Awan v. Durrani et al

Filing 44

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Based upon the foregoing findings of fact and conclusions of law, the Court concludes that Plaintiff has proven his claims by a preponderance of the evidence and that he is entitled to recover $809,760.59 in damages. On or before December 10, 2016, Plaintiff may submit an application for attorneys fees and costs. Ordered by Magistrate Judge Steven I. Locke on 11/10/2016. (Perri, Anthony)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TAHIR CHOUDRY a/k/a CHOUDRY TAHIR
AWAN,
Plaintiff,
-againstHAMID KHAN DURRANI and BAY SHORE
SMOKE SHOP, INC.,

FINDINGS OF FACT
AND CONCLUSIONS
OF LAW
14-CV-4562 (SIL)

Defendants.
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LOCKE, Magistrate Judge:
Plaintiff Choudry Tahir Awan (“Plaintiff” or “Awan”) commenced this action
against Defendants Hamid Khan Durrani (“Durrani”) and Bay Shore Smoke Shop,
Inc. (the “Smoke Shop,” and together with Durrani, “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. See Docket Entry (“DE”) [1].
The Court held a bench trial on March 29, 2016, April 1, 2016, and May 2, 2016 and
now issues its findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).
See DE [35], [37], [39].

Having 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 claims arising under the FLSA and NYLL, and that he is
entitled to $809,760.59 in damages. 1

This action has been assigned to this Court for all purposes pursuant to 28 U.S.C. § 636(c).
See DE [17].
1

1

I.

BACKGROUND
By way of Complaint filed July 30, 2014, Plaintiff commenced this action,

seeking to recover, among other things: (i) unpaid overtime and minimum wages
pursuant to the FLSA and NYLL; (ii) unpaid meal time pursuant to the NYLL; and
(iii) damages for common law breach of contract. See Compl., DE [1], ¶¶ 30-55. In
his Complaint, Plaintiff alleges that during the course of his employment at the
Smoke Shop, he worked eighteen hours per day, seven days per week, and that he
had never been permitted to take any break from work. Id. at ¶¶ 13-15. Plaintiff
also alleges that Defendants breached a loan agreement whereby Awan loaned
Defendants $40,000.00, which would be due and payable on May 7, 2014. Id. at ¶¶
3, 26-28, 53-56. Relevant here, Defendants asserted in their Answer to the Complaint
that “Plaintiff is an exempt employee under the Fair Labor Standards Act” because
he “acted in a management capacity in his employment” at the Smoke Shop. See
Ans., DE [4], ¶¶ 24, 25.
On March 30, 2015, Plaintiff filed a motion seeking summary judgment on each
of his claims and related monetary damages, which Defendants opposed. See DE [18],
[21]. Plaintiff argued, among other things, that “Defendants cannot defend [the]
Motion for Summary Judgment since they have no proof of any records or documents
required by the FLSA.” See Memorandum of Law in Support of Plaintiff’s Motion for
Summary Judgment, DE [18-3], at 1. In opposition, Defendants countered that
Plaintiff “was an exempt employee under FLSA and New York Labor Law because he
acted in an executive and/or administrative capacity in his employment at the . . .

2

Smoke Shop.”

See Memorandum of Law in Opposition to Plaintiff’s Motion for

Summary Judgment, DE [22], at 2.

Defendants further argued that Plaintiff

submitted an affidavit in support of his motion for summary judgment “which
establishe[d] that the Plaintiff did not work the amount of hours he [was] claiming .
. . .” Id.
In its July 1, 2015 Order (the “Summary Judgment Opinion”), the Court
granted in part and denied in part Plaintiff’s motion for summary judgment. See
Awan v. Durrani, No. 14-CV-6562, 2015 WL 4000139, at *16 (E.D.N.Y. July 1, 2015).
Specifically, the Court:

(i) granted Plaintiff’s motion for summary judgment on

Awan’s breach of contract claim with respect to both liability and damages; and (ii)
denied Plaintiff’s motion for summary judgment with respect to Awan’s claims arising
under the FLSA and NYLL. 2 Id. In denying Plaintiff’s motion for summary judgment
with respect to his statutory claims, the Court held that “material questions of fact
exist sufficient to warrant a trial on the issue of whether Awan [was] an ‘employee
engaged in a bona fide executive capacity’ within the meaning of the FLSA and
NYLL.” Id. at *11. However, the Court concluded that Defendants failed to submit
sufficient evidence to support their claim that “Awan [was] an ‘employee engaged in
a bona fide administrative capacity . . . as a matter of law,” and so that affirmative
defense was dismissed. Id. at *13. The Court further held that, “[e]ven if Awan [was]
not covered by the executive exemption . . . summary judgment would still be
inappropriate as to the issue of damages. Id. “Awan’s unsupported affidavit . . .
The Court subsequently entered partial judgment in favor of Plaintiff in the amount of
$40,000.00 for breach of contract damages, as well as prejudgment interest. See DE [38].
2

3

without more, [was] insufficient to justify [the damages he claimed] with a reasonable
degree of certainty.” Id.
As a result, the Court conducted a bench trial on March 29, 2016, April 1, 2016
and May 2, 2016. See DE [35], [37], [39]. At trial, Plaintiff offered testimony from: (i)
himself; (ii) Durrani; (iii) the Smoke Shop’s accountant, William Starita; and (iv) Smoke
Shop customers Reyna Jiminez, Norman Reidel, Lamont Cuffie, and Jeff Jorgensen
(collectively, the “Customer Witnesses”). See Transcript of Bench Trial (“Tr.”) 10:17-22,
20:17-20, 34:15-19, 100:19-21, 116:6-8, 125:17-20, 137:10-12.

