Khurana v. JMP USA, Inc. et al

Filing 44

FINDINGS OF FACT AND CONCLUSIONS OF LAW: For the reasons set forth herein, the Court concludes that Plaintiff has proven his claims by a preponderance of the evidence and that he is entitled to recover from Defendant Ravinder Singh $39,427.44 in damages and pre-judgment interest with post-judgment interest accruing at the statutorily prescribed federal rate. Additionally, a default judgment shall be entered in this same amount against Defendant JMP USA, Inc. Ravinder Singh and JMP USA, In c. are held jointly and severally liable for the damages. Finally, on or before May 5, 2017, Plaintiff may submit an application for attorneys fees and costs. So Ordered by Magistrate Judge Steven I. Locke on 4/5/2017. c/m to pro se party. (Perri, Anthony)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NITIN KHURANA,
Plaintiff,
FINDINGS OF FACT
AND CONCLUSIONS
OF LAW

-againstJMP USA, INC. and RAVINDER SINGH,

14-CV-4448 (SIL)
Defendants.
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LOCKE, Magistrate Judge:
Plaintiff Nitin Khurana (“Plaintiff” or “Khurana) commenced this action
against Defendants Ravinder Singh (“Singh” or “Individual Defendant”) and JMP
USA, Inc., a New York corporation (“JMP USA” or “Corporate Defendant”)
(collectively, “Defendants”), alleging violations of the Fair Labor Standards Act of
1938 (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”), N.Y. Lab.
Law § 190 et seq that occurred during his employment as an attendant at USA Gas
Station, which Defendants owned and operated. See Docket Entry (“DE”) [1]. This
action was assigned to this Court for all purposes pursuant to 28 U.S.C. § 636(c). See
DE [27]. As detailed herein, the Clerk of the Court entered a Certificate of Default
against the Corporate Defendant on June 30, 2016. With respect to the Individual
Defendant, the Court held a bench trial on June 29, 2016. See DE [39], [40]. Included
with his Proposed Findings of Fact and Conclusions of law submitted after trial,
Khurana also moved for a default judgment against JMP USA. See DE [42].
Accordingly, the Court herein decides Plaintiff’s motion and issues its findings
of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

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Having reviewed

the Complaint and considered the evidence adduced at trial, the arguments of
counsel, the parties’ post-trial submissions, and the controlling law on the issues
presented, the Court concludes that Plaintiff has met his burden of proof on all of his
overtime and spread of hours claims arising under the FLSA and NYLL, and that he
is entitled to $39,427.44 in damages and prejudgment interest from both JMP USA
and Singh, who are jointly and severally liable.
I.

PROCEDURAL HISTORY
By way of Complaint filed July 24, 2014, Plaintiff commenced this action,

seeking to recover, among other things: (i) unpaid overtime pursuant to the FLSA
and NYLL and (ii) unpaid spread of hours compensation pursuant to the NYLL. See
Compl. ¶¶ 51-64.
In their answer to the Complaint, Defendants asserted a counterclaim alleging
a discrepancy in the gas pump receipts and records that suggested Plaintiff
misappropriated funds from JMP USA during his employment. See Answer, DE [7].
Defendants provide no specificity in the Answer as to the dates on which the thefts
are alleged to have occurred or the actual amount that was stolen. See id.
On October 19, 2015, the Court adopted the Proposed Joint Pre-Trial Order
and certified the completion of discovery. See DE [21], [22]. In anticipation of trial,
on December 14, 2015, both parties consented to the jurisdiction of this Court for all
purposes. See DE [27]. However, on December 30, 2015, Defendants filed a signed
consent to relieve their counsel and proceed pro se. DE [28]. After hearing from
Defendants and their attorney on January 6, 2016, the Court allowed defense counsel

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to withdraw. DE [29]. Though the Court warned Singh that day and at each
subsequent appearance that JMP USA, as a corporation, could not proceed pro se, he
as its sole officer and shareholder nevertheless failed to retain counsel for the
Corporate Defendant. DE [29], [31], [32]. Consequently, on June 10, 2016, Plaintiff
filed a Request for and, on June 30, 2016, the Clerk of the Court entered a Certificate
of Default against JMP USA. DE [36], [38].
After the Corporate Defendant defaulted, Singh continued as a pro se
defendant with respect to his personal liability for the FLSA and NYLL violations
alleged in the Complaint. See DE [36], [32]. On June 29, 2016, the Court conducted a
bench trial on this question and to determine what if any damages were warranted. See
DE [39]. At trial, Plaintiff offered: (i) testimony from himself, (ii) excerpts from Singh’s
deposition, and (iii) Plaintiff’s shift reports that indicated his total weekly pay for 81 out
of the 102 weeks of employment at issue. See id. Defendant Singh offered only his own
testimony. See id. Following the trial, at the Court’s direction, the parties submitted
their proposed findings of fact and conclusions of law. See DE [42], [42-3]. Plaintiff also
sought in its submission a default judgment against the Corporate Defendant. See
Plaintiff’s Proposed Findings of Fact and Conclusions of Law (“Pl. Findings”) at 10,
DE [42].
II.

DEFAULT JUDGMENT AGAINST JMP USA
The Court first turns to Plaintiff’s application for a Default Judgment against

the Corporate Defendant that was included with Khurana’s Proposed Findings of
Fact and Conclusions of Law. See id.

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“It is settled law that a corporation may not appear in a lawsuit against it
except through an attorney, and that, where a corporation repeatedly fails to appear
by counsel, a default judgment may be entered against it pursuant to Rule 55, Fed.
R. Civ. P.” Grace v. Bank Leumi Trust Co. of NY, 443 F.3d 180, 192 (2d Cir. 2006)
(citing SEC v. Research Automation Corp., 521 F.2d 585 (2d Cir. 1975)) (internal
quotations omitted). This rule is fully applicable even where the sole shareholder of
the defaulting corporation elects to proceed pro se regarding his personal liability
because he is, as a matter of law, situated differently from the corporation, whose
interests may at times “overlap but are not identical in all respects.” Grace, 443 F.3d
at 192 (internal citations and quotation marks omitted).
As noted above, JMP USA consented to its attorney’s withdrawal prior to trial.
See supra at 2-3. Defendant Singh affirmatively acknowledged the consequences of
attempting to litigate his personal liability pro se.

See the Consent to Change

Attorney, DE [28]. Despite the Court’s repeated warnings that a failure to retain
counsel for the corporation would result in a default, Singh did not retain new counsel
for JMP USA. See supra at 3. Accordingly, for the reasons detailed below, the Court
grant’s Khurana’s motion for a default judgment against JMP USA in its entirety.
A. Legal Standard
Motions for default judgments are governed by Rule 55 of the Federal Rules of
Civil Procedure, which provides for a two-step process.

See Fed. R. Civ. P. 55;

Priestley v. Headminder, Inc., 647 F.3d 497, 504-05 (2d Cir. 2011). Initially, the
moving party must obtain a certificate of default from the Clerk of the Court. See

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Fed. R. Civ. P. 55(a). Once the certificate of default is issued, the moving party must
then apply for entry of a default judgment. Id. Where a default occurs, the wellpleaded factual allegations set forth in a complaint concerning liability are deemed
true. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158
(2d Cir. 1992); see also Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating
to the amount of damages—is admitted if a responsive pleading is required and the
allegation is not denied.”). However, “just because a party is in default, the plaintiff
is not entitled to a default judgment as a matter of right.” Profi-Parikiet Sp. Zoo v.
Seneca Hardwoods LLC, 13-CV-4358, 2014 U.S. Dist. LEXIS 71289, at *11 (E.D.N.Y.
May 23, 2014) (Report and Recommendation), adopted by, 2014 U.S. Dist. LEXIS
83128 (E.D.N.Y. June 18, 2014) (internal quotation omitted). Rather, the district
court must determine whether the plaintiff’s allegations establish liability as a
matter of law. See City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d
Cir. 2011); see also Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y.
2012) (holding that a plaintiff seeking a default judgment must establish that its
“uncontroverted allegations, without more, establish the defendant’s liability on each
asserted cause of action”). The decision whether to enter a default judgment “is
entrusted to the sound judicial discretion of the court.” Allstate Ins. Co. v. Howell,
09-CV-4660, 2013 WL 5447152, at *1 (E.D.N.Y. Sept. 30, 2013); see also Enron Oil
Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993) (“The dispositions of motions for
entries of defaults and default judgments . . . are left to the sound discretion of a

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district court because it is in the best position to assess the individual circumstances
of a given case and to evaluate the credibility and good faith of the parties.”).
In response to Defendants’ repeated failure to retain counsel, Plaintiff
appropriately requested a Certificate of Default against JMP USA from the Clerk of
this Court on June 10, 2016, which was properly served upon the Corporate
Defendant.

DE [37].

Moreover, the Court repeatedly cautioned JMP USA’s

principal, the present pro se defendant, that his failure to retain counsel would result
in JMP USA defaulting. See DE [29], [31], [32]. The Clerk then issued and entered
a Certificate of Default on June 30, 2016. See Entry of Default, DE [38]. Accordingly,
as a default judgment would be procedurally appropriate, the Court now examines
whether Plaintiff has established the Corporate Defendant’s liability.
B. Discussion
1. Overtime FLSA Claim
In the Complaint, Khurana first alleges that JMP USA owes him unpaid
overtime compensation pursuant to the FLSA for a period that includes July 2, 2012
through July 6, 2014. See Pl. Findings at 2; Compl. ¶¶ 51-64, Estimated Calculation
of Damages (“Est. Calc. of Dams”). For the reasons set forth below, the Court finds
that the Corporate Defendant is liable with respect to this claim.
i.

