Galicia v. 861 Rest. Inc. et al

Filing 97

MEMORANDUM OPINION AND ORDER. The plaintiffs' motion for partial summary judgment with respect to uniform maintenance pay is denied. The plaintiffs' motion for partial summary judgment on the issue of liquidated damages is denied. The pla intiffs' motion for partial summary judgment is granted with respect to their WTPA claims. The Court hereby directs the parties to submit revised proposed damages calculations consistent with this Opinion. The Court hereby sets the following schedule for such submissions: By June 16, 2017, the plaintiffs shall provide a letter to the defendants (but not then filed on ECF) itemizing, by plaintiff and by claim, the plaintiffs' proposed damages calculation and explaining, clearly an d with specificity, the basis for each calculation. By June 23, 2017, the defendants shall provide a letter to the plaintiffs stating whether they have any objections to any of the plaintiffs' proposed damages calculations, and if so, explain ing, clearly and with specificity, the basis for each point of disagreement, and stating (and explaining the basis for) the defendants' contrary calculation. In the event the defendants disagree as to any aspect of the plaintiffs' damage s calculation, the parties are directed to meet and confer to attempt to resolve any discrepancies. By June 30, 2017, either (1) the parties shall jointly submit a proposed damages calculation, or (2) the plaintiffs shall file its proposed damages calculation, in which case the defendants shall file any opposition by July 7, 2017, and the plaintiffs shall file a reply by July 14, 2017. See Hernandez, 2016 WL 3248493, at *36-37. The remaining arguments are either moot or without merit. For the foregoing reasons, the plaintiffs' motion for partial summary judgment is granted in part and denied in part. SO ORDERED. (Signed by Judge John G. Koeltl on 6/1/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
DENISA CUCU, ET AL.,
Plaintiffs, 1
- against -

14-cv-1235 (JGK)

861 REST. INC., ET AL.,

MEMORANDUM OPINION
AND ORDER

Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiffs, Denisa Cucu, Johanna Iniguez, Juan M.
Manzanares Manjarrez, and Vasiliki Pantazopouplou, brought this
action against their former employer, Park Café, Christos
Averkiou 2 and Sofokelis Dertouzos (together, the “defendants”),
alleging that the defendants (1) violated the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 203, and the New York Labor
Law (“NYLL”), N.Y. Lab. L. § 652(1), by improperly claiming a
tip credit and failing to pay an appropriate minimum wage; (2)
violated the NYLL by failing to pay for their uniform
maintenance, 12 N.Y.C.R.R. § 146-1.7(b); and (3) violated the

1

The original plaintiff, Juan Galicia, is no longer a plaintiff.
The Clerk is directed to amend the caption.
2 The plaintiffs filed this motion on June 2, 2016.
On July 15,
2016, the plaintiffs filed a Third Amended Complaint, the only
material change being that Averkiou was added as an additional
defendant. By letter dated January 5, 2017, the parties
requested that this current motion be treated as if it were also
filed against the newly named defendant.
See ECF No. 86.
1

Wage Theft Prevention Act (“WTPA”), N.Y. Lab. L. § 195(1)(a).
The plaintiffs also argue that they are entitled to liquidated
damages under both the FLSA, 29 U.S.C. § 216(b), and the NYLL,
N.Y. Lab. L. §§ 198(1–a), 663(1).
The plaintiffs now move for partial summary judgment,
arguing that (1) the defendants are liable for failing to comply
with the tip notice provisions of the FLSA and the NYLL; (2) the
defendants were legally required to provide uniform maintenance
pay but did not; (3) the defendants are liable for violating the
WTPA; and (4) the plaintiffs are entitled to liquidated damages
under the FLSA and NYLL.
I.
The following facts are undisputed unless otherwise noted.
Park Café is a full-service restaurant located in New York
City. (56.1 Stmts. ¶ 1.) The plaintiffs are former and current
employees of Park Café.

Cucu began working as a waitress for

Park Café on September 24, 2012 and worked until January 5,
2014. (56.1 Stmts. ¶¶ 3, 4.)

Iniguez currently works as a

waitress at Park Café, although it remains disputed exactly when
she began working there. (56.1 Stmts. ¶¶ 14, 15.) 3 Pantazopoulou

3

The plaintiffs claim she began working on August 25, 2010.
(Pl’s. 56.1 Stmt. ¶ 15.) The defendants deny this statement but
do not provide any alternative date, although the defendants’
deposition testimony indicates that she began working for Park
Café three and a half or four years ago. See Averkiou Dep.
20:21; Dertouzos 29:2-3.
2

worked as a waitress for Park Café from November 21, 2007 until
December 13, 2010. (56.1 Stmts. ¶¶ 30, 31.)