Defendants offered

testimony from both Plaintiff and Durrani, but did not present any additional witnesses.
Tr. 194:17-22, 198:7-13.

Following the trial, the parties submitted their proposed

findings of fact and conclusions of law. See Plaintiff’s Proposed Findings of Fact and
Conclusions of Law (“Pl.’s Supp. Br.”), DE [42]; Defendants’ Proposed Findings of Fact
and Conclusions of Law (“Defs.’ Supp. Br.”), DE [43].
II.

FINDINGS OF FACT 3
The Smoke Shop owned and operated a convenience store located at 57 Bay

Shore Road, Bay Shore, New York.

See Joint Pretrial Order Stipulated Facts

For the sake of clarity and a complete record, the Court notes that Defendant Hamid Durrani
was called as witness for both Plaintiff and Defendants. The Court credits none of his testimony.
Throughout his entire time on the stand, Mr. Durrani was evasive, both in tone and demeanor. He often
required multiple prompts from his lawyer to elicit basic testimony such as the year Plaintiff started
working and what he was paid, and then still claimed unconvincingly that he could not recall other
rudimentary facts. See, e.g., Tr. 34:25-39:4 (Durrani unable to recall when he hired or what he paid
Plaintiff, claiming only that he paid a salary that was more than the minimum wage and admitting that
he kept no payroll records), 50:13-51:22 (giving conflicting testimony about the hours Plaintiff worked),
Tr. 53:9-57:10 (both referring to certain records that would show that Plaintiff took a multi-year absence
from the store and then denying that those records existed once he was reminded that the Court had
previously ordered him to disclose those records), 52:17-57:22, 70:11-71:14 (admitting and denying that
Awan worked 80 hours weekly over a seven-day workweek), Tr. 71:22-74:16 (claiming that Awan hired
and fired another worker whose name and dates of employment Durrani could not recall).
3

4

(“JPTO”), DE [28], ¶ 2. Defendant Durrani was the Smoke Shop’s “owner, officer,
director and/or managing member.” Id. at ¶¶ 4, 6, 7; Tr. 34:22-24, 89:22-90:25 (Hamid
Durrani was a 60-percent shareholder and his brother Zahid Durrani was a 40percent shareholder of the controlling corporation). During all relative time periods,
the Smoke Shop had yearly revenues in excess of $500,000. Tr. 103:19-104:13.
Plaintiff worked at the Smoke Shop from approximately December 1989 until
July 1, 2014. JPTO ¶ 7. His duties included restocking merchandise, making coffee,
cleaning windows, working behind the register and maintaining the store. See Tr.
19:4-25, 28:25-29:3, 32:17-21, 117:13-17, 123:17-23, 133:12-16, 147:14-22, 149:11-17,
179:3-9. However, he never managed the store, placed orders for merchandise, made
decisions regarding what merchandise would be purchased, or otherwise discussed
the business with Durrani or anyone else. Tr. 147:18-25, 151:15-16, 179:10-180:3
(Plaintiff placed orders when Mr. Durrani was out of the country and paid with checks
signed by Durrani before he left); see also Tr. 40:9-41:9 (Plaintiff did not have a bank
card or the ability to sign checks for the Smoke shop), 123:4-124:2, 133:17-19
(customers never saw him order or receive merchandise). 4

In addition, it is

undisputed that “Plaintiff did not supervise two or more full-time employees during
the term of his employment” at the Smoke Shop. Defs.’ Supp. Br. ¶¶ 7, 12; see also
Pl.’s Supp. Br. ¶¶ 6, 14; Tr. 29:4-7, 209:16-210:4.

The Court expressly rejects Defendants’ claim that Plaintiff was “in charge” of the store or
had any significant managerial responsibilities. See Tr. 39:5-40:8, 60:25-61:1 (Durrani claiming that
Awan had hiring and firing responsibilities – testimony that the Court rejects due to Durrani’s lack of
credibility as set forth above).
4

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Defendants did not keep records “relating to or reflecting Plaintiff’s jobs,
occupations, work hours, rates of pay, wages []or time records and payroll records,”
and the parties dispute both the number of hours that Plaintiff worked in a given
week as well as his rate of pay, though Defendants admit that Awan worked more
than 40 hours per week. See JPTO ¶ 8; Pl.’s Supp. Br. ¶¶ 11-14; Defs.’ Supp. Br. ¶¶
8-10; Tr. 209:6-15 (Durrani concedes that Plaintiff worked 50 or 60 hours per week),
217:16-24 (Defendants did not keep payroll records).

According to Plaintiff, he

worked at the Smoke Shop from 5:00 a.m. until 11:00 p.m. seven days a week, but
was only paid for the first forty hours of work he performed at a rate of $10 per hour.
See Pl.’s Supp. Br. ¶ 11; Tr. 50:13-51:22, 52:17-24, 54:2-6. Although this claim seems
extreme, the Court credits Plaintiff’s testimony because it was both credible and
corroborated by all of the Customer Witnesses who testified.
For example, Reyna Jiminez testified that starting in October 1992 she went
to the store regularly as early as 6am in the morning for coffee and as late as 5:30
p.m. during the week and 8:00 p.m. on weekends. Further, her husband and son went
two or three times a day for cigarettes, and it was always Plaintiff behind the counter.
Tr. 10:22-13:10, 16:5-18:7. When Ms. Jiminez occasionally went to the store in the
evening or on holidays, Awan was still there. Tr. 14:24-15:7.
Norman Riedel went to the store three times a day for years. Tr. 20:23-21:4,
22:3-23:18. He would go almost every day, seven days a week, at 5:30 a.m. on
weekdays and 6:30 a.m. on weekends, and he would call Plaintiff before coming to
make sure he was up. Tr. 22:11-24:19, 29:21-25. Riedel also came by every other day

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between 4:30 p.m. and 5:00 p.m. after work for coffee, and occasionally went in the
evenings as late as 11:00 p.m. or 11:30 p.m.

