however, have given deference to the New York State Department of
Labor’s interpretation that spread-of-hours does not apply to an

22

employee whose workday is in excess of ten hours if his or her
total daily compensation exceeds the New York State minimum wage
multiplied by the number of hours he or she worked plus one
additional hour at the minimum wage.

See Rui Xiang Huang v. J &

A Entm’t, Inc., No. 09-CV-5587 (ARR) (VVP), 2012 WL 6863918, at *8
(E.D.N.Y. Dec. 3, 2012) (noting that “[t]he majority of district
courts in this circuit are in accord with the New York Department
of Labor’s position that those earning more than the minimum wage
are not entitled to spread-of-hours pay”), R&R adopted by 2013 WL
173738 (E.D.N.Y. Jan. 16, 2013); Ellis v. Common Wealth Worldwide
Chauffeured Transp. of N.Y., LLC, No. 10-CV-1741 (DLI) (JO), 2012
WL 1004848, at *7-8 (E.D.N.Y. March 23, 2012) (citing cases).
Plaintiff has not established that he worked more than
ten hours per day while employed by defendants.

In his affidavit,

he said he usually worked from 8:00 a.m. until 6:00 p.m. each
workday, for a total of ten hours.
¶ 11.)

(Leon Decl., ECF No. 14-3 at

Furthermore, plaintiff received on average $12.00 per

hour; therefore, he is not entitled to spread-of-hours pay under
the NYLL.

Accordingly, defendants are not liable for any spread-

of-hours violations under the NYLL.
E. Defendants are Liable for Wage Notice and Statement
Violations

23

Plaintiff

seeks

to

recover

damages

for

defendants’

alleged failure to provide defendant with written notice of his
pay rate pursuant to NYLL § 195 and § 198.
¶ 33.)

(Compl., ECF No. 1 at

The NYLL requires that employers maintain records for

their employees who fall under the NYLL’s wage protections.

See

NYLL § 195 and § 661; 12 NYCRR § 142-2.6 (specifying content of
employer’s records).

New York law also requires that employees

be furnished with written notice with rate or rates of pay and
basis

for

payment,

allowances,

if

any,

employer’s name and contact information.

the

regular

pay

day,

See NYLL § 195(1)(a) and

§ 195(3).
Plaintiff alleges that he was never provided with a
written notice of his rate of pay and that defendants failed to
keep and preserve accurate payroll records.
at 26, 33, 59-60.)

(Compl., ECF No. 1

Accepting these allegations as true, the court

finds that plaintiff is entitled to recover damages for defendants’
violations of § 195(1)(a) and § 195(3).

It is undisputed that

plaintiff did not receive written notice of wage information when
he was hired.

Nor did he receive his rate or manner of pay during

his employment.

See Herrera, 2015 WL 1529653, at *6 (E.D.N.Y.

Mar. 31, 2015) (finding defendants liable under NYLL § 195(1)(a)
and § 195(3) where plaintiffs “did not receive written notice of
24

wage information when they were hired” and they “did not receive
written notice . . . with every payment of wages”).
VIII.

Damages
A. Defendants’ Failure to Pay Wages
Defendants are liable to plaintiff for unpaid wages for

plaintiff’s last two weeks of work.

See Chen, 2016 WL 2909966,

at *8 (citing NYLL § 191(a)(i)).

Plaintiff alleged that he

regularly worked ten hours per week for six days per week, and he
received $120.00 per day in cash.

Accordingly, defendants are

liable to plaintiff for unpaid wages in the amount of $1,440.00.
The overtime premium for these two weeks of work is calculated
separately below.
B. Overtime Compensation
Defendants are liable for failing to pay plaintiff his
overtime premium.

Plaintiff alleges that he usually worked ten

hours per day, for six days per week between December 2013 and
December 16, 2015.

(Leon Decl., ECF No. 14-3 at ¶¶ 3, 11.)

Plaintiff was paid $120.00 per day, for an average $12.00 per hour.
Thus, plaintiff is entitled to a $6.00 premium above his $12.00
average rate of pay for every hour above forty he worked each week.
See 29 U.S.C. § 207(a); NYLL § 198(1–a); 12 NYCRR § 142-2.2.
Plaintiff worked twenty hours in excess of forty hours in a given
25

week during his employment with defendants, for a total of 106
weeks.