Manjarrez was a

busboy at Park Café, although the timing of his employment
remains unclear.

(56.1 Stmts. ¶ 28.)

Throughout the relevant time periods, Park Café paid some
of the plaintiffs a fixed hourly wage and also permitted them to
take tips. The defendants provided a yearly wage notice and
acknowledgement to Cucu and Iniguez on February 7, 2013,
although the parties dispute whether Cucu and Iniguez received
such notices prior to that date.

(56.1 Stmts ¶¶ 6, 16.);

(Gurrieri Affirmation in Supp. of Mot. for Partial Summ. J.
(“Gurrieri Affirm.”), Ex. 2 at 1, 8); (Gurrieri Affirm., Ex. 1
at 265, 448).
In addition to the yearly wage notices, Park Café also
supplied Cucu and Iniguez with weekly wage statements, but the
weekly wage statements did not include hourly rate information
until January of 2013. (56.1 Stmts. ¶¶ 9, 10, 26.)
The parties dispute the extent to which the defendants
informed Cucu, Iniguez, and Pantazopouplou about the tip credit
provisions of the FLSA and the NYLL. (56.1 Stmts. ¶¶ 7, 17, 36.)
The defendants verbally informed the plaintiffs of their hourly
rate and that the rate was set by law. Averkiou Dep. 12:1113:18, 20:3-10, 22:17-22; Dertouzos Dep. 16:25-17:14, 27:11-18,
28:15-17. They also verbally made clear to the plaintiffs that
3

they would be receiving tips and informed them that the
bookkeeper made sure they received the appropriate amount of
wages. Dertouzos Dep. 17:10-14. Aside from this verbal
communication, the defendants claim they had a poster hanging in
the café that listed the minimum wage rate. Dertouzos Dep.
15:14-15. The record does not reflect that the defendants
informed the plaintiffs of the specific provisions of the FLSA
or NYLL dealing with the tip credit.
Park Café also supplied its employees with required
uniforms, which consisted of an apron and a vest with a logo on
it. (56.1 Stmts. ¶¶ 12, 21, 40). Each employee was supplied with
one or two of each item, and the defendants would occasionally
replace these items when they began to appear worn. The
defendants did not, however, give their employees uniform
maintenance pay. See Averkiou Dep. 12:3-10.
II.
The standard for granting summary judgment is well
established. Summary judgment may not be granted unless “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs.
4

Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). “The trial
court’s task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
genuine issues of material fact to be tried, not to deciding
them. Its duty, in short, is confined at this point to issuefinding; it does not extend to issue-resolution.” Gallo, 22 F.3d
at 1224. The moving party bears the initial burden of “informing
the district court of the basis for its motion” and identifying
the matter that “it believes demonstrate[s] the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323. The
substantive law governing the case will identify those facts
which are material and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see
also Gallo, 22 F.3d at 1223. Summary judgment is improper if
there is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
5

Cir. 1994). If the moving party meets its burden, the nonmoving
party must produce evidence in the record and “may not rely
simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible.” Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see
also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998)
(collecting cases).
III.
A.
The FLSA permits an employer to pay tipped employees a
fixed hourly rate less than the federal minimum wage as long as
the employee’s tips raise the employee’s effective hourly wage
rate above the minimum wage. See 29 U.S.C. § 203(m).

But an

employer may not claim such a tip credit unless it has informed
the employee of the provisions of the section of the FLSA
permitting the tip credit. See Inclan v. N.Y. Hosp. Grp., Inc.,
95 F. Supp. 3d 490, 497 (S.D.N.Y. 2015); see also Copantitla v.
Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 288 (S.D.N.Y.
2011) (concluding that the notice requirement was not satisfied
even after an employer informed employees that compensation
would be an hourly rate plus tips and posted notices about
minimum wage laws, because employees were not notified
specifically that the employer intended to satisfy its minimum
wage obligations through the tip credit).
6

The employer bears the burden of showing that it satisfied
the notice requirement “by, for example, “providing employees
with a copy of § 203(m) and informing them that their tips will
be used as a credit against the minimum wage as permitted by
law.” Id. (internal citation omitted).