Employer Status

To prove FLSA overtime liability Plaintiff must first establish that JMP USA
was an employer under the FLSA and was engaged in interstate commerce. See 29
U.S.C. § 207; D’Arpa v. Runway Towing Corp., 12-CV-1120, 2013 WL 3010810, at *13
(E.D.N.Y. June 18, 2013).

The FLSA defines “employer” as “any person acting
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directly or indirectly in the interest of an employer in relation to an employee . . . .”
29 U.S.C. § 203(d). To determine whether an individual is an “employer” under the
FLSA, the Second Circuit utilizes the economic realities test, which focuses on
“whether the alleged employer (1) had the power to hire and fire the employee[], (2)
supervised and controlled employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4) maintained employment
records.” Irizarry v. Catsimatidis, 722 F.3d 99, 104-105 (2d Cir. 2013) (citation
omitted); see also Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 422 (2d Cir. 2016)
(applying factors in FMLA context). In addition, the analysis depends on whether
the defendant had “operational control” over employees. Irizarry, 722 F.3d at 110.
Operational control does not necessarily require direct contact with employees and
workplaces. See id. Rather, liability exists where the employer exercises control over
and makes decisions that “directly affect the nature or conditions of the employees’
employment.” Id.
Here, the Complaint sufficiently alleges that JMP USA was a covered employer
under the FLSA. Khurana articulates that the Corporate Defendant owned and
operated USA Gas Station where he worked, and also that Singh, in his role as the
sole officer of JMP USA, “exercised operational control, … controlled significant
business functions …, determined employee salaries, made hiring decisions, and
acted on behalf of and in the interest of [the Corporate Defendant] … devising,
directing, implementing, and supervising the wage and hour practices and policies

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relating to the employees.” Id. at ¶ 8. Accordingly, the Court finds that JMP USA is
properly classified as an employer.
Next, the Court must then determine whether the employer is engaged in
interstate commerce sufficient to apply the FLSA. Specifically, an employer is liable
for wage violations under the FLSA “if it hires an employee who either: 1) is engaged
in commerce or in the production of goods for commerce or 2) is employed by an
enterprise engaged in interstate commerce or in the production of goods for interstate
commerce.”

See Valdez v. H & S Rest. Operations, Inc., 14-CV-4701, 2016 WL

3079028, at *2 (E.D.N.Y. Mar. 29, 2016), (Report and Recommendation), adopted by,
2016 WL 3087053 (E.D.N.Y. May 27, 2016). An “enterprise engaged in interstate
commerce” is an entity “whose annual gross volume of sales made or business done
is not less than $500,000” and has employees that engage in interstate commerce. 29
U.S.C. § 203(s)(1); Valdez, 2016 WL 3079028, at *2.
Plaintiff alleges in the Complaint that the gross annual volume of sales made
or business done by JMP USA exceeded $500,000, and that “Defendants … engaged
in commerce or in the production of goods for commerce.” Compl. ¶¶ 53-54. Although
Khurana does not provide specific instances of interstate commerce, the Court can
infer an interstate nexus based upon the factual allegations that the Corporate
Defendant operated a gas station and that Plaintiff worked as a clerk selling gasoline
to customers – a product reasonably presumed to have originated, at least in part,
outside of New York State. See Kinzer v. Stelling, 2012 WL 1405694, at *2–*3
(M.D.Fla. Mar. 28, 2012) (finding FLSA applicable where complaint alleged that

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defendant operated retail gas station, convenience store, and car repair shop and sold
gasoline and other items); see also Cardoza v. Mango King Farmers Mkt. Corp., 14cv-3314, 2015 WL 5561033, at *4 (E.D.N.Y. Sept. 1, 2015), (Report and
Recommendation), adopted by, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015) (inferring
interstate commerce where defendants were engaged in the food supply industry
because it could be reasonably inferred that some of their products originated and/or
were sold outside of New York).
Accordingly, the Corporate Defendant is deemed an employer subject to the
FLSA.
ii.

Liability

The Court now turns to the substance of the Plaintiff’s overtime claim. The
FLSA provides:
[N]o employer shall employ any of his employees who in any workweek
is engaged in commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the production of
goods for commerce, for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half times the
regular rate at which he is employed.
29 U.S.C. § 207(a)(1).
Here, Khurana has established an ongoing overtime violation that includes a
period running from July 2012 through to the end of his employment in July 2014.
Compl. ¶¶ 9-39. From July 2012 through November 2012, Khuranna alleges that he
worked approximately 102 hours per week. See id. at ¶ 17. From November 2012
through April 2013, Plaintiff claims that he worked approximately 96 hours per week.

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See id. ¶ 21. From April 2013 through September 2013, Khurana alleges that he
worked 102 hours per week. See id. ¶ 25. From September 2013 through June 2014,
Plaintiff claims to have worked 82 hours per week. See id. ¶ 31. In June and July of
2014, Khurana alleges that he worked approximately 102 hours per week until the
end of his employment. See id. ¶ 36.
According to the Complaint, for all of the hours that Plaintiff worked in excess
of his initial 40 each week, Defendants only paid him “straight time pay,” and not the
statutorily mandated 150% overtime premium. Id. ¶¶ 44-47. As such, Plaintiff
properly makes out a violation of the FLSA’s overtime provisions. See Rodriguez v.
Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 122 (E.D.N.Y. 2011) (“Because the
Complaint alleges that Plaintiffs worked more than 40 hours a week and were not
paid time-and-a-half for their overtime hours, Plaintiffs have sufficiently pleaded a
violation of 29 U.S.C. § 207.”).
Accordingly, based on the allegations set forth in the Complaint, the Court
finds JMP USA liable for failure to pay overtime in violation of the FLSA.
2.

Overtime Claim Under New York Labor Law

Khurana also asserts that the Corporate Defendant violated the NYLL’s
overtime provisions for the same period of employment, December 2011 through July
2014. See Compl. ¶¶ 59-64. Applying the standards below, the Court finds JMP USA
liable for violating the overtime provisions of the NYLL as well.
Consistent with the FLSA, the NYLL regulations state that: “[a]n employer
shall pay an employee for overtime at a wage rate of one and one-half times the

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employee’s regular rate . . . .” N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2; see
Santillan v. Henao, 822 F. Supp. 2d 284, 292 (E.D.N.Y. 2011) (noting that the NYLL
is the “state analogue to the federal FLSA.”). In fact, the NYLL “mirrors the FLSA
in compensation provisions regarding overtime wages.” Valdez, 2016 WL 3079028,
at *3; D’Arpa, 2013 WL 3010810, at *18 (“[The NYLL] otherwise echoes the FLSA in
compensation provisions regarding overtime and minimum wage requirements.”).
Consequently, the courts of the Second Circuit routinely impose liability for an
overtime violation of the NYLL if it has already found liability under the FLSA. See
Jemine v. Dennis, 901 F. Supp. 2d 365, 375 (E.D.N.Y. 2012) (“Applying the same
reasoning used in the FLSA analysis to the state claims, this Court finds that the
undisputed allegations in the complaint and default submissions are sufficient to
impose liability on defendants under the NYLL overtime . . . provision[].”).
Accordingly, as JMP USA is considered an employer under the FLSA, it is similarly
an employer under the NYLL. See Garcia v. La Revise Associates LLC, 08 CIV 9356,
2011 WL 135009, at *5 (S.D.N.Y. Jan. 13, 2011) (“New York’s “employer” provisions
are equally broad [as that of the FLSA].”) (quoting Spicer v. Pier Sixty LLC, 269
F.R.D. 321, 335 n. 13 (S.D.N.Y. 2010)).
As an employer subject to the NYLL, the Corporate Defendant is consequently
liable for Khurana’s properly pled violation of the statute’s overtime requirements.
Plaintiff pleads that he worked in excess of forty hours per week, stating, in fact, that
he regularly worked at least 82 hours per week from January 2011 through July 2014,
working either six or seven days each week. Compl. ¶¶ 12-39.

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During this time

period, Defendants compensated him only at the regular hourly rate without any
premium compensation for those hours worked in excess of his first 40 per week. Id.
¶¶ 62-63. Accordingly, a default judgment against JMP USA is appropriate not only
under the FLSA but also under the NYLL.
3.

Spread of Hours

The Corporate Defendant is also liable for violating the spread of hours
provisions of the NYLL because JMP USA never provided any additional
compensation to Plaintiff for Khurana’s shifts that exceeded ten hours in length.
“The relevant regulation of the New York State Department of Labor ... provides, in
pertinent part, that, ‘in addition to the minimum wage,’ if an employee works in
excess of 10 hours in a day, ‘[a]n employee shall receive one hour’s pay at the basic
minimum hourly wage rate.’” Chuchuca v. Creative Customs Cabinets Inc., 13-Civ.2506, 2014 WL 6674583, at *10 (E.D.N.Y. Nov. 25, 2014) (quoting N.Y. Comp. Codes
R. & Regs. tit. 12, § 142–2.4). As of December 31, 2013, the basic minimum hourly
wage rate rose to $8.00 per hour in New York State. See 12 N.Y.C.R.R. § 142-2.1.
Plaintiff states in the Complaint that, during his entire two years of employment at
USA Gas Station, Defendants never paid him any premium beyond his wage of $8.00
per hour even when he worked a shift in excess of ten hours. See Compl. ¶¶ 46-49,
65-68. Thus, from December 31, 2013 through July 7, 2014, Defendant was being
paid at the minimum wage. Compare 12 N.Y.C.R.R. § 142-2.1. with Compl. ¶¶ 46-49,
65-68. Accordingly, in addition to the ongoing overtime violation discussed above,

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Plaintiff is also entitled to unpaid spread of hours compensation for each day he
worked for the Corporate Defendant during this time period.
4.