Plaintiff is owed an additional $6.00 per hour for each

of the 2,120 hours of overtime he worked.

Accordingly, defendants

are liable for a total of $12,720 in unpaid overtime compensation.
C. Wage Notice and Statement Violations
Plaintiff worked for defendants between December 2013
and December 16, 2015, a total of 106 weeks.

Plaintiff alleges

that he did not receive written notice of his pay and defendants
failed to keep proper payroll records.
33,

59-60.)

Plaintiff

worked

(Compl., ECF No. 1 at 26,

more

than

fifty

weeks

for

defendants, and therefore, he is entitled to the statutory maximum
of $2,500 for violations of § 195(1)(a) and $2,500 for violations
of § 195(3). Accordingly, defendants are liable in the amount of
$5,000 for violations of NYLL § 195(1)(a) and § 195(3).

See

Herrera, 2015 WL 1529653, at *11 (awarding the statutory maximums
under NYLL § 195(1)(a) and § 195(3) where plaintiff was employed
for more than fifty hours).
D. Liquidated Damages
Under the FLSA, a district court is “generally required”
to award a plaintiff liquidated damages equal in amount to the
unpaid minimum and/or overtime wages.

Barfield, 537 F.3d at 150

(quoting 29 U.S.C. § 216(b)); 29 U.S.C. § 216(b) (“Any employer
26

who violates [the unpaid wage or overtime provisions of the FLSA]
shall be liable . . . in the amount of [the] unpaid minimum wages,
or [the] unpaid overtime compensation . . . and in an additional
equal amount as liquidated damages.”).

The NYLL mirrors the FLSA

and similarly permits employees to recover “an additional amount
as liquidated damages equal to one hundred percent of the total
amount of the wages found to be due . . . unless the employer
proves a good faith basis for believing that its underpayment of
wages was in compliance with the law.”

NYLL § 198(1-a); see also

NYLL § 663(1); Chenensky v. N.Y. Life Ins. Co., No. 07-CV-11504
(WHP), 2012 WL 234374, at *2 (S.D.N.Y. Jan. 10, 2012); Easterly v.
Tri-Star Transp. Corp., No. 11-CV-6365 (VB) (PED), 2015 WL 337565,
at *7-*8 (S.D.N.Y. Jan. 23, 2015).

“Thus, both the FSLA and NYLL:

(1) provide for liquidated damages equal to 100% of the total
unpaid compensation found due; and (2) place the burden of avoiding
liability on the defendant.”

Luna, 2017 WL 835321, at *14.

Courts in the Second Circuit were split, until recently,
as to whether plaintiffs could recover liquidated damages under
the FLSA and the NYLL for the same violations.

The Second Circuit

held in Chowdhury v. Hamza Express Food Corp., 666 Fed. App’x. 59,
61 (2d Cir. 2016) (summary disposition), that “whatever reasons
existed to award liquidated damages under the relevant provisions
27

of both the FLSA and the NYLL before 2010, . . . the subsequent
amendments to the NYLL . . . hav[e] eliminated those reasons.”
The November 2009 and April 2011 amendments to the NYLL were
amended to conform the NYLL, as closely as possible, to the FLSA.
Id. (citing 2009 N.Y. Sess. Laws ch. 372 (McKinney), amending NYLL
§§ 198(1-a), 663(1); 2010 N.Y. Sess. Laws ch. 564 (McKinney),
amending NYLL §§ 198(1-a), 663(1)).

Thus, double recovery of

liquidated damages under the FLSA and the NYLL for the same
violations

have

been

disapproved

by

the

Second

Circuit.

Accordingly, the court will follow the guidance 2 of the appellate
court and not grant liquidated damages under both the FLSA and the
NYLL.

Id.; see also Mahoney, 2016 WL 6585810, at *14-15 (declining

to award liquidated damages under both statutes because allowing
for “double recover[y]” of liquidated damages under the FLSA and
NYLL effectively creates a “judge-created treble damages” remedy
that neither the state nor the federal legislatures intended).