“If the employer cannot

show that it has informed employees that tips are being credited
against their wages, then no tip credit can be taken and the
employer is liable for the full minimum-wage.” Inclan, 95 F.
Supp. 3d at 497 (quoting Reich v. Chez Robert, Inc., 28 F.3d
401, 403 (3d Cir. 1994)). “Even if the employee received tips at
least equivalent to the minimum wage,” the notice provision must
be satisfied.

Chung v. New Silver Palace Rest., Inc., 246 F.

Supp. 2d 220, 229 (S.D.N.Y. 2002).
Because the employer has the ultimate burden of proving
compliance with the tip credit notice requirement, an employer
opposing summary judgment must “do more than point to a dearth
of evidence.” Inclan, 95 F. Supp. 3d at 498 (quoting Perez v.
Lorraine Enters., Inc., 769 F.3d 23, 27 (1st Cir. 2014)); see
also Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014) (“[W]here the nonmoving party will bear the
burden of proof on an issue at trial, the moving party may
satisfy its burden by pointing to an absence of evidence to
support an essential element of the nonmoving party’s case.”
(brackets and internal quotation marks omitted)). Instead, an
7

employer is required to “adduce definite competent evidence
showing that [employees] were informed of the tip credit.”
Inclan, 95 F. Supp. 3d at 498 (quoting Perez, 769 F.3d at 30).
The defendants argue that genuine disputes of material fact
exist as to whether they satisfied the notice requirement,
pointing to the defendants’ deposition testimony that referenced
paystubs reflecting the amount of tips each employee received
each week.

But merely informing employees that they are

receiving tips in addition to their hourly wage fails to satisfy
the requirement to inform the employees “that [the employer]
intended to take a tip credit with respect to their salary.”
Copantitla, 788 F. Supp. 2d at 288; see also Hernandez v. Jrpac
Inc., No. 14-cv-4176 (PAE), 2016 WL 3248493, at *24 (S.D.N.Y.
June 9, 2016) (granting a plaintiff’s partial motion for summary
judgment because while the employees “were informed that they
would be paid a fixed weekly wage and tips . . .[the employer]
never informed the employees that it intended to use the tips
the workers received to satisfy any part of its minimum wage
obligations”).
The defendants also argue that some of the plaintiffs’
paystubs clearly demonstrate that these employees were properly
credited with their reported tips.

But the fact that certain

employees received the minimum wage after accounting for tips
does not satisfy the employer’s obligation to provide notice
8

under § 203(m); the employer is still obliged to inform its
employees that it is intending to use the tip credit.

See

Chung, 246 F. Supp. 2d at 229; see also Martin v. Tango’s
Restaurant, Inc., 969 F.2d 1319, 1323 (1st Cir. 1992) (“It may
at first seem odd to award back pay against an employer . . .
where the employee has actually received and retained base wages
and tips that together amply satisfy the minimum wage
requirements. Yet Congress has in section 3(m) expressly
required notice as a condition of the tip credit and the courts
have enforced that requirement.”). 4
Accordingly, the evidence fails to show that the defendants
satisfied the statutory requirements necessary to take the tip
credit.

4

The defendants’ depositions indicate that the defendants
displayed posters in Park Café describing minimum wage laws.
See Averkiou Dep. 20:6-7, Dertouzos Dep. 39:22-25-40:1-23. But
the defendants fail to reference these posters in their papers,
let alone provide a description as to their content.
Accordingly, the defendants have failed to “adduce definite
competent evidence showing that [employees] were informed of the
tip credit” by way of such a poster. Inclan, 95 F. Supp. 3d at
498 (quoting Perez, 769 F.3d at 30); see also Copantitla, 788 F.
Supp. 2d at 288 (“A generic government poster could inform
employees that minimum wage obligations exist, but could not
possibly inform employees that their employers intend to take
the tip credit with respect to their salary.”); Hernandez, 2016
WL 3248493, at *24 (granting the plaintiffs’ motion for partial
summary judgment because the defendant merely provided
“uncorroborated claim[s] that [government] posters were
prominently displayed during plaintiffs’ employment.”).
9

B.
The plaintiffs also seek partial summary judgment for the
defendants’ failure to comply with the New York Labor Law
(“NYLL”). “The NYLL allows an employer to take a tip credit for
tipped employees, subject to certain conditions similar to those
under the FLSA.” Hernandez, 2016 WL 3248493, at *25.