NYLL 195 Wage Notice Statutory Penalties

Although Khurana is entitled to a judgment against JMP USA regarding his
overtime and spread of hours causes of action, the Court denies Plaintiff’s demands
for NYLL section 195(1) and 195(3) Wage Statement Statutory Penalties as they were
not included in the Complaint and instead both raised for the first time in the present
motion. As noted above, under Federal Rule of Civil Procedure 55(a) “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend,” the defaulting defendant is deemed to admit every well-pleaded
allegation in the complaint. See Greyhound Exhibitgroup, Inc. v. E.L .U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080, 113 S. Ct. 1049
(1993) (emphasis added); Montcalm Pub. Corp. v. Ryan, 807 F. Supp. 975, 977
(S.D.N.Y. 1992).

This presumption is predicated upon the complaint giving the

opposing party notice as to what specific relief its adversary seeks and what provision
of which law is being invoked. See Vermont Teddy Bear Co. v. 1-800 Beargram Co.,
373 F.3d 241, 245–46 (2d Cir. 2004). Accordingly, a plaintiff may not seek damages
tied to causes of action not pled in the unanswered complaint by raising them for the
first time as part of a motion for default judgement. See Fed. R. Civ. P. 54(c) (“A
default judgment must not differ in kind from, or exceed in amount, what is
demanded in the pleadings.”); Silge v. Merz, 510 F.3d 157, 160 (2d Cir.2007)
(declining to award pre-judgment interest where plaintiff failed to include a claim for

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such damages in the demand clause, and noting that “[b]y operation of Rule 54(c), his
failure to do so, intentional or not, ran the risk that his damages would be limited in
the event of default.”); Trustees of Plumbers Local Union No. 1 Welfare Fund,
Additional Sec. Benefit Fund, Vacation & Holiday Fund, Trade Educ. Fund & 401(k)
Sav. Plan v. Generation II Plumbing & Heating, Inc., 07-CV-5150, 2009 WL 3188303,
at *2 (E.D.N.Y. Oct. 1, 2009) (declining to award delinquency charges associated with
the unpaid dues as part of a default judgment because plaintiffs, in their complaint,
demanded only delinquency charges on the unpaid contributions).
Khurana presently seeks damages pursuant to the Wage Statement and Wage
Notice provisions of the NYLL for Defendants’ failure to provide mandatory
information regarding Khurana’s rates of pay and terms of employment. See Pl.
Findings at 17-18. Although particularized and substantiated in Plaintiff’s Proposed
Findings of Fact, these requests for relief for additional violations by JMP USA are
not concretely articulated in the Complaint, which was never amended prior to the
filing of the instant motion for a default judgment.

Compare Compl. with Pl.

Findings. Accordingly, as the Corporate Defendant was never given notice of these
claims, the Court denies Khurana’s application for a default judgement for violations
of NYLL sections 195(1) and 195(3).
Based on the foregoing, the Court enters a default judgment against JMP USA
for its failure to pay Plaintiff the overtime premium mandated by both the FLSA and
the NYLL and a separate additional failure to compensate Plaintiff properly in
accordance with the NYLL’s spread of hours provisions.

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III.

JOINT AND SEVERAL LIABILITY OF SINGH
Having found the Corporate Defendant liable, the Court next turns to whether

at the bench trial held on June 29, 2016, Plaintiff established liability with respect to
the Individual Defendant who proceeded pro se after JMP USA’s default.
A. Findings of Fact
The following constitutes the Court’s Findings of Fact pursuant to Federal
Rule of Civil Procedure 52(a)(1).1 These Findings of Fact are drawn from witness
testimony at trial and the trial exhibits. In general, having considered all of the
evidence (including the credibility of the witnesses), the Court found Khurana’s
testimony corroborated by other evidence was credible with certain exceptions noted
below.
Sometime in 2011, Singh formed and became the sole shareholder of JMP USA,
which was in turn the owner and operator of USA Gas Station located at 515 Old
Country Road in Westbury, Nassau County, New York. Trial Transcript (“Tr.”) at 11,
87-88, 109. In the Joint Pre-Trial Order, the parties stipulated that JMP USA “was
an enterprise engaged in commerce or in the production of goods for commerce
subjecting it to regulation under the FLSA during the time period of Plaintiff’s
employment. Joint Pre-Trial Order (“JPTO”) ¶ 7. Singh, as JMP USA’s president
and sole officer, was the sole signatory to the lease of the premises of USA Gas Station
and managed its day-to-day operations. Tr. at 87, 89-92. In his role as president and
manager of JMP USA and USA Gas Station, Singh possessed the authority to hire

To the extent that any Finding of Fact reflects a legal conclusion, it shall to that extent be
deemed a Conclusion of Law, and vice-versa.
1

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and fire employees, to decide their work schedules, and to decide their compensation.
Tr. at 92.
USA Gas Station did business seven days a week. Tr. at 13. From May
through November, it was open 7:00 a.m. to 10:00 p.m., Monday through Saturday,
and 8:00 a.m. and 8:00 p.m. on Sundays. Tr. at 13, 93. From November through
April, USA Gas Station closed one hour earlier Monday through Saturday. Tr. at 93.
Plaintiff worked as a gas station attendant from on or about July 2, 2012 to
about July 6, 2014 and was Defendants’ sole employee. Tr. at 10-11, 17, 50, 88, 91,
94-95, 99, 102. Khurana’s primary responsibility was to sell gasoline to customers.
Tr. at 12. Singh hired and supervised Plaintiff, determined Plaintiff’s hourly wage,
and set Plaintiff’s work schedule on behalf of JMP USA. Tr. at 11-13, 15, 97, 101102.
For his first year of employment with Defendants, Plaintiff worked seven days
a week. Tr. at 13. Periodically, during the second year of Plaintiff’s employment,
Plaintiff received one day off each week. Tr. at 13-14. Throughout this time, Plaintiff
regularly worked from the time USA Gas Station opened in the morning until it
closed at night. Tr. at 14-15. With the exception of a three-week period after
Hurricane Sandy during which the gas station was closed, Khurana worked every
week according to the above schedule for the duration of his employment. Tr. at 16.
Defendants did not regularly provide Plaintiff with an uninterrupted meal break
during his shifts. Tr. at 17, 57.

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Defendants never recorded the number of hours Plaintiff worked each day or
each week by means of a time clock or time sheets. Tr. at 95-97, 99.

Khurana,

however, did complete shift reports also called closing sheets, on which he indicated
whatever money he was paid in cash and occasionally the number of hours he worked
for a particular week. Tr. at 19-20, 58; see Plaintiff’s Trial Exhibit (“Pl. Ex.”) 1-84.
These shift reports corroborate Khurana’s testimony that he regularly worked more
than ten hours per day and often in excess of twelve hours per day. Tr. at 21; see,
e.g., Pl. Ex. 1, 11, 36. Singh, in fact, admitted that Plaintiff worked at least sixty to
seventy hours per week, every week, for two years straight. Tr. at 100.
During the entirety of Khurana’s employment, Plaintiff maintains that
Defendants always paid him at a rate of $8.00 per hour without any premium or
bonus while he worked in excess of ten hours a day and/or forty hours per week. Tr.
at 12-13, 20-22, 97, 101. It is undisputed that Khurana was paid on a weekly basis
out of the register in cash. Tr. at 17, 55-56, 95, 103-105. According to Khurana, Singh
instructed him to take $8.00 out for every hour that he worked. Tr. at 20. Plaintiff
calculated his weekly pay by multiplying the number of hours he worked by $8.00.
Id. The amount that Plaintiff took in cash was indicated on that day’s shift sheet.
Tr. at 96, 101; see Pl. Ex. 1-84. Singh admitted that Plaintiff was paid in this manner
and that Khurana reported his weekly pay on the shift reports every week for the
duration of his employment. Tr. at 96, 101. Defendants never provided Plaintiff with
paystubs or receipts indicating his weekly pay. Tr. at 18-19, 102. Plaintiff’s Exhibits
1 through 84, which were received into evidence at trial, show the compensation

17

Plaintiff was paid for most weeks of his employment, and, when that weekly total is
divided by $8.00 to ascertain the number of hours worked per week, the product
corroborates Plaintiff’s testimony and the hours noted on several of the reports.
Compare Pl. Ex. 1-84 with Est. Calc. of Dams. In his deposition testimony, which
was entered into evidence, Singh acknowledged that Khurana worked at least 60 to
70 hours per week, and referenced $8.00 per hour as the only rate of pay used during
Plaintiff’s employment. See Tr. 97, 100.
Although Defendants never dispute their failure to comply with the NYLL’s
spread of hours rule and claimed in the Answer and the Joint Pre-Trial Order that
Plaintiff was not paid overtime because he was exempt from those requirements as a
manager, at trial, Singh claimed for the first time that Defendants in fact paid
Plaintiff the overtime premium required under both the FLSA and NYLL. See Tr.
118-19; Defendant’s Proposed Findings of Fact and Conclusions of Law (“Def.
Findings”) at 3-4, DE [42-3]. At trial Singh did not dispute Plaintiff’s total weekly
cash pay as noted in the shift reports, but asserted that it was compensation for fewer
hours than Plaintiff claims, paid at the proper time-and-half rate for all hours in
excess of the initial forty per week. See Tr. at 118. Singh never provided any pay
stubs or records of any kind reflecting that this was the actual arrangement at USA
Gas Station under which Plaintiff was employed and instead urges the Court to credit
his testimony because no reasonable person would work for two years more than forty
hours a week without receiving overtime. See Tr. 95-97; Def. Findings at 3-4.