2

Chowdhury is a non-precedential panel opinion, but its reasoning and holdings
are persuasive. See Koehler v. Metro. Transp. Auth., ––– F. Supp. 3d ––––, –––
–, 2016 WL 6068810, at *3 (E.D.N.Y. 2016); United States v. Tejeda, 824 F. Supp.
2d 473, 475 (S.D.N.Y. 2010) (holding that a district court is ill-advised “to
flout germane guidance of a Circuit Court panel and to substitute its own
conclusion[s] of law”); Mendez v. Starwood Hotels & Resorts Worldwide, Inc.,
746 F. Supp. 2d 575, 595 (S.D.N.Y. 2010) (“[A] summary order has no precedential
effect on any court, although it has to be deemed some indication of how the
Court of Appeals might rule were it to decide the issue in a binding opinion.”);
cf. United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (“Denying summary
orders precedential effect does not mean that the court considers itself free
to rule differently in similar cases.”) (quotation marks and citation omitted).

28

Courts should award damages under the statute that provides for
the greater recovery.

Luna, 2017 WL 835321, at *14 (citing

Castillo v. RV Transp., Inc., No. 15-CV-527 (LGS), 2016 WL 1417848,
at *3 (S.D.N.Y. April 11, 2016)).
Here, defendants have not answered or otherwise appeared
in this action, much less demonstrated a “good faith” basis for
believing the “underpayment” of wages was lawful, as both the FLSA
and the NYLL require to prevent the imposition of liquidated
damages.

See Herrera, 2015 WL 1529653, at *12 (citing Blue, 2010

WL 2927398, at *11 (finding that a defendant’s default may suffice
to support a claim for liquidated damages) and Dong v. CCW Fashion
Inc., Nos. 06-CV-4973(LAP)(DFE), 07-CV-9741(LAP)(DFE), 2009 WL
884680, at *4–5 (S.D.N.Y. Feb. 19, 2009)).

Further, plaintiff has

alleged that defendants’ FLSA and NYLL violations were willful.
(See Compl., ECF No. 1 at ¶ 18.)

Accordingly, the court awards

$14,160, ($1,440 in unpaid wages and $12,720 in overtime wages)
for liquidated damages under the FLSA.
IX.

Post-Judgment Interest Under the FLSA
Plaintiff seeks post-judgment interest pursuant to 28

U.S.C. § 1961.

(Memo. of Law, ECF No. 14-1 at 6.)

Section 1961(a)

states that “[i]nterest shall be allowed on any money judgment in
a civil case recovered in a district court.”
29

28 U.S.C. § 1961(a).

Furthermore, “interest shall be calculated from the date of the
entry of the judgment at [the federal] rate equal to the weekly
average 1–year constant maturity Treasury yield . . . for the
calendar week preceding the date of the judgment.”
196(a).

28 U.S.C. §

The Second Circuit has held that an award of post-judgment

interest is “mandatory” and should be awarded at the statutory
rate prescribed by 28 U.S.C. § 1961.

Schipani v. McLeod, 541 F.3d

158, 165 (2d Cir. 2008) (citing Westinghouse Credit Corp. v.
D’Urso, 371 F.3d 96, 100 (2d Cir. 2004)).

As such, post-judgment

interest shall accrue at the federal statutory rate until the
judgment is paid in full paid.
X.

28 U.S.C. § 1961.

Attorneys’ Fees
The

standard

method

for

determining

reasonable

attorneys’ fees is “the number of hours reasonably expended on the
litigation

multiplied

by

a

reasonable

“presumptively reasonable fee.”

hourly

rate,”

or

a

Hensley v. Eckerhart, 461 U.S.

424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Arbor Hill
Concerned Citizens Neighborhood Ass’n v. Cnty. Of Albany and Albany
Cnty. Bd. Of Elections, 522 F.3d 182, 188–90 (2d Cir. 2007).

“The

party seeking reimbursement of attorney’s fees bears the burden of
proving the reasonableness and the necessity of the hours spent
and rates charged.”