Tr. 25:22-26:20, 26:25-27:8, 31:11-18.

Plaintiff was the person working at the Smoke Shop whenever Riedel was there,
every day from morning until evening. Tr. 23:1-27:8, 28:5-9. Further, Plaintiff ate
his meals at the store and slept in the back room on the floor, leaving the store only
on rare occasions in the afternoon when necessary. Tr. 28:10-24.
Jeff Jorgenson, another regular customer saw Plaintiff at the Smoke Shop “all
day long,” in the morning when Jorgenson was buying a roll and coffee before work,
at lunch during the work day, when he was buying lottery tickets on the way home,
and on the weekends. Tr. 118:1-6, 119:2-7, 122:6-123:14. According to Jorgenson,
Plaintiff “opened and closed the store.” Tr. 118:6. In fact Jorgensen could not
remember a single instance when Awan was not present at the Smoke Shop. Tr.
119:22-120:8, 120:13-122:15.
Lamont Cuffie bought coffee from Plaintiff every morning at approximately
7:00 a.m. Tr. 126:13-21. Mr. Cuffie was also there during the day to get lunch and
buy “scratch-offs,” and then again at night until 9:00 p.m. or 10 p.m. Tr. 126:22127:12. He did this every day, including weekends, “[e]ven Christmas.” Tr. 127:1315, 130:2-5. It was a place where “guys from the neighborhood” “hung out.” Tr. 131:413. Per Cuffie, there was never a time when Awan was absent from the store, and he
knew that at least sometimes Plaintiff slept there. Tr. 128:10-13; 129:6-11; see also
Tr. 155:5-13. 5
Defendants testified without basis in fact that these customers “lied” on the stand when
recalling the hours each of them saw Plaintiff at the store. Tr. 216:13-217:1. The Court disagrees for
5

7

Further, Awan worked alone at the Smoke Shop. Tr. 146:20-22, 186:4-18; see
Tr. 19:10-12, 118:21-119:1, 128:10-16 (customers testifying that they only saw
Plaintiff working at the store). In making this finding of fact that Court expressly
rejects Defendants’ testimony that Plaintiff hired two employees to work with him.
Durrani could only identify one of these employees by the name “Elvis” or “Pablo,”
could not recall his last name or when he was hired or fired, although he recalled that
this person worked for a few months. Tr. 71:22-73:21, 206:16-23. The other employee,
named “Tony,” was fired for speaking “badly” to a woman. Tr. 207:20-208:14. These
two employees worked during different time periods. Tr. 209:16-210:4. As set forth
above, and at length in the margin Durrani’s testimony about these employees was
not credible. 6
When Plaintiff started working for Defendants in 1989 he was paid $4.00 per
hour with no overtime. Tr. 140:13-14. Sometime between 2002 and 2004, Plaintiff
received a raise to $10.00 per hour, working the same schedule. Tr. 142:5-22. The
weekly pay was $400.00 cash – there was no pay for hours worked above 40 per week.
Tr. 145:20-146:5. This continued until July 2014 when Plaintiff quit. Tr. 143:11-21,

two reasons. Initially, each of the Customer Witnesses was credible in his or her demeanor and
recollection of events. Moreover, none of them had any incentive to lie. There was no discernable
benefit to any of them for coming to court to testify. Accordingly, the Court credits all of the testimony
of the Customer Witnesses and rejects Defendants’ dismissal of them as liars.
6 The Court further notes that Defendants submitted testimony that Plaintiff had been out of
the country, either in Canada or Pakistan for long periods some time prior to 2008, contrary to certain
times when Awan claimed he was working for Defendants. See Tr. 203:8-204:19 (stating that Plaintiff
was in Canada for six or seven years and in Pakistan for a year). This testimony was irrelevant as it
all occurred outside the relevant statute of limitations period and the time for which Plaintiff seeks
damages. See Tr. 235:3-10 (parties agreeing that the relevant statute of limitations period is six years
under New York Labor Law rendering pre-2008 conduct irrelevant). Further, the Court would reject
this testimony in any event, because, at set forth above, Mr. Durrani, who provided it, was not a
credible witness.

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144:6-146:12. In total, Awan claims now that he worked 18 hours per day – 126 hours
per week – and never received pay for more than 40 hours per week at his regular
hourly rate of $10.00. Tr. 150:24-151:11, 153:12-13, 166:12-20. 7 The only exception
was that when Mr. Durrani went to Pakistan for six weeks each year Plaintiff took
an extra $500.00 per week for a total of $900.00 per week with Defendants’
permission. Tr. 170:4-170:19.
In contrast, Durrani testified that Plaintiff generally left the Smoke Shop from
approximately 8:30 a.m. until 2:00 p.m. every day, and that he received a salary of
$900 per week. Tr. 52:1-19, 77:10-13, 205:23-206:3. For the reasons set forth above
and in the margin, the Court credits the testimony of Plaintiff and the Customer
Witnesses over that of Durrani and finds that, at all relevant times, Plaintiff worked
at the Smoke Shop seven days a week for eighteen hours per day, a total of 126 hours
per week. The Court further concludes that Plaintiff was paid $10 per hour, but only
received $400 per week.
III.