18

The Court rejects this logic as patently unreasonable, and, in any event, it runs
counter to the purposes of the FLSA and NYLL. See Hengjin Sun v. China 1221, Inc.,
12-CV-7135, 2016 WL 1587242, at *4 (S.D.N.Y. Apr. 19, 2016) (citing Chen v. New
Fresco Tortillas Taco LLC, 15 Civ. 2158, 2015 WL 5710320, at *7 (S.D.N.Y. Sept. 25,
2015)) (noting that both the FLSA and NYLL share a common purpose of deterring
wage violations and compensating underpaid workers). Additionally, as an employer,
it is Singh’s responsibility to keep accurate records of the number of hours and rate
of pay of his employees, which he failed to do. See Amaya v. Superior Tile & Granite
Corp., 10 CIV. 4525, 2012 WL 130425, at *7 (S.D.N.Y. Jan. 17, 2012) (“When an
employer fails to keep accurate records, or keeps no records, courts permit the
employee to carry his burden of proof [under the FLSA and NYLL] based upon his
recollection of hours worked, which is presumed to be correct.”). Finally in this
regard, the Court notes that Singh’s demeanor on the stand during this part of his
testimony was not credible either. Accordingly, the Court declines to adopt Singh’s
testimony as to the number of hours Khurana worked and his pay rate and instead
credits Plaintiff’s testimony, which was corroborated in the weekly shift sheets
received into evidence without objection. See JPTO ¶ 10; Tr. at 7-8; Pl. Ex. 1-84.
At trial, Singh attempted repeatedly to introduce documents that he alleged
were from an unidentified technician that serviced his gas pumps in an attempt to
prove his counterclaim that Plaintiff was stealing from Defendants and to impeach
Khurana’s credibility. Tr. at 106-07. Plaintiff timely objected on the grounds of
hearsay and that these documents were not included in the Joint Pre-Trial Order.

19

Id. Nevertheless, Singh claimed that this technician told him that the pumps at USA
Gas Station were misreporting the actual amounts of fuel being sold during Plaintiff’s
employment. Tr. at 113-14. Singh went on to allege that Khurana somehow caused
the pumps to misreport to facilitate his theft of funds from JMP USA. Id. Singh
admitted that he had no personal knowledge regarding the theft or the misreporting
pumps, id. at 122, and offered no other evidence in support of his counterclaim. Thus,
the evidence is insufficient to establish that Plaintiff stole any money from
Defendants, whether by manipulating the gas pumps or otherwise.
B. Conclusions of Law
For the reasons set forth below, the Court concludes that Plaintiff has satisfied
his burden in establishing that the Individual Defendant, as well as JMP USA,
violated the overtime and spread of hours provisions of the FLSA and NYLL, and that
Khurana is thus entitled to recover damages from Singh, who is jointly and severally
liable with the Corporate Defendant. The Court further determines that Singh failed
to satisfy his burden with respect to his counterclaim for conversion having proffered
no admissible evidence in support.
1. Burden of Proof
It is well established that the plaintiff “bear[s] the burden of proof to establish
all claims and damages by a preponderance of the evidence.” Tapia v. Blch 3rd Ave.
LLC, 14 Civ. 8529, 2016 WL 4581341, at *4 (S.D.N.Y. Sept. 1, 2016). A defendant
must carry this same burden with respect to any affirmative defenses they assert or

20

counterclaims they bring.

See Wechsler v. Hunt Health Sys., Ltd., 330 F. Supp. 2d

383, 403 (S.D.N.Y. 2004).
2. Liability for Violations of the FLSA and NYLL
The Court first examines Singh’s liability under the FLSA and NYLL. Plaintiff
testified that Singh violated the FLSA and NYLL by failing to pay the overtime and
spread of hours pay required by law. See Pl. Findings at 5-9, 14-15; see also Compl.
¶¶ 51-64. Plaintiff claims that he worked “more than forty (40) hours per week for
the entire two years he worked for USA Gas Station” and was never paid any
premium over his base rate of pay of $8.00. See Pl. Findings at 9, 14-15. Khurana
further argues that Defendants did not prove by a preponderance of the evidence that
the overtime pay law does not apply due to the executive exemption. Id. at ¶ 13.
Defendant Singh counters, without any reference to the testimony or evidence at
trial, that Plaintiff was paid a base rate of pay of $8.00 per hour and overtime pay of
$12.00 per hour. See Def. Findings at 2-3. Also without any evidence or substantive
explanation, Singh further asserts that the exhibits that Plaintiff entered into
evidence at trial were altered to implicate him and should be disregarded. See id. at
3-5.
a. Threshold Issues
Before addressing the question of Defendants’ liability and Plaintiff’s damages,
the Court notes that Khurana has satisfied the threshold issues for bringing an action
under the FLSA and NYLL. As an initial matter, USA Gas Station is subject to the
FLSA’s wage-and-hour provisions because it was “an enterprise engaged in

21

commerce” and, at all relevant times, its annual gross volume of sales and business
exceeded $500,000. Compare 29 U.S.C. §§ 206(a), 207(a)(1) with JPTO ¶ 5, supra at
20. Therefore, the Court has: (i) subject matter jurisdiction over Plaintiff’s claims
arising under the FLSA pursuant to 28 U.S.C. §§ 1331 and 1337; and (ii)
supplemental jurisdiction over Plaintiff’s claims arising under the NYLL pursuant to
28 U.S.C. § 1367 because they form part of the same case or controversy. See Tapia,
2016 WL 4581341 at *4 (observing that the court had subject matter jurisdiction over
the plaintiff’s claims arising under the FLSA and NYLL). Moreover, venue is proper
in the Eastern District of New York pursuant to 28 U.S.C. § 1391 because USA Gas
Station Shop is a domestic business corporation organized under the laws of New
York, with a sole and principal place of business located at 15 Old Country Road in
Westbury, Nassau County, New York. See Tr. at 11, 87-88, 109; see also 28 U.S.C. §
1391; Tapia, 2016 WL 4581341, at *4.
b. Whether Singh is Individually Liable as Plaintiff’s
Employer
Initially, the Court addresses whether Singh is individually liable for any
overtime and spread of hours compensation due to Plaintiff. Pursuant to the FLSA,
an employer includes “any person acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d). “The statutory standard
for employer status under the NYLL is nearly identical to that of the FLSA.”
Hernandez v. Jrpac Inc., 14 Civ. 4176, 2016 WL 3248493, at *22 (S.D.N.Y. June 9,
2016); see also Switzoor v. SCI Engineering, P.C., 11 Civ. 9332, 2013 WL 4838826, at
*6 (S.D.N.Y. Sept. 11, 2013) (noting that the courts of the Southern District of New

22

York have applied the same employer analysis to the FLSA and NYLL). Further, “an
employer may include an individual owner who exercises a sufficient level of
operational control in the company’s employment of employees.” Kalloo v. Unlimited
Mech. Co. of NY, Inc., 977 F. Supp. 2d 187, 201 (E.D.N.Y. 2013) (citing Irizarry v.
Catsimatidis, 722 F.3d 99, 104-11 (2d Cir. 2013)); accord Switzoor, 2013 WL 4838826,
at *6 (observing that “[a] person may not be held individually liable for a company’s
FLSA violations simply because he was an executive of that company”).

In

determining whether an individual is an employer, courts consider the same factors
that apply to corporations, namely “whether the individual: ‘(1) had the power to hire
and fire 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.’” Gillian v. Starjam Rest. Corp., 10 Civ. 6056, 2011
WL 4639842, at *4 (S.D.N.Y. Oct. 4, 2011); see Gayle v. Harry’s Nurses Registry, Inc.,
07-CV-4672, 2009 WL 605790, at *9 (E.D.N.Y. Mar. 9, 2009) (quoting Keun–Jae Moon
v. Joon Gab Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002) (quoting Donavan v.
Agnew, 712 F.2d 1509 (1st Cir. 1983))) (“The overwhelming weight of authority is that
a corporate officer with operational control of a corporation’s covered enterprise is an
employer along with the corporation, jointly and severally liab[le] under the FLSA
for unpaid wages.”) (internal quotation marks omitted).
Here, Singh conceded that he is the owner, officer, and manager of JMP USA
and USA Gas Station and that he exercised control over the terms and conditions of
Plaintiff’s employment. Tr. at 89-97. He also ran the day-to-day operations of the

23

business and hired Plaintiff. Tr. at 87, 90-91. These facts are sufficient to establish
that Singh was Plaintiff’s employer pursuant to the FLSA and NYLL. See Elerberth
v. Choice Sec. Co., 91 F. Supp. 3d 339, 353 (E.D.N.Y. 2015) (holding that an individual
was an employer pursuant to the FLSA where he “exercised sufficient operational
control over [the organization’s] employees during [the plaintiff’s] employment”);
Alladin v. Paramount Mgmt., LLC, 12 Civ. 4309, 2013 WL 4526002, at *4 (S.D.N.Y.
Aug. 27, 2013) (holding that a defendant who had supervisory authority over the
plaintiff and established the terms of her employment was an employer under the
FLSA).

Accordingly, Singh and JMP USA are jointly and severally liable for

Defendants’ violations of the overtime and spread of hours provisions provisions of
the FLSA and NYLL. See Gayle, 2009 WL 605790, at *9.
c. Overtime Violations under the FLSA and NYLL
As Singh failed to prove by a preponderance of the evidence that Khurana was
exempt from the FLSA or NYLL because he was employed in an executive capacity
at USA Gas Station, the FLSA and NYLL govern Plaintiff’s employment.