Fermin v. Las Delicias Peruanas Rest., Inc.,
30

93 F. Supp. 3d 19, 51 (E.D.N.Y. 2015) (citing N.Y.S. Ass’n for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.
1983)).
The

Second

Circuit

requires

that

attorneys’

fee

applications include contemporaneous time records showing the date
the work was performed, “the hours expended, and the nature of the
work done” for each attorney or paralegal working on the matter.
Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Kun Fung USA
Trading Co. Inc., No. 07-CV-2568(JG), 2012 WL 1414872, at *10
(E.D.N.Y.

Jan.

20,

2012)

(quoting

N.Y.S.

Ass’n

for

Retarded

Children, 711 F.2d at 1148); see Scott v. City of N.Y., 643 F.3d
56, 58–59 (2d Cir. 2011).

In reviewing a fee application, the

district court must examine the hours expended by counsel with a
view to the value of the work product of the specific expenditures
to the client’s case.

See Lunday v. City of Albany, 42 F.3d 131,

133 (2d Cir. 1994); DiFilippo v. Morizio, 759 F.2d 231, 235 (2d
Cir. 1985).

If any expenditure of time was unreasonable, the

court should exclude these hours from the calculation. See Hensley,
461 U.S. at 434; Lunday, 42 F.3d at 133.
Plaintiff

submitted

a

billing

statement

and

a

declaration by his attorney, Darren P.B. Rumack, Esq., in support
of his attorneys’ fee application.
31

(See Declaration of Darren

P.B. Rumack, ECF No. 14-2 at 3-4, 28-30.).

Mr. Rumack is a

partner at the Klein Law Group and has been practicing law since
2007.

Mr. Rumack’s practice consists primarily of wage and hour

and general employment law, as well as workers’ compensation and
Social Security Disability law.

(Id. at 4.)

Plaintiff seeks

$5,063.05 in attorneys’ fees for 13.51 hours of work.
The court may look to fees awarded in recent FLSA and
NYLL cases in the Eastern District of New York to determine the
reasonableness of a fee request.

Fermin, 93 F. Supp. 3d at 52.

The court finds that 13.51 hours at a rate of $350.00 per hour is
reasonable

in

the

Eastern

District

resulting in a default judgment motion.

for
Id.

an

FLSA/NYLL

action

(awarding attorneys’

fees at a rate of $350.00 hours for a partner in a default judgment
FLSA/NYLL action and finding twenty-two hours as reasonable);
Fundora v. 87–10 51st Ave. Owners Corp., No. 13-CV-738(JO), 2015
WL 729736, at *1 (E.D.N.Y. Feb. 19, 2015) (awarding attorneys’
fees for a partner at an hourly rate of $350.00 in FLSA/NYLL
trial).

Accordingly, the court awards attorneys’ fees in the

amount of $4,728.50.
XI.

Costs
Both the FLSA and New York state law provide for an award

of costs.

See 29 U.S.C. § 216(b); NYLL § 198(4).
32

Here, plaintiff

requests costs of $504.00, comprising the $400.00 filing fee and
$104.00 for the service of the summons and complaint.
Decl., ECF No. 14-2 at 30.)

(Rumack

The court finds these amounts are

reasonable, and therefore, awards $504.00 in costs.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for entry
of a default judgment against defendants Zita Chen and DNC Doors
and Cabinets, Inc., is granted in the amount of $38,552.50 for
damages, attorneys’ fees and costs plus post-judgment interest.
The

judgment

is

allocated

jointly

and

severally

against

the

defendants as follows:
1) Total damages awarded to Jose Rolando Leon:
Unpaid Wages:

$33,320.00
$1,440.00

Unpaid Overtime:

$12,720.00

Liquidated Damages under the FLSA:

$14,160.00

Violations of §§ 195(a) and (3) of the NYLL:
2) Attorneys’ fees:

$5,000.00
$4,728.50

3) Costs:

$504.00

4) Post-judgment interest pursuant to 28 U.S.C. § 1961(a).
The Clerk of Court is respectfully directed to enter judgment for
plaintiff and against the defendants Zita Chen and DNC Doors &
Cabinets, Inc., and close this case.
33

Plaintiff’s counsel shall

serve a copy of this Memorandum and Order and the Judgment on
defendants, and note service on the docket.
SO ORDERED.
Dated:

March 29, 2017
Brooklyn, New York
___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

34