CONCLUSIONS OF LAW
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, No. 14 Civ. 8529, 2016 WL 4581341, at *4 (S.D.N.Y. Sept. 1, 2016). To the
extent that Defendants invoke an exemption as an affirmative defense, they bear the
burden to establish that the affirmative defense applies. Kahn v. Superior Chicken

The Court notes that in the Complaint Plaintiff states that was paid $800 per week, and that
at trial he stated that number in the Complaint was erroneous. Tr. 168:14-168:23. The Court credits
his testimony and finds it credible.
7

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& Ribs, Inc., 331 F. Supp. 2d 115, 117 (E.D.N.Y. 2004). For the reasons set forth
herein, the Court concludes that Plaintiff has satisfied his burden in establishing that
Defendants violated the overtime provisions of the FLSA and NYLL, and that he is
entitled to recover $549,345.00 in damages. Further, Defendants have failed to
establish that Awan was covered by any exemption that would protect them from
liability.
A. Liability for Violation of the FLSA and NYLL
Plaintiff asserts that Defendants violated the FLSA and NYLL by failing “to
pay [him] the overtime pay required by law.” See Pl.’s Supp. Br. ¶ 20; see also Compl.
¶¶ 30-49. Plaintiff claims that he “worked seven (7) days per week and 18 hours per
day for a total of 126 hours per week.” See Pl.’s Supp. Br. ¶ 42. Awan further argues
that “Defendants did not prove by a preponderance of the evidence that the overtime
pay law does not apply because [he] is exempt from those requirements under the
executive exemption.”

Id. at ¶ 24.

Defendants counter that they “believe that

Plaintiff . . . acted in an executive capacity in his employment” with the Smoke Shop,
and that Plaintiff “hired, fired and supervised employees at the convenience store . .
. .” See Defs.’ Supp. Br. ¶¶ 17, 18.
1. Threshold Issues
Before addressing the question of Defendants’ liability and Plaintiff’s damages,
the Court notes that the threshold issues for bringing an action under the FLSA and
NYLL have been satisfied. As an initial matter, the Smoke Shop is subject to the
FLSA’s wage-and-hour provisions because it was “an enterprise engaged in

10

commerce” and, at all relevant times, its annual gross volume of sales and business
exceeded $500,000. See 29 U.S.C. §§ 206(a), 207(a)(1); see also JPTO ¶ 5; Tr. 104:1113. 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 the Smoke
Shop is a “domestic business corporation organized under the laws of New York, with
a principal executive office and an address for service of process located at 57 Bay
Shore Road, Bay Shore, New York 11706,” within this judicial district. See JPTO ¶
2; see also 28 U.S.C. § 1391; Tapia, 2016 WL 4581341, at *4.
2. Whether Defendants are Liable under the FLSA and NYLL
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 one-and-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., No. 12-CV-1120, 2013 WL 3010810, at
*18 (E.D.N.Y. June 18, 2013) (“The NYLL, like the FLSA, requires that employers
pay one and one-half times an employee’s regular rate of work performed in excess of

11

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., No. 07-CV-2345, 2013 WL 1629299, at
3 n.2 (E.D.N.Y. Mar. 25, 2013) (“New York law follows the FLSA on the standards

12

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., No. 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 . . ., 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). It is well-established 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., No.
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

13

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).
Here, Plaintiff has established by a preponderance of the evidence that
Defendants violated the overtime provisions of the FLSA and NYLL. As an initial
matter, the Court notes that Defendants do not dispute that Plaintiff did not receive
overtime compensation despite the fact that he worked in excess of forty hours per
week. See Defs.’ Supp. Br. ¶¶ 24-27. Rather, they contend that Awan was exempt
from the FLSA and NYLL’s overtime provisions pursuant to the executive exemption.
Id. at ¶ 17. To that end, in the Summary Judgment Opinion the Court held that
“material issues of fact exist as to each of the [Regulations’] factors sufficient to
warrant a trial as to whether the executive exemption applies.” Awan, 2015 WL
4000139, at *13. The Court further concluded that “a trial is required on the issue of
whether, and in what capacity, the Smoke Shop employed other individuals” and “the
degree to which Awan supervised them.”

Id. at *12.

However, in Defendants’

Proposed Findings of Fact and Conclusions of Law, although Defendants claim that
Plaintiff “hired, fired and supervised employees” at the Smoke Shop, they “concede
that these employees were part-time employees that worked at the convenience store
sporadically, and, as such, Plaintiff . . . did not customarily and regularly direct the

14

work of at least two or more other full-time employees or their equivalent.” Defs.’
Supp. Br. ¶ 18. Accordingly, Defendants fail to satisfy their burden in demonstrating
that Awan was an exempt executive employee under the FLSA and NYLL. See 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.”);
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). Accordingly, the Court concludes
that Plaintiff has established by a preponderance of the evidence that Defendants
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 normal rate of pay for hours worked in excess
of forty in a given week.
3. Whether Durrani is Individually Liable as Plaintiff’s Employer
Next the Court addresses whether Defendant Hamid Durrani is individually
liable for the overtime compensation due to Plaintiff. Pursuant to the FLSA, an
employer is “any person acting directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d). To that end, “[t]he statutory standard
for employer status under the NYLL is nearly identical to that of the FLSA.”
Hernandez v. Jrpac Inc., No. 14 Civ. 4176, 2016 WL 3248493, at *22 (S.D.N.Y. June
9, 2016); see also Switzoor v. SCI Engineering, P.C., No. 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 York have applied the same employer analysis to the FLSA and

15

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
“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., No. 10 Civ. 6056, 2011 WL 4639842, at *4 (S.D.N.Y. Oct. 4,
2011); see Gayle v. Harry’s Nurses Registry, Inc., No. 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.”).
Here, the parties stipulated that Durrani “is an owner, officer, director and/or
managing member” of the Smoke Shop, and that he “exercised control over the terms
and conditions of Plaintiffs [sic] employment and those of similarly situated
employees,” and Durrani’s trial testimony was consistent with this stipulation. JPTO
¶ 4; see Tr. 34:22-24.