As

explained above, pursuant to both the FLSA and NYLL, “employees working more
than forty hours per week [must] be compensated for overtime work at a rate of oneand-a-half times their standard rate.” Clougher v. Home Depot U.S.A., Inc., 696 F.
Supp. 2d 285, 289 (E.D.N.Y. 2010); see 29 U.S.C. § 207(a)(1) (setting forth this
standard); N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2 (adopting the FLSA’s
provisions and exemptions); D’Arpa v. Runway Towing Corp., 12-CV-1120, 2013 WL
3010810, at *18 (E.D.N.Y. June 18, 2013) (“The NYLL, like the FLSA, requires that

24

employers pay one and one-half times an employee’s regular rate of work performed
in excess of forty hours a week.”); Jemine v. Dennis, 901 F. Supp. 2d 365, 375
(E.D.N.Y. 2012) (“The New York Labor Law mirrors the FLSA in most aspects,
including its wage and overtime compensation provisions.”). However, employees
employed in a “bona fide executive capacity” are exempt from the overtime provisions
of both statutes. 29 U.S.C. § 213(a)(1); N.Y. Lab. Law § 651(5)(c); see Callari v.
Blackman Plumbing Supply Inc., 988 F. Supp. 2d 261, 275 (E.D.N.Y. 2013) (observing
that the FLSA and NYLL overtime and minimum wage provisions do not apply to
employees “who are employed in ‘a bona fide executive . . . capacity’. . . .”).
Although neither the FLSA nor the NYLL defines the term “executive” for
purposes of the executive exemption, the United States Department of Labor (“DOL”)
has promulgated regulations to aid in the analysis of whether an employee is exempt
from the FLSA’s overtime and minimum wage provisions. See 29 C.F.R. §§ 541.0 et
seq. (the “Regulations”); see also 29 U.S.C. § 213(a)(1) (directing the Secretary of
Labor to define, among other terms, “executive” for purposes of the executive
exemption); Callari, 988 F. Supp. 2d at 275-76 (observing that the “[R]egulations
have the force of law, and are generally given controlling weight”). To that end, courts
in the Second Circuit also look to the Regulations in determining whether an
employee is exempt under the NYLL. See N.Y. Comp. Codes R. & Regs. tit. 12 § 1422.2 (adopting the FLSA’s provisions and exemptions); see also Jackson v. Bloomberg,
L.P., 298 F.R.D. 152, 160 (S.D.N.Y. 2014) (“FLSA’s exemptions are incorporated into
the NYLL.”); Gardner v. W. Beef Props., Inc., 07-CV-2345, 2013 WL 1629299, at 3 n.2

25

(E.D.N.Y. Mar. 25, 2013) (“New York law follows the FLSA on the standards that
govern the executive exemption.”) (Report and Recommendation), adopted by 2013
WL 1632657 (E.D.N.Y. Apr. 16, 2013); Scott v. SSP Am., Inc., 09-CV-4399, 2011 WL
1204406, at *6 n. 7 (E.D.N.Y. Mar. 29, 2011) (internal citations omitted) (“Because
New York’s overtime provisions mirror and/or expressly adopt federal wage law,
federal courts evaluate New York’s executive exemption by reference to the Fair
Labor Standards Act of 1938 and its attendant regulations, set forth in the Code of
Federal Regulations.”). Relevant here, the Regulations provide that:
The term “employee employed in a bona fide executive capacity” . . .
shall mean any employee:
(1) Compensated on a salary basis at a rate of not less than $455
per week (or $380 per week, if employed in American Samoa
by employers other than the Federal Government), exclusive
of board, lodging or other facilities;
(2) Whose primary duty is management of the enterprise in which
the employee is employed or of a customarily recognized
department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more
other employees; and
(4) Who has the authority to hire and fire other employees or
whose suggestions and recommendations as to the hiring,
firing, advancement, promotion or any other change of status
of other employees are given particular weight.
29 C.F.R. § 541.100(a) (effective until December 1, 2016 after, all events at issue in
this case occurred); see Davis v. Mountaire Farms, Inc., 551 F. Supp. 2d 343, 348 (D.
Del. 2008) (holding that new regulations promulgated by Secretary of Labor for
determining whether employee is an executive employee exempt from FLSA’s
overtime compensation provisions did not apply retroactively) (citing Velazquez–
Fernandez v. NCE Foods, Inc., 476 F.3d 6, 14 n. 3 (1st Cir. 2007) (noting that

26

administrative regulations generally are not given retroactive effect)). It is wellestablished that “[i]t is the employer’s burden to demonstrate that it is entitled to a
particular exemption.” Kahn, 331 F. Supp. 2d at 117; see also Martinez v. Hilton
Hotels Corp., 930 F. Supp. 2d 508, 519-20 (S.D.N.Y. 2013) (“An employer seeking to
rely upon an exemption as a defense to overtime bears the burden of proving that
such exemption applies.”); Indergit v. Rite Aid Corp., 08 Civ. 9361, 2010 WL 2465488,
at *2 (S.D.N.Y. June 16, 2010) (“[T]he employer bears the burden of proving that [an
employee] has been properly classified as an exempt employee”); Clougher, 696 F.
Supp. 2d at 289 n.4 (observing that the “application of the ‘executive exemption’ is an
affirmative defense, which any defendant employer bears the burden of proving by a
preponderance of the evidence”). Moreover, “because the FLSA is a remedial act, its
exemptions, such as the bona fide executive’ exemption . . . are to be narrowly
construed.” Martin v. Malcom Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991).
In their Joint Pre-Trial Order, Defendants raised the affirmative defense that
Khurana was exempt from the FLSA and NYLL’s overtime provisions pursuant to
the executive exemption as he “was hired as management exempt personnel to
oversee retail sale of petroleum and other convenient merchandise stocked on the
premises.”

JPTO at ¶ 4(i).

Although these specific job responsibilities were

substantiated at trial, because Khurana was the sole employee of USA Gas Station
and was directly supervised by Singh, the exemption does not apply. Compare 29
C.F.R. § 541.104(a) (“To qualify as an exempt executive under § 541.100, the employee
must customarily and regularly direct the work of two or more other employees.”);

27

N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (exempting from the New York State
overtime rate only those employees concurrently exempt under sections 7 and 13 of
29 U.S.C.A. 201 et seq., the FLSA, as amended) with Tr. at 12, 17, 90-91, 94, 101.
Additionally, it is undisputed that Plaintiff was not paid on a salaried basis; instead,
he was paid at an hourly rate. Tr. at 12-13, 20, 97, 101. Accordingly, these facts
establish that Plaintiff was not covered by the executive exemption, and therefore
Defendants’ affirmative defense fails.
Regarding Khurana’s actual hours worked, Defendant Singh conceded that
Plaintiff regularly worked sixty to seventy hours a week for two straight years as an
employee at USA Gas Station. Tr. at 100. Singh does not dispute that Plaintiff was
required to complete shift reports every time he closed the gas station at night, which
indicated the amount he received for his weekly cash pay that came directly from the
register. See Tr. at 19-20, 55-56, 96, 98, 101, 104-105; Pl. Ex. 1-84. On occasion,
Plaintiff also wrote down the number of hours he worked for the week, and each
notation exceeded the forty-hours-per-week threshold set by the FLSA and NYLL.
Tr. at 19-20; Pl. Ex. 1, 11, 36. When Plaintiff’s weekly pay is divided by his hourly
wage, the shift sheets indicate that Plaintiff worked significantly more hours than
Defendant Singh claimed, at times exceeding 100 hours per week. See Est. Calc. of
Dams. Accordingly, since the Court determined that Defendants paid Plaintiff $8.00
per hour for all the hours that he worked, Plaintiff has established by a
preponderance of the evidence that Singh violated the overtime provisions of the
FLSA and NYLL by failing to pay him at a rate equal to one-and-one-half times his

28

normal rate of pay for hours worked in excess of forty in a given week. See supra at
17-19; Tr. at 13, 20-21.
d. Spread of Hours Violations under the NYLL
In addition to the ongoing overtime violation described above, as Khurana is a
non-exempt employee, the Court also determines that Singh is liable also for spread
of hours violations. Pursuant to the NYLL, a minimum wage employee is entitled to
one additional hour’s pay at the basic minimum hourly wage rate for any day in which
the employee works more than ten hours. See Berrios v. Nicholas Zito Racing Stable,
Inc., 849 F. Supp. 2d 372, 389 (E.D.N.Y. 2012) (citing 12 N.Y.C.R.R. § 142-2.4). As of
the December 31, 2013, the basic minimum hourly wage rate rose to $8.00 per hour
in New York State. See 12 N.Y.C.R.R. § 142-2.1. Defendants never paid Plaintiff any
premium beyond his $8.00 per hour wage for each day Khurana worked a shift in
excess of ten hours during his entire two years of employment at USA Gas Station.
See supra at 17-19.

Accordingly, in addition to the ongoing overtime violation

discussed above, Plaintiff is entitled to unpaid spread of hours compensation from
Singh for each day he worked from December 31, 2013 until on or about July 7, 2014.
e. NYLL § 195 Claims
The Court, however, declines to find that Singh violated Sections 195(1) or
195(3) of the NYLL with respect to Wage Notice and Wage Statement statutory
liability because he neither expressly or implicitly consented to the pleadings being
amended during or after the bench trial as would allow the addition of these
otherwise unpled causes of action.