Unlike

federal law, however, the employer must specifically provide
“written notice” to employees, informing them of the requirement
that extra pay is required if tips do not elevate the employee’s
wages to the minimum hourly rate. 12 N.Y.C.R.R. § 146–2.2.
“These notices must be provided in English and the workers’
primary language, and acknowledgement of receipt of such
notices, signed by the employee, are required to be kept for six
years.” Hernandez, 2016 WL 3248493, at *25 (citing 12 N.Y.C.R.R.
§ 146-2.2 (a) & (c)). “An employer that fails to comply with the
notice requirements under the NYLL may not utilize the tip
credit to satisfy its minimum wage and overtime obligations.”
Hernandez, 2016 WL 3248493, at *25.
For the same reasons discussed above, the defendants may
not claim a tip credit under the NYLL. The defendants fail to
point to any evidence in the record showing that the defendants
provided the plaintiffs with any written notices that “recite
the amount of tip credit being taken to satisfy the minimum wage
and overtime wage laws.”

Id.

Accordingly, there is no genuine
10

dispute of material fact that the defendants are not entitled to
use a tip credit for the purposes of complying with its
obligations under the NYLL.

The defendants are ineligible to

take the tip credits under the FLSA and the NYLL.
C.
Under New York law, employers are typically required to
pay “uniform maintenance pay” for the maintenance of their
employees’ required uniforms. See 12 N.Y.C.R.R. § 146-1.7(b).
But under the “wash and wear” exemption:
An employer will not be required to pay the uniform
maintenance pay, where required uniforms
(1) are made of “wash and wear” materials;
(2) may be routinely washed and dried with other personal
garments;
(3) do not require ironing, dry cleaning, daily washing,
commercial laundering, or other special treatment; and
(4) are furnished to the employee in sufficient number,
or the employee is reimbursed by the employer for the
purchase of a sufficient number of uniforms, consistent
with the average number of days per week worked by the
employee.
12 N.Y.C.R.R. § 146-1.7(b).
The plaintiffs Cucu, Iniguez, and Panatazopoulou claim that
they were required to wear, launder, and maintain a uniform
consisting of an apron and a vest with a logo.

They contend

there is no genuine dispute of material fact that defendants are
liable for unpaid uniform maintenance pay. But as the record
currently stands, it is unclear whether the uniforms were made
of “wash and wear” materials, whether the uniforms could be

11

routinely washed and dried with other personal garments, or
whether the uniforms required special treatment such as ironing,
dry cleaning, daily washing, or commercial laundering.
N.Y.C.R.R. § 146-1.7(b).

See 12

And while the plaintiffs argue that

the defendants’ policy to simply replace uniforms in bad
condition is inconsistent with the fourth prong of the “wash and
wear” exemption, it remains unclear at this stage why such a
policy would fail to satisfy the requirement that uniforms are
“furnished to the employee in sufficient number . . . consistent
with the average number of days per week worked by the
employee.”

12 N.Y.C.R.R. § 146-1.7(b). It is also unclear why a

single apron or vest cannot be worn throughout the week and
laundered on the weekend.

One vest or apron might be

“consistent with” the average number of days worked per week.
The regulation does not specify that the number of uniforms be
equal to the average number of days worked per week.

cf. Jin M.

Cao v. Wu Liang Ye Lexington Restaurant, Inc., No. 08-cv-3725
(DC), 2010 WL 4159391, at *5 (S.D.N.Y. Sept. 30, 2010)
(declining, under a previous iteration of the uniform pay
requirement, to award damages to waiters who were provided with
one red vest by their employer because there was “no evidence in
the record that plaintiff waiters incurred any expenses to
acquire or clean their red vests”); Biasi v. Wal-Mart Stores E.,
LP, No. 15-cv-0454 (GTS), 2016 WL 1057045, at *1 (N.D.N.Y. Mar.
12

14, 2016) (denying a defendant’s motion to dismiss a uniform
maintenance pay claim when plaintiff was provided two vests for
five days of work).
Accordingly, disputes of material fact remain as to whether
the plaintiffs are entitled to uniform maintenance pay, and
whether the uniforms the defendants provided fell within the
wash and wear exemption.

cf. Ramirez v. CSJ & Co., No. 06-cv-

13677 (LAK) 2007 WL 700831, at *2 (S.D.N.Y. Mar. 6, 2007)
(concluding that, under a previous iteration of the uniform
requirement, the question of whether a T-shirt bearing a deli’s
name and logo is a uniform “probably is better decided by a
trier of fact than as a matter of law”).