These facts are sufficient to establish that Durrani was

16

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, No. 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, Durrani and the Smoke Shop are jointly and severally liable for
Defendants’ violations of the overtime provisions of the FLSA and NYLL. See Gayle,
2009 WL 605790, at *9.
B. Damages
Having concluded that Plaintiff has established Defendants’ liability for
violation of the FLSA and NYLL, the Court considers whether Plaintiff has satisfied
his burden of establishing the damages he claims. It is well-established that the
party seeking damages “must prove the amount of damages by a preponderance of
the evidence.” Solis, 938 F. Supp. 2d at 392. Based on his assertion that he worked
“18 hours per day for a total of 126 hours per week,” Plaintiff claims that he is entitled
to $1,229,430.00 in damages, including: (i) $201,240.00 in unpaid overtime under the
FLSA for the applicable period of three years; (ii) $402,480.00 in unpaid overtime
under the NYLL for the applicable period of six years; (iii) $201,240.00 in liquidated
damages under the FLSA; (iv) $402,480.00 in liquidated damages under the NYLL;
(v) $21,900.00 in unpaid meal period compensation under the NYLL; and (vi)

17

prejudgment interest. See Pl.’s Supp. Br. ¶¶ 42-48; Compl. Plaintiff also seeks leave
to file an application for an award of attorneys’ fees and costs. See Pl.’s Supp. Br. ¶
49. In opposition, Defendants contend that, “Plaintiff’s damages, if any, should be
calculated on the fact that he worked 80.5 hours per week.” See Defs.’ Supp. Br. ¶ 27.
For the reasons set forth below, the Court concludes that Plaintiff is entitled to
recover $809,572.84 in compensatory and liquidated damages and prejudgment
interest, as well as an additional amount for post-judgment interest. The Court
further grants Plaintiff leave to file an application for attorneys’ fees and costs.
1. Statute 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). Accordingly, 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 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., No. 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

18

[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., No. 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.”). Indeed, the parties have stipulated that “damages would be
calculated from 2008 to 2014.” 8 See Pl.’s Supp. Br. ¶ 18; Defs.’ Supp. Br. ¶ 15.
Here, Plaintiff has established by a preponderance of the evidence that
Defendants willfully violated the FLSA. According to Awan, he asked Durrani “every
week” to receive overtime compensation, but Durrani never complied. Tr. 144:23145:24. To that end, Durrani specifically testified that he knew that the overtime pay
requirement is “time and a half,” but that if an employee is “working [on a] salary
basis all the time [it] doesn’t matter.” Tr. 76:4-13. Accordingly, Durrani did not pay
Plaintiff overtime compensation at any time during the course of Plaintiff’s
employment at the Smoke Shop. Tr. 145:20-24, 233:7-25. Durrani further testified
that he “never made any effort to maintain any payroll records for” Awan, and that
he “never wrote down the hours that [Awan] worked.” Tr. 39:1-8. Moreover, Durrani
The parties do not differentiate between Plaintiff’s claims arising under the FLSA and NYLL
for purposes of the stipulated statute of limitations. See Pl.’s Supp. Br. ¶ 18; Defs.’ Supp. Br. ¶ 15.
8

19

admitted that he did not withhold employment taxes from Plaintiff’s wages or inform
his accountant that Plaintiff worked at the Smoke Shop and that he was paid in cash.
Tr. 46:4-12. This was in stark contrast to Durrani’s treatment of his wife. Though
he listed her in his tax forms as his employee, covered her under his workers’
compensation insurance policy, and disclosed her employment to his accountant, he
appeared unable or willing to explain the rationale behind her level of compensation
beyond the fact that she also was a “salaried” employee. Tr. 46:4-49:11, 58:15-60:25;
see Tr. 110: 21-111:7 (Defendant’s accountant: “I assume she did some paperwork and
worked behind the counter. But I don’t know off hand. I was never really told.”).
These facts are sufficient to establish that Durrani “knew or had reason to
know that [he] was or might have been subject to the FLSA.” 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, No. 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, 337-38 (S.D.N.Y. 2005) (holding that the defendant’s knowing failure

20

to pay appropriate overtime established willfulness under the FLSA). Accordingly,
Plaintiff has satisfied his burden in establishing that Defendants willfully violated
the FLSA.
As a result, Plaintiff’s claims arising under: (i) the FLSA are subject to a threeyear statute of limitations, and his damages arising thereunder will be calculated
from July 30, 2011 through July 1, 2014; and (ii) the NYLL are subject to a six-year
statute of limitations, and his damages arising thereunder will be calculated from
July 30, 2008 through July 1, 2011. 9
2. Unpaid Overtime Wages
Based on his contention that he worked “18 hours per day for a total of 126
hours per week,” Plaintiff claims he is entitled to recover $603,720.00 in unpaid
overtime wages under the FLSA and NYLL. See Pl.’s Supp. Br. ¶¶ 43, 44. Defendants
counter that “Plaintiff never established that he worked 18 hours a day,” but rather,
“at most, Plaintiff’s damages, if any, should be calculated on the fact that he worked
80.5 hours per week.” Defs.’ Supp. Br. ¶¶ 25, 27. Accordingly, the Court first
considers the amount of time Plaintiff worked for which he is entitled to overtime
compensation.