29

As neither of these claims appear in the Complaint, which was never amended
or superseded prior to trial, nor the Joint Pre-Trial Order, Plaintiff’s request for a
judgment in his favor on these two causes of action, would constitute a motion to
amend the pleadings post trial. See Rule 15(b); Compl.; JPTO. Federal Rule of Civil
Procedure 15(b)(2), which governs such amendments, states:
For Issues Tried by Consent. When an issue not raised by the pleadings
is tried by the parties’ express or implied consent, it must be treated in
all respects as if raised in the pleadings. A party may move – at any
time, even after judgment – to amend the pleadings to conform them to
the evidence and to raise an unpleaded issue. But failure to amend does
not affect the result of the trial of that issue.
Fed. R. Civ. Pro. 15(b)(2). Defendant did not expressly consent to amending the
pleadings at trial nor did he in his testimony address the issue of wage statements or
notices directly as could support a finding of implied waiver. See Tr. at 106-118.
Additionally, Plaintiff makes no argument in his demand for damages under NYLL
§ 195 that an implicit waiver occurred. See Pl. Findings at 17-18. Any reference to
a lack of proper wage notices or statements cannot itself support a finding of implied
waiver as these facts were independently relevant regarding Defendants’ willfulness
and/or Plaintiff’s burden with respect to substantiating his hours for liability and
damages. See In re NXXI, Inc., 11-23712, 2014 WL 2978175, at *5 (Bankr. S.D.N.Y.
July 2, 2014), aff'd sub nom. In re NXXI Inc., 14-CV-8082, 2016 WL 6267973
(S.D.N.Y. Oct. 25, 2016) (citing Grand Light & Supply Co. Inc. v. Honeywell Inc., 771
F.2d 672, 680 (2d Cir. 1985) (noting that the purpose of Rule 15(b) is to allow
pleadings to conform to issues actually tried, not to extend pleadings to issues
inferentially suggested by evidence in the record); 3 James Wm. Moore et al., Moore's

30

Federal. Practice ¶ 15.18[1] (3d ed. 2013) at 15–90 (“A court may not find consent
when evidence supporting an issue allegedly tried by implied consent is also relevant
to other issues actually pleaded and tried.”)). Accordingly, the Court declines to allow
such an amendment and dismisses Plaintiff’s claims under NYLL § 195(1) and (3) in
their entirety.
3. Counterclaim
Finally, the Court dismisses Singh’s counterclaim as he has provided only
inadmissible hearsay in support of his allegation that Plaintiff was stealing from JMP
USA by manipulating the gas pump records. Under the Federal Rules of Evidence,
hearsay is any statement that “(1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.” Fed. R. Evid. § 801(c). “Hearsay is inadmissible,
even if relevant, unless there is an applicable exception.”

Amerisource Corp. v.

RxUSA Int’l Inc., 02-CV-2514, 2009 WL 235648 at *1 (E.D.N.Y. Jan. 30, 2009) (citing
Fed. R. Evid. § 802). Consequently, hearsay that does not fall under an exception
cannot sustain a party’s evidentiary burden in a civil proceeding.

See Burke v.

Gutierrez, 04 CIV. 7593, 2006 WL 89936, at *7 (S.D.N.Y. Jan. 12, 2006), aff’d sub
nom. Burke v. Evans, 248 F. App’x 206 (2d Cir. 2007) (“Inadmissible hearsay is
insufficient to establish a prima facie case of discrimination”).
At trial, Singh attempted to introduce evidence in support of his counterclaim
that is barred as inadmissible hearsay, specifically, a report by an unnamed
technician whom he claims serviced the USA Gas Station’s pumps. Tr. at 113-116,

31

122. The unidentified technician was never deposed, proffered in the Joint Pre-Trial
Order filed with the Court, or produced as a witness at trial, and no exception to the
bar against hearsay allowed Singh to testify on the technician’s behalf. Compare Fed.
R. Ev. 801-803 with Tr. at 113-116, 122. The alleged technician’s report was also not
admitted into evidence at trial as Singh failed to establish a proper foundation and it
was not identified in the Joint Pre-Trial Order. Compare Fed. R. Ev. 803(6)(B) with
Tr. at 113-116, 122 with JPTO. Accordingly, as the Individual Defendant failed to
sustain his burden with regard to his counterclaim against Khurana, the Court
dismisses it in its entirety.
C. Damages
Having concluded that Plaintiff has established Defendants’ liability for
violations of the FLSA and NYLL, the Court considers whether Plaintiff has satisfied
his burden of establishing the damages that he claims. Regarding the bench trial, it
is well-established that such a party seeking damages “must prove the amount of
damages by a preponderance of the evidence.” Solis v. SCA Rest. Corp., 938 F. Supp.
2d 380, 392 (E.D.N.Y. 2013). With respect to JMP USA, since it is in default, the
court must ascertain damages with “reasonable certainty.” Credit Lyonnais Sec., Inc.
v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).
To this end, the Court relies upon the Findings of Fact herein with respect to
its determination of damages against both Defendants. Khurana and Singh provided
sworn testimony and documentary evidence at trial relevant to the determination of
damages for both Defendants.

Accordingly, as the Court may hold an inquest

32

concerning the award of damages against the defaulting party, the Court relies upon
the evidence and testimony produced at trial with respect to its determination of
damages against both Defendants, who, in any event, are jointly and severally liable.
See Perez v. Jasper Trading, Inc., 05-CV-1725, 2007 WL 4441062, at *1 (E.D.N.Y.
Dec. 17, 2007) (holding an evidentiary hearing to determine damages whereat only
one party appeared and offered evidence).
For the reasons set forth below, the Court concludes that Plaintiff is entitled
to recover $39,427.44 in compensatory and liquidated damages and prejudgment
interest, as well as an additional amount for post-judgment interest accruing in
accordance with federal law. The Court further grants Plaintiff leave to file an
application for attorneys’ fees and costs.
1. Statutes of Limitations
In calculating the damages to be awarded, the Court first examines whether
the entire time frame for which Khurana seeks to recover is allowable under the
FLSA and NYLL’s statutes of limitations.
A cause of action arising under the FLSA must “be commenced within two
years after the cause of action accrued, . . . except that a cause of action arising out of
a willful violation may be commenced within three years after the cause of action
accrued.” See 29 U.S.C. § 255(a). For that reason, claims of willful violations of the
FLSA are subject to a three-year statute of limitations. See Cohen v. Gerson Leman
Grp., Inc., 686 F. Supp. 2d 317, 331 (S.D.N.Y. 2010) (“The FLSA has a two-year
statute of limitations except in the case of willful violations, for which the statute of

33

limitations is three years.”). A violation of the FLSA is considered willful “if the
employer ‘either knew or showed a reckless disregard for the matter or whether its
conduct was prohibited by the [FLSA].” Quiroz v. Luigi’s Doleria, Inc., 14-CV-871,
2016 WL 2869780, at *3 (E.D.N.Y. May 17, 2016) (quoting Young v. Cooper Cameron
Corp., 586 F.3d 201, 207 (2d Cir. 2009)); see 5 C.F.R. §551.104 (defining “reckless
disregard” as a “failure to make adequate inquiry into whether conduct is in
compliance with the [FLSA]”). It is well-established that “[t]he plaintiff bears the
burden of proving willfulness, and ‘[a]ll that is required is that the employer knew or
had reason to know that it was or might have been subject to the FLSA.’” Eschmann,
2014 WL 1224247, at *5 (quoting Donovan v. Kaszycki & Sons Contractors, Inc., 599
F. Supp. 860, 870 (S.D.N.Y. 1984)).
The NYLL provides for a six-year statute of limitations. See N.Y. Lab. Law §
198(3); see also Eschmann v. White Plains Crane Serv., Inc., 11-CV-5881, 2014 WL
1224247, at *4 (E.D.N.Y. Mar. 24, 2014) (“A plaintiff seeking damages for an overtime
violation under the NYLL has six years from the date of the alleged violation to assert
his claim.”).
Here, Plaintiff has established by a preponderance of the evidence that
Defendants willfully violated the FLSA. Singh himself testified to keeping no record
of the hours and shifts that Plaintiff worked and that he never gave him any form of
a paystub or a receipt documenting his wages, instead paying him always in cash,
directly out of the register. See Tr. 95-97. Defendants in their Answer and in the
Joint Pre-Trial Order, and Singh in his Proposed Findings of Fact and Conclusions of

34

Law exhibit an awareness of the overtime requirements of FLSA and NYLL arguing
that Plaintiff either was not entitled to overtime because he was exempt as a salaried
manager, and alternatively that he was in fact paid all the overtime he was due. See
Answer; JPTO ¶ 4(i); Def. Findings at 2-4. These facts are sufficient to establish, at
a minimum, the requisite recklessness, that Defendants “knew or had reason to know
that [they were] or might have been subject to the FLSA,” warranting application of
the three-year statute of limitations. Eschmann, 2014 WL 1224247, at *5; see also
Reich v. Waldbaum, Inc., 52 F.3d 35, 41 (2d Cir. 1995) (holding that the defendant
acted willfully where the defendant failed to pay the plaintiff overtime based on his
belief that the plaintiff was exempt under the FLSA); Mark v. Gawker Media LLC,
13-CV-4347, 2016 WL 1271064, at *2 (S.D.N.Y. Mar. 29, 2016) (quoting Trimmer v.
Barnes & Noble, Inc., 31 F. Supp. 3d 618, 627 (S.D.N.Y. 2014) (noting that “employers
may be found to have acted recklessly pursuant to the FLSA if they made neither a
diligent review nor consulted with counsel regarding their overtime practices and
classifications of employees); Moon, 248 F. Supp. 2d at 231 (holding that the
defendant’s knowing violations of recordkeeping requirements was sufficient to
establish willfulness under the FLSA); Yang v. ACBL Corp., 427 F. Supp. 2d 327, 33738 (S.D.N.Y. 2005) (holding that the defendant’s knowing failure to pay appropriate
overtime established willfulness under the FLSA).
As Plaintiff is entitled to a three-year statute of limitations under the FLSA,
federal and state law equally cover Khurana’s entire claim. Plaintiff’s filed the
Complaint on July 24, 2014 and now seeks damages from violations running from

35

July 8, 2012 through July 6, 2014.