The plaintiffs’ motion

for partial summary judgment with respect to uniform maintenance
pay is denied.
D.
The plaintiffs argue that they are entitled to liquidated
damages under the FLSA and NYLL.
The FLSA provides that an employer who violates the Act’s
minimum wage or overtime provisions “shall be liable to the . .
. employees affected in the amount of their unpaid minimum
wages, or their unpaid overtime compensation, as the case may
be, and in an additional equal amount as liquidated damages.” 29
U.S.C. § 216(b). “Liquidated damages are not a penalty exacted
by the law, but rather compensation to the employee occasioned
13

by the delay in receiving wages due caused by the employer’s
violation of the FLSA.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d
132, 142 (2d Cir. 1999) (citing Overnight Motor Transp. Co. v.
Missel, 316 U.S. 572, 583–84 (1942)). Courts have discretion to
deny an award of liquidated damages if “the employer shows that,
despite the failure to pay appropriate wages, the employer acted
in subjective ‘good faith’ and had objectively ‘reasonable
grounds’ for believing that the acts or omissions giving rise to
the failure did not violate the FLSA.” Id. at 142 (quoting 29
U.S.C. § 260). The employer bears the burden of establishing
both subjective good faith and objective reasonableness. See
Reich v. S. New England Telecommunications Corp., 121 F.3d 58,
71 (2d Cir. 1997). To establish good faith, the employer must
show that it (1) took active steps to ascertain the dictates of
the FLSA and then (2) acted to comply with them. See id.
The NYLL also provides for liquidated damages in addition
to actual damages under some circumstances. See N.Y. Lab. L.
§§ 198(1–a), 663(1).

While the statutory text of the federal

and state liquidated damages provisions differ, compare N.Y.
Lab. L. §§ 198(1–a), 663(1), with 29 U.S.C. § 260, courts have
not “substantively distinguished the federal standard from the
current state standard of good faith.” Inclan, 95 F. Supp. 3d at
505; see also He v. Home on 8th Corp., No. 09-cv-5630 (GBD),
2014 WL 3974670, at *7 n.19 (S.D.N.Y. Aug. 13, 2014).
14

Courts have held that, at the summary judgment stage, an
employer’s hiring of an accountant is a sufficient step to
create a genuine dispute of material fact as to an employer’s
good faith. See, e.g.,

Franco v. Jubilee First Ave. Corp., No.

14-cv-07729 (SN), 2016 WL 4487788, at *16 (S.D.N.Y. Aug. 25,
2016) (denying the plaintiff employees’ summary judgment motion
because the defendants “testified that at both . . . locations
they relied on advice from payroll companies regarding
compliance with federal and state wage-and-hour laws”); see also
Genao v. Blessed Sacrament Schl., No. 07-cv-3979 (CLP), 2009 WL
3171951, at *11 (E.D.N.Y. Oct. 1, 2009) (declining to award
liquidated damages in part because the defendant “was not aware
of the intricacies of the FLSA” and “relied on the accountant to
review the [employer’s] records”).
Here, the defendants point to evidence indicating that they
hired an outside accountant and bookkeeper and would fax the
hours and tip wages to the outside accountant on a weekly basis,
indicating that the defendants were not attempting to conceal
the way in which they were compensating employees.

Moreover,

the defendants point to testimony indicating that they read
materials provided by the government regarding wage and hour
laws, and posted this information in the restaurant.
Dertouzos Dep. 39:11-40:23.

See

Accordingly, genuine disputes of

material fact exist as to whether the defendants took sufficient
15

steps to comply with the dictates of the FLSA and NYLL to
establish good faith.

See Reich, 121 F.3d at 71.

As such, the

plaintiffs’ motion for partial summary judgment on the issue of
liquidated damages is denied.
E.
1.
Cucu argues that she is entitled to statutory damages
because the defendants did not provide her with a wage notice
containing certain required disclosures.

Under the Wage Theft

Prevention Act (“WTPA”), an employer must provide employees with
a wage notice containing information such as rate of pay and tip
allowances at the time of hiring and annually on or before the
first of February thereafter. See N.Y. Lab. L. § 195(1)(a). If
the employer fails to provide a proper wage notice, the
employees are entitled to recover statutory damages. 2010 N.Y.
Laws ch. 564 § 7, amending N.Y. Lab. L. § 198(1–b). “Prior to
February 27, 2015, the WTPA allowed employees to recover, as
statutory damages for violations of this wage notice
requirement, $50 per work week, not to exceed $2,500.” Inclan,
95 F. Supp. 3d at 502. For plaintiffs hired before the WTPA took
effect on April 9, 2011, the failure to provide a wage notice is
insufficient to support a WTPA claim because the Second Circuit
Court of Appeals has held that the WTPA does not apply
retroactively. See Gold v. N.Y. Life Ins. Co., 730 F.3d 137,
16

143–44 (2d Cir. 2013); Inclan, F. Supp. 3d at 502.
damages were increased after that date.