Plaintiff calculates his unpaid overtime wages under the NYLL from July 1, 2008 through
July 1, 2014. See Pl.’s Supp. Br. ¶ 43. However, a 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., No. 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 . . . .”). Because
Awan seeks unpaid overtime wages under the FLSA from July 1, 2011 through July 1, 2014, he may
not also recover unpaid overtime wages under the NYLL for that same period.
9

21

i.

Number of Hours Worked

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”). 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 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).

22

Here, Defendants failed to maintain adequate records reflecting the number of
hours that Awan worked as well as his rate of pay. In fact, Durrani conceded that he
neither kept any form of payroll records reflecting Plaintiff’s employment at the
Smoke Shop, nor did he write down the number of hours that Plaintiff worked. See
Tr. 38:2–39:8. Moreover, in their Proposed Findings of Fact and Conclusions of Law,
Defendants admit that they “never maintained payroll records for Plaintiff . . . .”
Defs.’ Supp. Br. ¶ 20. Similarly, in their Response to Plaintiff’s First Request for the
Production of Documents, Defendants wrote that they “are not in possession of any
documents referring to, relating to, or reflecting”: (i) the time and day of the week
when Plaintiff’s work week began; (ii) the hours worked each day by Plaintiff; (iii) the
total hours worked each week by Plaintiff; (iv) the basis on which Plaintiff’s wages
were paid; or (v) Plaintiff’s regular hourly rate of pay. See Trial Exhibit 6. Because
Defendants concede that they failed to maintain accurate records regarding
Plaintiff’s employment at the Smoke Shop, the Court may, and does, rely on Plaintiff’s
recollection in determining the amount of unpaid overtime wages. 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
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.’”).

23

Applying these standards, the evidence is sufficient to support the conclusion
that Plaintiff worked at the Smoke Shop every day from approximately 5:00 a.m. until
11:00 p.m. Although Plaintiff testified that he stayed at the Smoke Shop from 5:00
a.m. until approximately 11:00 p.m. every day, Durrani testified that Plaintiff
generally left the store from approximately 8:30 a.m. until 2:00 p.m. each day. See
Tr. 50:21-25, 51:8-16, 142:9-143:21, 150:20-25. However, for the reasons set forth
above, the Court rejects Durrani’s testimony. In contrast, and as set forth above, in
addition to Plaintiff’s testimony, the Customer Witnesses testified credibly that they
regularly saw Plaintiff working at the Smoke Shop between the hours of 8:30 a.m.
and 2:00 p.m. By way of example, Jiminez testified that she went to the Smoke Shop
at approximately 1:00 p.m. several times per week, and that Awan “was always
there.”

Tr. 12:1-3, 13:5-16.

Reidel testified that he went to the Smoke Shop

approximately three times a day from 2004 until 2012, and that Plaintiff “was there
from the morning until the evening.” Tr. 21:3-9, 23:11-18, 28:5-24. Cuffie testified
that he went to the Smoke Shop between 10:00 a.m. and 2:00 p.m. “probably two to
three times a week” since approximately 2005, and that Plaintiff was always there.
Tr. 126:10-18, 128:6-16, 129:6-11, 130:23-131:3.

Accordingly, the Court credits

Plaintiff’s testimony and concludes that, from July 1, 2008 until July 1, 2014, Plaintiff
worked at the Smoke Shop seven days a week from 5:00 a.m. until 11:00 p.m., for a
total of 126 hours per week.

24

ii.

Regular and Overtime Rates of Pay

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, § 1382.2 (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). 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 $10 per hour at all relevant times. See Tr. 145:20-24; Pl.’s Supp. Br. ¶ 11.
More specifically, Plaintiff stated that he received $400 per week, and that he did not
receive any payment for hours that he worked in excess of forty. See Tr. 153:12-13.
In contrast, Durrani testified that Plaintiff was a salaried employee, and that he
actually received $900 per week. Tr. 77:10-14. However, as discussed above, the
Court rejects Durrani’s testimony, and it credits Plaintiff’s testimony and
recollection. See Santillan, 822 F. Supp. 2d at 294. In any event, Plaintiff offered a
plausible reconciliation for Durrani’s testimony that Plaintiff received $900 per week.

25

According to Plaintiff, when Durrani went to Pakistan for six weeks every year,
Plaintiff took an additional $500 per week, bringing his weekly salary during those
time periods to $900. Tr. 169:19-170:18, 172:16-23. Plaintiff further testified that
Durrani was aware that Plaintiff was taking the additional $500 during these times.
Tr. 170:24-171:1. Accordingly, the Court concludes that Plaintiff’s regular rate of pay
at all relevant times was $10 per hour and his overtime rate of pay is $15 per hour.
iii.

Calculation of Unpaid Overtime

Pursuant to the FLSA, employers are required to “pay their employees the
statutory minimum wage as well as a premium (150 percent of the legally mandated
minimum regular wage) for hours worked above 40 hours per week.” Gunawan v.
Sake Sushi Rest., 897 F. Supp. 2d 76, 84 (E.D.N.Y. 2012) (citing 29 U.S.C. §§ 206(a),
207(a)(1)). Having determined that Plaintiff worked 126 hours per week at a regular
rate of employment of $10 per hour, Plaintiff is entitled to recover minimum and
overtime wages for: (i) 86 hours of overtime per week at a rate of $15 per hour for the
46 weeks a year that he received $400 per week, and (ii) 52 ⅔ hours of overtime per
week at a rate of $15 per hour for the six weeks a year that he received $900 per
week. 10 Accordingly, Plaintiff is entitled to recover $64,080.00 in unpaid wages per
year under the FLSA. Therefore, for the three-year statutory period of July 30, 2011
until July 1, 2014, Plaintiff is entitled to recover $187,080.00 in unpaid wages under
that statute. 11