See Compl.; Est. Calc. of Dams. At 1-3.

Accordingly, Khurana may recover damages under either the FLSA or the NYLL.2
2. Unpaid Overtime Wages
In calculating the exact amount to be awarded, Plaintiff reasonably utilizes the
84 shift reports entered into evidence to substantiate the hours worked during 81
weeks of Khurana’s employment. Compare Pl. Ex 1-84 with Est. Calc. of Dams.
Plaintiff however fails to proffer a rationale for asserting that, for those weeks that
Khurana does not have records, the weekly hours should assumed to be 102 or 96,
which are each markedly higher than the average of his documented weeks of
employment. See Est. Calc. of Dams.
Singh does not address this issue and argues instead that Plaintiff was
properly compensated at the overtime rate and simply worked far fewer hours than
his testimony suggested without any evidentiary support. See Def. Findings at 1-4.
Additionally, Singh asserts that Plaintiff’s calculations should be disregarded
because they are supported only by his “words” and not actual records of his hours,
which he conceded do not exist. Id.

Plaintiff may not recover compensatory damages under both the FLSA and NYLL for the
same time period. See Jin M. Cao v. Wi Liang Lexington Rest., Inc., 08 Civ. 3725, 2010 WL 4159391,
at *3 (S.D.N.Y. Sept. 30, 2010) (“Although plaintiffs are entitled to recover unpaid minimum wages
and overtime pay under both the FLSA and the Labor Law, they may not recover twice.”); Fermin v.
Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 49 n.15 (E.D.N.Y. 2015) (“Plaintiffs may not
recover for unpaid wages under both statutes . . . .”).
2

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i.

Number of Hours Worked

As the number of hours at issue is disputed, the Court examines what amount
of time Plaintiff has proven that he worked for which he is entitled to unpaid overtime
compensation.
Both the FLSA and NYLL require that employers maintain accurate records
of the hours and wages of their employees. See 29 U.S.C. § 211(c) (requiring that
employers “make, keep, and preserve such records of the persons employed by him
and of the wages, hours, and other conditions and practices of employment
maintained by him”); N.Y. Lab. Law § 661 (requiring that employers establish and
maintain payroll records “showing for each week worked the hours worked, the rate
or rates of pay and basis thereof”). Thus, contrary to Singh’s assertion, where an
employer fails to maintain accurate or adequate records, “an employee has carried
out his burden if he produces sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.” Berrios v. Nicholas Zito
Racing Stable, Inc., 849 F. Supp. 2d 372, 379 (E.D.N.Y. 2012) (quoting Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S. Ct. 1187 (1946)); see also Reich v. S.
New England Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997) (internal citations
omitted) (holding that where a defendant fails to maintain required employment
records, the employee may “submit sufficient evidence from which violations of [the
FLSA] and the amount of an award may be reasonably inferred”). A “plaintiff can
meet this burden ‘by relying on recollection alone.’” Santillan v. Henao, 822 F. Supp.
2d 284, 294 (E.D.N.Y. 2011) (quoting Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d

37

327, 335 (S.D.N.Y. 2005)). Where a plaintiff satisfies his or her initial burden, “[t]he
burden then shifts to the employer to show that the inference is not reasonable.”
Ramirez v. Rifkin, 568 F. Supp. 2d 262, 273 (E.D.N.Y 2008).
Here, Defendants failed to maintain adequate records reflecting the number of
hours that Khurana worked as well as his rate of pay. In fact, Singh conceded that
he neither kept any form of payroll records reflecting Plaintiff’s employment at the
USA Gas Station nor did he write down the number of hours that Plaintiff worked.
See Tr. at 94-97. In his Proposed Findings of Fact and Conclusions of Law, Singh
reiterated this point in an effort to urge the Court to disregard the totals on the shift
reports stating that it was not his business’s practice to write down Khurana’s hours
because he trusted and treated him like a brother. Def. Findings at 1-4.

However,

there is no evidence in the record to support Singh’s claim that Plaintiff somehow
doctored the shift reports. See Def. Findings at 3; JPTO ¶ 10; Tr. at 7-8, 121-30.
Instead, the 84 shift reports, which Plaintiff offered, corroborate and supplement
Khurana’s recollection with respect to 81 out of 102 weeks of his employment.
Compare Pl. Ex. 1-84 with Tr. 13-43. Accordingly, as Defendants concede that they
failed to maintain accurate records regarding Plaintiff’s hours at USA Gas Station,
the Court may, and does, rely on Plaintiff’s recollection in conjunction with the
records in determining the amount of unpaid overtime wages that has been proven
by a preponderance of the evidence and with reasonable clarity. Rana v. Islam, --- F.
Supp. 3d ---, 2016 WL 5390941, at *2 (S.D.N.Y. Sept. 26, 2016) (quoting Cuzco v.
Orion Builders, Inc., 262 F.R.D. 325, 331 (S.D.N.Y. 2009)) (“Where, as here, an

38

employer has failed to maintain adequate records of an employee’s time worked as
required under the FLSA, ‘a plaintiff employee must produce only sufficient evidence
to show the amount and extent of that work as a matter of just and reasonable
inference.’”).
Applying these standards, the Court takes the average weekly hours worked
in the 84 shift reports, approximately 78 hours per week, and uses that number
instead of Plaintiff’s suggestion of 102 or 96 hours for those weeks not covered by the
reports, but during which it is undisputed that Plaintiff worked.

See Armata v.

Unique Cleaning Servs., LLC, 13-CV-3625, 2015 WL 12645527, at *5 (E.D.N.Y. Aug.
27, 2015) (extrapolating average weekly hours and wages from time and payroll
records to calculate unpaid overtime damages). Based on the foregoing, the Court
then determines that during the relevant time-period Khurana has substantiated
that he worked 102 weeks and approximately 7,975.75 hours at USA Gas Station.
After subtracting from this total an initial forty hours per week, 3,895.75 hours
qualify as overtime hours for which Defendants never properly compensated Plaintiff.
ii.

Regular and Overtime Rates of Pay

As set forth above, pursuant to both the FLSA and NYLL, an employee’s
overtime rate of pay depends on the employee’s “regular rate.” See 29 U.S.C. §
207(a)(1) (requiring that employers pay covered employees “at a rate not less than
one and one-half times the regular rate” for hours in excess of forty); N.Y. Comp.
Codes R. & Regs. tit. 12, § 138-2.2 (requiring that employers pay employees “at a
wage rate of 1 ½ times the employee’s regular rate for hours worked in excess of” 40).

39

An employee’s “regular rate is ‘the hourly rate actually paid the employee for the
normal, non-overtime workweek for which he is employed.” Doo Nam Yang, 427 F.
Supp. 2d at 338 (S.D.N.Y. 2005) (quoting Walling v. Youngerman-Reynolds Hardwood
Co., 325 U.S. 419, 424, 65 S. Ct. 1242 (1945)). To that end, the “regular rate” is
calculated by “dividing the employee’s weekly compensation by the number of hours
for which that compensation is intended.” Moon, 248 F. Supp. 2d at 230.
Plaintiff testified that he was an hourly employee and that his regular rate of
pay was $8 per hour at all relevant times. See Tr. at 13. Defendant Singh did not
dispute these two facts. See Tr. at 97; Def. Findings at 2-4.

Accordingly, the Court

concludes that Plaintiff’s regular rate of pay at all relevant times was $8 per hour,
while his overtime rate of pay would have been $12 per hour, a rate of underpayment
of $4.00 per qualifying overtime hour. Based on the foregoing, Plaintiff is entitled to
recover $15,583 in unpaid overtime compensation for the 3895.75 overtime hours he
worked.
iii.

Calculation of Unpaid Spread of Hours

For Defendants’ violations of the NYLL’s spread of hours requirements, the
Court awards Plaintiff one hour at the applicable minimum wage rate for each of his
shifts in excess of ten hours in length calculated as follows. Each shift of Khurana’s
employment with USA Gas Station exceeded 10 hours, and, although he was never
provided an uninterrupted break, Defendants offered no additional compensation
beyond Plaintiff’s $8 an hour wage. See Tr. at 21-22. From December 31, 2013
through to the end of him employment on July 7, 2014, Khurana’s wage of $8.00 was

40

equal to the New York State minimum wage. Compare Tr. 13, 97 with N.Y. Lab. Law
§ 652(1). During this time period, Plaintiff testified that he was working six days a
week from opening to closing, shifts of approximately twelve to fifteen hours long. Tr.
at 15. Each of these shifts qualifies for mandatory spread of hours compensation,
which it is undisputed that Defendants failed to pay. See supra at 12-13, 29. Thus,
the total number of qualifying shifts is 163. Accordingly, the Court determines that
Defendants failed to pay Plaintiff $1,304 in spread of hours compensation under the
NYLL by multiplying the total shifts by applicable minimum wage. Based on the
foregoing, with respect to compensatory damages, the Court, therefore, awards
Plaintiff $16,887 for unpaid overtime and spread of hours violations.
3. Liquidated Damages
Plaintiff also seeks liquidated damages under both the FLSA and the NYLL.
See Pl.’s Findings at 15-16. For the reasons set forth herein, Plaintiff is entitled to a
total of $16,887 in liquidated damages.
i.