Statutory

Id. at n.6.

Thus, the

point in time at which the defendants were obligated to provide
a proper wage notice was February 1, 2012, the first February
after the WTPA was passed. See id. (determining that liability
for statutory damages began on February 1, 2012 for employees
hired before that date).
Here, it is undisputed that the defendants did not provide
Cucu with a wage notice form when she was hired.

The defendants

produced a wage notice signed by Cucu dated February 7, 2013,
and the defendants do not argue that Cucu was ever provided with
a wage notice prior to that date. As a result, there is no
genuine dispute of material fact that Cucu is entitled to
statutory damages of $50 per week for each week between February
1, 2012 and February 7, 2013 based upon the defendants’ failure
to provide Cucu with a wage notice, not to exceed $2,500.
2.
The WTPA also requires employers to include in each
employee’s pay statement an accounting of “gross wages;
deductions; allowances, if any, claimed as part of the minimum
wage; and net wages,” as well as “regular hourly rate or rates
of pay.” 2010 N.Y. Laws ch. 564, § 3, amending N.Y. Labor Law §
195(3). “Prior to February 27, 2015, the WTPA allowed employees
to recover, as statutory damages for violations of this wage
17

statement requirement, $100 per work week, not to exceed
$2,500.” Inclan, 95 F. Supp. 3d at 503 (citing 2010 N.Y. Laws
ch. 564 § 7, amending N.Y. Labor Law § 198(1–d)).
The plaintiffs claim that both Cucu and Iniguez did not
receive proper wage statements, because the statements they were
given lacked an hourly wage rate. The defendants admit that both
Cucu and Iniguez received wage statements that did not contain
any hourly rates until January 2013.

(56.1 Stmts ¶ 10, 26.)

Moreover, the payroll journals provided by the defendants
indicate that wage statements only began including hourly rates
on January 1, 2013.

(See Ex. 1 at 263-64.)

Thus, both Cucu and

Iniguez are entitled to statutory damages of $100 per week up
until January 1, 2013, up to $2,500. For Cucu, this period
begins on September 24, 2012. (See Ex. 1 at 250.) And for
Iniguez, this period begins on April 9, 2011, the date on which
the WTPA took effect. (See Ex. 1 at 365.) Thus, the plaintiffs’
motion for partial summary judgment is granted with respect to
their WTPA claims.
IV.
The damages calculations necessitated by this decision
require multiple calculations, with respect to each plaintiff
and cause of action.

These calculations are best performed, in

the first instance, by counsel. Accordingly, the Court hereby
directs the parties to submit revised proposed damages
18

calculations consistent with this Opinion. The Court hereby sets
the following schedule for such submissions:
By June 16, 2017, the plaintiffs shall provide a letter to
the defendants (but not then filed on ECF) itemizing, by
plaintiff and by claim, the plaintiffs’ proposed damages
calculation and explaining, clearly and with specificity, the
basis for each calculation.
By June 23, 2017, the defendants shall provide a letter to
the plaintiffs stating whether they have any objections to any
of the plaintiffs’ proposed damages calculations, and if so,
explaining, clearly and with specificity, the basis for each
point of disagreement, and stating (and explaining the basis
for) the defendants’ contrary calculation.

In the event the

defendants disagree as to any aspect of the plaintiffs’ damages
calculation, the parties are directed to meet and confer to
attempt to resolve any discrepancies.
By June 30, 2017, either (1) the parties shall jointly
submit a proposed damages calculation, or (2) the plaintiffs
shall file its proposed damages calculation, in which case the
defendants shall file any opposition by July 7, 2017, and the
plaintiffs shall file a reply by July 14, 2017.
2016 WL 3248493, at *36-37.

19

See Hernandez,

CONCLUSION
To the extent not specifically addressed above, the
remaining arguments are either moot or without merit. For the
foregoing reasons, the plaintiffs’ motion for partial summary
judgment is granted in part and denied in part.
SO ORDERED.

Dated:

New York, New York
June 1, 2017

_____________/s/_______________
John G. Koeltl
United States District Judge

20