The additional $500 Plaintiff received reflects payment for thirty-three and one-third hours
of work at his overtime rate of $15 per hour.
11 Assuming 52 weeks in a year, the Court calculated the total compensatory damages under
the FLSA by taking two full years of unpaid overtime, $128,160.00, and adding to it eleven additional
10

26

Similarly, pursuant to the NYLL, “[a]n employer shall pay an employee for
overtime at a wage rate of one and one-half times the employee’s regular rate in the
manner and methods provided in and subject to the exemptions of [the FLSA].” 12
N.Y. Comp. Codes R. & Regs. tit. 12, § 142.22; see also Yuquilema v. Manhattan’s
Hero Corp., No. 13 Civ. 461, 2014 WL 4207106, at *3 (S.D.N.Y. Aug. 26, 2014) (“Both
federal and state law also mandate that an employee be paid at a rate not less than
one-and-a-half times the regular rate for any time worked beyond the first 40 hours
per week.”) (Report and Recommendation), adopted by 2014 WL 5039428 (S.D.N.Y.
Sept. 30, 2014). Because the NYLL calculates unpaid wages in the same manner as
the FLSA, Plaintiff is also entitled to recover $192,240.00 in unpaid wages under the
NYLL for the period of July 30, 2008 until July 30, 2011. 12
Based on the foregoing, Plaintiff is entitled to recover $379,320.00 in unpaid
overtime compensation under the FLSA and NYLL.
3. Liquidated Damages
Plaintiff also seeks a total of $603,720.00 in liquidated damages, including: (i)
$201,240.00 in liquidated damages under the FLSA and (ii) $402,480.00 in liquidated
damages under the NYLL. See Pl.’s Supp. Br. ¶¶ 45, 46. For the reasons set forth
herein, Plaintiff is entitled to a total of $234,405.00 in liquidated damages under the
FLSA and NYLL.
months of unpaid overtime (42 weeks at the 86-hours-per-week rate plus six weeks at the 52-⅔-hoursper-week rate), $58,920.00, subtracting four weeks from the total due to the four-week gap between
the end of the Defendant’s employment and the filing of the present suit.
12 As explained above, Plaintiff cannot recoup compensatory damages twice, under both the
FLSA and NYLL, for the same time period. See supra at 21 n. 9. Accordingly, as Plaintiff did not
recover under the FLSA for unpaid overtime from July 1, 2011 through July 30, 2011, the Court
awards Awan this additional period of unpaid overtime under the NYLL.

27

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., No. 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.
Pita Grill 7 Inc., No. 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, No. 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 $187,080.00 in
unpaid overtime compensation under the FLSA and that there is no evidence of
Defendant’s good faith, Awan is also entitled to recover $187,080.00 in liquidated
damages under that statute.
ii.

NYLL Liquidated Damages

The NYLL liquidated damages analysis is slightly different. Although the
NYLL also provides for liquidated damages, “for violations that occurred prior to
November 24, 2009, an employee must establish ‘that the employer’s violation was

28

willful.’” Hengjin Sun v. Cina 1221, Inc., No. 12 Civ. 7135, 2016 WL 1587242, at *3
(S.D.N.Y. Apr. 19, 2016) (quoting Galeana v. Lemongrass on Broadway Corp., 120 F.
Supp. 3d 306, 317-318 (S.D.N.Y. 2014)); see also McLean v. Garage Mgmt. Corp., No.
10 Civ. 3950, 2012 WL 1358739, at *8 (S.D.N.Y. Apr. 19, 2012) (observing that prior
to November 24, 2009, a plaintiff was only entitled to recover liquidated damages
under the NYLL “if plaintiffs could prove that employers’ NYLL violations were
willful”); N.Y. Lab. Law § 198(1-a) (permitting liquidated damages after November
24, 2009 unless “the employer proves a good faith basis for believing that its
underpayment of wages was in compliance with the law”). However, “the NYLL
‘willfulness’ standard under the pre-amendment provision ‘does not appreciably differ
from the FLSA’s willfulness standard.’” McLean, 2012 WL 1358739, at *8 (quoting
Kuebel v. Black and Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011)); see Castellanos v.
Mid Bronx Community Housing Mgmt. Corp., No. 13 Civ. 3061, 2014 WL 2624759, at
*3 (S.D.N.Y. June 10, 2014) (internal quotation marks omitted) (“The standard for
willfulness under NYLL does not appreciably differ from that of the FLSA.”). Having
determined that Defendants willfully violated the FLSA, Plaintiff is also entitled to
recover liquidated damages under the NYLL.
However, whereas the current version of the NYLL permits recovery of
liquidated damages amounting to 100% of the total unpaid wages, prior to the
effective date of the amendment of the liquidated damages provision, April 9, 2011,
employees were only able to “recover liquidated damages in the amount of 25% of the
total unpaid wages.” Hengjin Sun, 2016 WL 1587242, at *3 (citing N.Y. Lab. Law §

29

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). Further, courts in the Second Circuit have
observed that “[t]here is no statutory language suggesting a legislative intent to apply
the statute retroactively.” McLean, 2012 WL 1358739, at *9; see Eschmann, 2014 WL
1224247, at *13 (“[T]he statutory text, legislative history, and weight of authority
support the conclusion that the [amendment] does not apply retroactively . . . .”);
Chenensky v. N.Y. Life Ins. Co., No. 07 Civ. 11504, 2012 WL 234374, at *3 (S.D.N.Y.
Jan. 10, 2012) (“As plaintiffs concede, there is no legislative history evincing an intent
to apply the 2011 Amendment retroactively.”).