FLSA Liquidated Damages

Under the FLSA, a plaintiff may recover “in the amount of their unpaid . . .
wages . . . and in an additional equal amount as liquidated damages” absent a
showing that the employer acted in good faith. 29 U.S.C. §§ 216(b), 260; see also
Reiseck Universal Commc’ns of Miami, Inc., 06 Civ. 777, 2014 WL 5374684, at *3
(S.D.N.Y. Sept. 5, 2014) (internal quotation marks and citation omitted) (“For FLSA
claims, liquidated damages may be awarded in an additional amount equal to the
unpaid overtime wages, essentially doubling a plaintiff’s recovery.”); Angamarca v.

41

Pita Grill 7 Inc., 11 CIV. 7777, 2012 WL 3578781, at *7 (S.D.N.Y. Aug. 2, 2012)
(“Liquidated damages under the FLSA are equal to the amount owed in federal
unpaid and overtime wages.”); Jiao v. Shi Ya Chen, 03 Civ. 165, 2007 WL 4944767,
at *16 (S.D.N.Y. Mar. 30, 2007) (“The [FLSA] provides for liquidated damages in
order to compensate employees for the often obscure and hard-to-prove consequences
of having been wrongfully denied pay, rather than to punish employers.”). Having
concluded that Plaintiff is entitled to recover $15,583 in unpaid overtime
compensation under the FLSA and that there is no evidence of Defendants’ good faith,
Khurana is also entitled to recover $15,583 in liquidated damages under that statute.
ii.

NYLL Liquidated Damages

Because the NYLL permits recovery of liquidated damages amounting to 100%
of the total unpaid wages for violations that occurred after April 9, 2011, Plaintiff is
also theoretically entitled to recover under the NYLL an amount equal to the
liquidated damages awarded under FLSA plus his unpaid spread of hours
compensation. Hengjin Sun, 2016 WL 1587242, at *3 (citing N.Y. Lab. Law § 663(1));
see also Rana, 2016 WL 5390941, at *3 (awarding NYLL liquidated damages at a rate
of 100% for overtime, minimum wage, and spread of hours violations occurring from
2012 through 2014). However, “the New York Legislature’s 2009 and 2011 reforms
have spawned ‘an emerging trend towards denying a cumulative recovery of damages’
under the FLSA and NYLL.” Hengjin Sun, 2016 WL 1587242, at *4 (quoting Santana
v. Brown, 14 Civ. 4279, 2015 WL 4865311, at *5 (S.D.N.Y. Aug. 12, 2015)). Courts
have more recently observed that “‘[b]ecause both forms of liquidated damages serve

42

the same purpose and have the same practical effect of deterring wage violations and
compensating underpaid workers,’ NYLL’s recent amendments ‘have undermined the
basis,’ such as it was, for distinguishing between FLSA’s and NYLL’s liquidated
damages provisions.” Hengjin Sun, 2016 WL 1587242, at *4 (quoting Chen v. New
Fresco Tortillas Taco LLC, 15 Civ. 2158, 2015 WL 5710320, at *7 (S.D.N.Y. Sept. 25,
2015)). Accordingly, because Plaintiff is entitled to liquidated damages under the
FLSA, the Court declines to award duplicative overtime liquidated damages under
the NYLL, but will award additional liquidated damages in the amount of $1,304 for
the spread of hours violations that are recoverable only under the NYLL. See supra
41-42.3 Based on the foregoing, Plaintiff is entitled to a total of $16,887 in liquidated
damages.
4. Prejudgment Interest
Plaintiff also seeks prejudgment interest under the NYLL. See Compl. Prayer
for Relief ¶ B; Est. Calc. of Dams. Although it is “well settled” that prejudgment
interest is not awardable under the FLSA, Begum v. Ariba Disc., Inc., 12-CV-6620,
2015 WL 223780, at *3 (S.D.N.Y. Jan. 16, 2015), “the NYLL permits the award of
both liquidated damages and pre-judgment interest.”

Fermin v. Las Delicias

Peruanas Rest., Inc., 93 F. Supp. 3d 19, 38 (E.D.N.Y. 2015). Under the New York
Civil Practice Law and Rules (“CPLR”), “[i]nterest shall be at the rate of nine per

The Court recognizes that this conclusion is contrary to its Reports and Recommendations in
Escobar v. Del Monaco Bros. Indus. Inc., 14-CV-3091 at 26-27 (E.D.N.Y. Jul. 27, 2016) (Report &
Recommendation), adopted by, 2016 WL 4275705 (E.D.N.Y. Aug. 13, 2016) and Euceda v. Preesha
Operating Corp., 14-CV-3143 at 18-20 (E.D.N.Y. July 13, 2016) (Report & Recommendation), adopted
by 14-CV-3143 (E.D.N.Y. Sept 30, 2016). Upon reconsideration of these earlier orders, the Court
concludes that separate awards of liquidated damages under each statute for the same compensatory
damages are inappropriate.
3

43

centum per annum.” N.Y. C.P.L.R. § 5004. Where, as here, unpaid wages are
“incurred at various times, interest shall be computed . . . from a single reasonable
intermediate date.” N.Y. C.P.L.R. § 5001(b); Coulibaly v. Millennium Super Car
Wash, Inc., 12-CV-04760, 2013 WL 6021668, at *15 (E.D.N.Y. Nov. 13, 2013). Courts
have discretion in choosing a reasonable date from which to calculate pre-judgment
interest. See Fermin, 93 F. Supp. 3d at 49 (“Courts applying N.Y. CPLR § 5001 have
wide discretion in determining a reasonable date from which to award pre-judgment
interest . . . .”) (quotation omitted). A common date is “[t]he median date between the
earliest ascertainable date the cause of action existed and the date the action was
filed . . . .” Gunawan, 897 F. Supp. 2d at 93.
Here, the relevant period of employment for Plaintiff’s overtime and spread of
hours claims is July 8, 2012 through July 6, 2014. See Est. Calc. of Dams. 1-3. This
action was filed July 24, 2014. The mid-point between July 8, 2012 and July 24, 2014
is approximately July 16, 2013. The compensatory damages for unpaid overtime
wages and spread of hours due under the NYLL for that time period is $16,887.4
Accordingly, at a rate of 9% per year, the Court awards pre-judgment interest in the
amount of $5,653.44 to Plaintiff.5

This total includes the amount that the Court awarded under the FLSA because the
equivalent compensatory award is available under the NYLL for the same time period. See Santillan,
822 F. Supp. 2d at 298 (holding that prejudgment interest and liquidated damages under NYLL may
be awarded in a matter also substantiating violations of the FLSA for an overlapping time period).
5 This figure was reached by taking the number of days between the mid-point selected, July
16, 2013, and the date of this Order, April 5, 2017 (1,359 days) and multiplying it by the daily interest
rate of $4.16 ($16,887 [principal loan amount] x 0.09 [yearly interest] = $1,519.83 (yearly interest) /
365 days = $4.16 per day interest).
4

44

5. Post Judgment Interest
With respect to Plaintiff’s request for post-judgment interest, although the
Court has exercised supplemental jurisdiction over Khurana’s state-law claims, any
judgment awarded would, nevertheless, constitute a federal judgment. See Cappiello
v. ICD Publications, Inc., 720 F.3d 109, 112 (2d Cir. 2013) (affirming district court’s
refusal to apply New York post-judgment 9% interest rate). Therefore, that judgment
would be governed by the plain language of 28 U.S.C. § 1961, which applies to “any
money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961.
Accordingly, the Court awards post-judgment interest at the statutorily prescribed
federal rate. See Cappiello, 720 F.2d at 112 (citing to 28 U.S.C § 1961(a)-(b)).6
6. Attorneys’ Fees and Costs
Finally, Plaintiff argues that he “is entitled to a statutory award of counsel fees
to be determined at a hearing to be held on a [date] determined by this Court.” Pl.’s
Supp. Br. ¶ 49. Both the FLSA and NYLL allow for an award of “reasonable”
attorney’s fees to a prevailing party. See 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1);
see also Zhen Ming Chen v. New Fresco Tortillas Taco LLC, 15 Civ. 2158, 2015 WL
5710320, at *10 (S.D.N.Y. Sept. 25, 2015) (“Under the FLSA and NYLL, a prevailing

“Interest shall be allowed on any money judgment in a civil case recovered in a district court.
Execution therefor may be levied by the marshal, in any case where, by the law of the State in which
such court is held, execution may be levied for interest on judgments recovered in the courts of the
State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to
the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors
of the Federal Reserve System, for the calendar week preceding[] the date of the judgment. The
Director of the Administrative Office of the United States Courts shall distribute notice of that rate
and any changes in it to all Federal judges … Interest shall be computed daily to the date of payment
except as provided in section 2516(b) of this title and section 1304(b) of title 31, and shall be
compounded annually.” 28 U.S.C. § 1961(a)-(b).
6

45

plaintiff is entitled to reasonable attorneys’ fees and costs.”). Having determined that
Plaintiff established Defendants’ liability for violations of the FLSA and NYLL by a
preponderance of the evidence, the Court concludes that Plaintiff is entitled to a
reasonable award of attorneys’ fees and costs. However, because Plaintiff has not
submitted documentation or other substantiation to support his request, he is
granted leave to submit an application for such fees and costs.
IV.

CONCLUSION
For the reasons set forth above, the Court concludes that Plaintiff has proven

his claims by a preponderance of the evidence and that he is entitled to recover
$39,427.44 in damages and pre-judgment interest with post-judgment interest
accruing at the statutorily prescribed federal rate from Singh. Additionally, a default
judgment shall be entered in this same amount against JMP USA. Singh and JMP
USA are held jointly and severally liable for the damages. Finally, on or before May
5, 2017, Plaintiff may submit an application for attorneys’ fees and costs.

Dated: Central Islip, New York
April 5, 2017

SO ORDERED
/s Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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