Rolando Leon v. Chen et al
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
JOSE ROLANDO LEON, Individually and on
behalf of others similarly situated,
MEMORANDUM AND ORDER
ZITA CHEN, Individually and
DNC DOORS & CABINETS INC.
MATSUMOTO, United States District Judge:
Plaintiff Jose Rolando Leon brought this action pursuant
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
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.
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
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
(“Compl.”), ECF No. 1.)
Plaintiff alleges that he worked for defendant DNC from
approximately December 2013 to December 16, 2015, as a factory
(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.)
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
(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.
Plaintiff alleges that Chen hired him to work for DNC,
and fired him from DNC.
(Leon Decl., ECF 14-3 at ¶¶ 7-8.)
delivering and installing DNC’s products to its customers in New
York, New Jersey and Connecticut.
(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.)
Plaintiff was paid $120.00 per day in cash,
regardless of the hours he worked.
(Id. at ¶ 29.)
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.
(Compl., ECF No. 1
at ¶ 30.)
(Compl., ECF No. 1.)
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
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.)
also seeks post-judgment interest as provided by law.
Law, ECF No. 14-1 at 6.)
To obtain a default judgment under Rule 55 of the Federal
Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d
Corp., 666 F. Supp. 2d 341, 346–47 (E.D.N.Y. 2009).
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
Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).
Second, after the Clerk
of the Court has entered default pursuant to Rule 55(a), the movant
pursuant to Fed. R. Civ. P. 55(b).”
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
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
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
Enron, 10 F.3d at 95-96.
“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)).
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
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.
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
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
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
plaintiff’s ability to prove his damages” and, consequently, “a
plaintiff may meet his burden of proof by relying on recollection
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
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
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.
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.”
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.)
Service of Process
4(e)(1) provides that service may be effected in accordance with
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.
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 §
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.)
Accordingly, service on
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
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,”
the delivery and mailing is effected “within twenty days of each
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.”
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 §
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
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,
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.
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
As such, both plaintiff’s FLSA and NYLL claims are
Defendants are Covered by the FLSA and the NYLL
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,
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
enterprise engaged in interstate commerce or in the production of
goods for interstate commerce. See 29 U.S.C. § 206(a), (b).
employee engages in commerce by “performing work involving or
related to the movement of persons or things.”
29 C.F.R. §
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
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
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
employees handling, selling or otherwise working on goods or
materials that have been moved in or produced for [interstate
defendant, is a cabinet manufacturing company offering its goods
and services, at least to customers in New York, New Jersey and
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
“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)).
plaintiff has alleged sufficient facts establishing that he and
defendants are covered by the FLSA, they are also covered by the
See Herrera, 2015 WL 1529653, at *3-*4.
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).
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
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
The factors relevant to this assessment include
“whether the alleged employer (1) had the power to hire and fire
schedules or conditions of employment, (3) determined the rate and
method of payment’ and (4) maintained employment records.”
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
Barfield v. N.Y. City Health & Hosps. Corp.,
537 F.3d 132, 142-43 (2d Cir. 2008) (describing the employeremployee
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,
(Compl., ECF No. 1 at ¶¶ 9-10.)
satisfy three of the Carter factors.
The fourth factor, regarding
employment records, is not met, however, because plaintiff alleges
that defendant did not keep employment records.
(Id. at ¶¶ 26,
That no employment records were presented does not undermine
the “economic reality” that Chen “controlled all tasks related to
Mahoney v. Amekk Corp., No. 14-CV-4131
(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.”)).
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
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
Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d
253, 308 n.21 (S.D.N.Y. 2011) (citation omitted).
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
defined under both state and federal law, as there is general
Defendants are Jointly and Severally Liable
The court finds that DNC, the corporate defendant, and
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).
A. Defendants Paid Plaintiff the Statutory Minimum Wage
Under the FLSA and NYLL
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
(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
206(a)(1) (federal minimum wage was $7.25 per hour after July 24,
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
Chen v. JP Standard Constr. Corp., No. 14-CV-1086 (MKB)
(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
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
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)).
here, a defendant employer defaults, a plaintiff’s recollection
and estimates of hours worked are presumed to be correct.
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),
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).
Plaintiff alleges that he was not compensated for his
last two weeks of work in December 2015.
recoverable under the NYLL.
As more than seven days
Accordingly, defendants are liable
for failing to pay plaintiff his wages for his last two weeks of
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
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)).
To state a plausible FLSA
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).
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
The same standard applies to stating an overtime claim under
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
Accordingly, the court finds that defendants are liable under the
FLSA and the NYLL for not paying plaintiff his overtime premium.
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
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
D. Defendants are Not Liable for Failing to Pay Plaintiff
Spread-of-Hours Compensation Under the NYLL
“spread-of-hours” as required under New York Law.
1 at ¶¶ 54-57.)
(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
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.
(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
Accordingly, defendants are not liable for any spread-
of-hours violations under the NYLL.
E. Defendants are Liable for Wage Notice and Statement
alleged failure to provide defendant with written notice of his
pay rate pursuant to NYLL § 195 and § 198.
(Compl., ECF No. 1 at
The NYLL requires that employers maintain records for
their employees who fall under the NYLL’s wage protections.
NYLL § 195 and § 661; 12 NYCRR § 142-2.6 (specifying content of
New York law also requires that employees
be furnished with written notice with rate or rates of pay and
employer’s name and contact information.
See NYLL § 195(1)(a) and
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
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
wage information when they were hired” and they “did not receive
written notice . . . with every payment of wages”).
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
B. Overtime Compensation
Defendants are liable for failing to pay plaintiff his
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
week during his employment with defendants, for a total of 106
Plaintiff is owed an additional $6.00 per hour for each
of the 2,120 hours of overtime he worked.
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.
that he did not receive written notice of his pay and defendants
failed to keep proper payroll records.
(Compl., ECF No. 1 at 26,
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).
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
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
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
Accordingly, the court will follow the guidance 2 of the appellate
court and not grant liquidated damages under both the FLSA and the
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).
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).
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
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.
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.)
states that “[i]nterest shall be allowed on any money judgment in
a civil case recovered in a district court.”
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.”
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.
28 U.S.C. § 1961.
attorneys’ fees is “the number of hours reasonably expended on the
“presumptively reasonable fee.”
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).
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.,
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.
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
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
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.
declaration by his attorney, Darren P.B. Rumack, Esq., in support
of his attorneys’ fee application.
(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
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.)
$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
resulting in a default judgment motion.
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
Accordingly, the court awards attorneys’ fees in the
amount of $4,728.50.
Both the FLSA and New York state law provide for an award
See 29 U.S.C. § 216(b); NYLL § 198(4).
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.)
The court finds these amounts are
reasonable, and therefore, awards $504.00 in costs.
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.
defendants as follows:
1) Total damages awarded to Jose Rolando Leon:
Liquidated Damages under the FLSA:
Violations of §§ 195(a) and (3) of the NYLL:
2) Attorneys’ fees:
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.
Plaintiff’s counsel shall
serve a copy of this Memorandum and Order and the Judgment on
defendants, and note service on the docket.
March 29, 2017
Brooklyn, New York
Hon. Kiyo A. Matsumoto
United States District Judge
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