Therefore, Plaintiff is entitled to

recover liquidated damages under the NYLL in the amount of: (i) 25% of total unpaid
wages from July 30, 2008 until April 8, 2011, and (ii) 100% of total unpaid wages from
April 9, 2011 until July 30, 2011, for a total of $62,847.69 in liquidated damages under
the NYLL. 13
Finally, Plaintiff seeks to recover liquidated damages under the NYLL for the
period of July 1, 2011 until July 1, 2014, a period of time that is also covered by his
FLSA claim. See Pl.’s Supp. Br. ¶ 46. Prior to the 2011 Amendment to the NYLL
increasing liquidated damages from 25% to 100% of total unpaid wages, some courts
“awarded cumulative liquidated damages under both the FLSA and NYLL because

The Court determined that Plaintiff’s unpaid wages under the NYLL from July 30, 2008
until April 8, 2011 (two years and 36 weeks) were $172,523.08. The remaining recovery period from
April 9, 2011 until July 30, 2011 (sixteen weeks) covered an amount of unpaid overtime wages totaling
$19,716.92. Applying the NYLL mandated twenty-five-percent recovery rate to the $172,523.08
results in a calculation of $43,130.77, which, when added to the $19,716.92 awarded at the 100% rate,
totals $62,847.69 in NYLL liquidated damages.
13

30

the statutes’ liquidated damages provisions serve[d] different purposes.” Hengjin
Sun, 2016 WL 1587242, at *3; see also Wicaksono v. XYZ 48 Corp., No. 10 Civ. 3635,
2011 WL 2022644, at *7 (S.D.N.Y. May 2, 2011) (Report and Recommendation),
adopted by 2011 WL 2038973 (S.D.N.Y. May 24, 2011) (observing that “[a]uthority is
mixed regarding whether a plaintiff may recover liquidated damages under both
federal and state law”). 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, No. 14 Civ. 4279, 2015 WL 4865311, at *5 (S.D.N.Y. Aug. 12, 2015)).
Accordingly, courts have more recently observed that “‘[b]ecause both forms of
liquidated damages serve 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, No. 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
liquidated damages under the NYLL. 14

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 consideration of the arguments made in this case, and
reconsideration of Court’s earlier orders, the Court concludes that separate awards of liquidated
damages under each statute for the same compensatory damages are inappropriate.
14

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Based on the foregoing, Plaintiff is entitled to $249,927.69 in liquidated
damages, including: (i) $187,080.00 in liquidated damages under the FLSA, and (ii)
$62,847.69 in liquidated damages under the NYLL.
4. Prejudgment Interest
Plaintiff also seeks prejudgment interest under the NYLL. See Compl. Prayer
for Relief ¶ g. 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 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., No. 12-CV04760, 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.

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Here, the relevant period of employment for Plaintiff’s overtime claims under
the NYLL is July 30, 2008 through July 1, 2014. This action was filed July 30, 2014.
The mid-point between July 30, 2008 and July 30, 2014 is approximately July 30,
2011. The compensatory damages for unpaid overtime wages due under the NYLL
for that time period is $379,320.00. 15 The Court calculates pre-judgment interest on
this amount at a rate of 9% per year to be $180,512.90. 16 As the unpaid overtime
wages remain outstanding, daily interest shall continue to accrue at the rate of $93.53
per day for each day until judgment is entered.
Accordingly, the Court recommends that pre-judgment interest amounting to
$180,512.90 be awarded to Plaintiff, with interest accruing at a daily rate of $93.53
until judgment is entered.
5. Meal Period Compensation
Next, Plaintiff seeks to recover $21,900.00 for “unpaid meal period
compensation” under the NYLL. See Pl.’s Supp. Br. ¶ 47; see also N.Y. Labor Law §
162(2) (“An employee who works a shift of more than six hours which extends over
the noon day meal period is entitled to at least thirty minutes off within that period
for the meal period.”). However, in the Summary Judgment Opinion, the Court held

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).
16 This figure was reached by taking the number of days between the mid-point selected, July
30, 2011, and the date of this Order, November 10, 2016 (1,930 days) and multiplying it by the daily
interest rate of $93.53 ($379,320.00 [principal loan amount] x 0.09 [yearly interest] = $34,138.80
(yearly interest) / 365 days = $93.53 per day interest).
15

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that, “to the degree Awan seeks compensation for allegedly having been denied meal
periods during his employment, no cause of action for such relief exists . . . .” Awan,
2015 WL 4000139, at *9 n.12; see Hill v. City of New York, 136 F. Supp. 3d 304, 351
(E.D.N.Y. 2015) (“[T]here is no private right of action to enforce [N.Y. Lab. Law] §
162.”). The Court further observed that, “to the extent that Awan is alleging that he
worked through his statutory lunch breaks without pay, his claims may be cognizable
under the overtime and minimum wage provisions of the NYLL discussed above.” Id.
In fact, when calculating the unpaid wages to which Plaintiff is entitled, the Court
accounted for all hours that Awan worked in a given day. Accordingly, Awan is not
entitled to recover additional amounts for unpaid meal times under the NYLL.
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, No. 15 Civ. 2158, 2015
WL 5710320, at *10 (S.D.N.Y. Sept. 25, 2015) (“Under the FLSA and NYLL, a
prevailing 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

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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
Based upon the foregoing findings of fact and conclusions of law, the Court

concludes that Plaintiff has proven his claims by a preponderance of the evidence and
that he is entitled to recover $809,760.59 in damages. On or before December 10,
2016, Plaintiff may submit an application for attorneys’ fees and costs.

Dated: Central Islip, New York
November 10, 2016

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

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