Villar et al v. Prana Hospitality, Inc. et al

Filing 117

REPORT AND RECOMMENDATION re: 1 Complaint, filed by Lisa Brown, Edwin Sanchez, Joel Villar, Edgar Cazarez, Rene Peralta, Juan Carlos Flores, Primitivo Martinez. For the foregoing reasons, I recommend awarding each plaintiff damages a nd statutory penalties in the following amounts: 1. Joel Villar -- $11,147.48, 2. Primitivo Martinez -- $7,945.00, 3. Juan Carlos Flores -- $6,764.69, 4. Edwin Sanchez -- $17,848.50, 5. Rene Peralta -- $88,301.50 6. Edgar C azarez -- $53,150.00, 7. Lisa Brown -- $6,790.00, 8. Marlene Melendez -- $12,587.50, 9. Nicole Yochum -- $12,021.00, 10. Natalie Desposati -- $10,632.00, 11. Gerardo Mejia -- $69,001.00, 12. Omar Atenco -- $106,02 6.51. I further recommend an award of attorneys' fees and costs in the amount of $107, 749.87. Pursuant to 28 U.S.C. § 636 (b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourte en (14) days to file written objections to this Report and Recommendation. Such objection shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Ronnie Abrams, Room 2203, 40 Foley Square, New York , New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 4/25/2017.) (Signed by Magistrate Judge James C. Francis on 4/11/2017) Copies Transmitted this Date By Chambers. (anc)

allegations and evidence provided by the plaintiff.

I recommend

awarding the plaintiffs’ damages and penalties in the amount of
$402,215.18, and attorneys’ fees and

costs in the amount of

$107,749.00.
Background
The plaintiffs are former bartenders, bar backs, porters, and
food runners at a restaurant, Pranna, operated by Prana Hospitality
and Mr. Sharma.

(Complaint, ¶¶ 6, 11, 21, 26, 29, 39, 43, 55;

Declaration of Steven Seltzer dated Feb. 3, 2017 (“Seltzer Decl.”),
¶ 2; Declaration of Joel Villar dated Dec. 20, 2016 (“Villar
Decl.”), ¶¶ 4-6; Declaration of Primitivo Martinez dated Dec. 20,
2016 (“Martinez Decl.”), ¶¶ 4-7; Declaration of Juan Carlos Flores
dated Dec. 20, 2016 (“Flores Decl.”), ¶¶ 4-7; Declaration of Edwin
Sanchez dated Jan. 31, 2017 (“Sanchez Decl.”), ¶¶ 4-7; Declaration
of Rene Peralta dated Dec. 20, 2016 (“Peralta Decl.”), ¶¶ 4-7;
Declaration of Edgar Cazarez dated Dec. 20, 2016 (“Cazarez Decl.”),
¶¶ 4-7; Declaration of Lisa Brown dated Dec. 23, 2016 (“Brown
Decl.”), ¶ 4-5; Declaration of Marlene Melendez dated Jan. 26,
2017 (“Melendez Decl.”), ¶¶ 4-6; Declaration of Nicole Yochum dated
Jan. 26, 2017 (“Yochum Decl.”), ¶¶ 4-6; Declaration of Natalie
Desposati

dated

Jan.

31,

2017

(“Desposati

Decl.”),

¶¶

4-7;

Declaration of Gerardo Mejia dated Dec. 28, 2017 (“Mejia Decl.”),
¶¶ 4-7; Declaration of Omar Atenco dated Dec. 20, 2016 (“Atenco
2

Decl.”), ¶¶ 4-7).

Each plaintiff worked at the restaurant for

some period between October 2008 and March 2015.

(Villar Decl.,

¶ 4 (Aug. 2012 to Oct. 2014); Martinez Decl., ¶ 4 (Sept. 2010 to
Dec. 2013); Flores Decl., ¶ 4 (Nov. 2008 to March 2015); Sanchez
Decl., ¶ 4 (Feb. 2012 to June 2014); Peralta Decl., ¶ 4 (Oct. 2008
to May 2014); Cazarez Decl., ¶ 4 (March 2012 to March 2014); Brown
Decl., ¶ 4 (Oct. 2011 to May 2014); Melendez Decl., ¶ 4 (Sept.
2012 to Feb. 2014); Yochum Decl., ¶ 4 (Feb. 2013 to Jan. 2014);
Desposati Decl. ¶ 4 (Dec. 3, 2013, to June 29, 2014); Mejia Decl.,
¶ 4 (Oct. 2012 to Nov. 2014); Atenco Decl., ¶ 4 (Aug. 2009 to Feb.
2013)).2

Each plaintiff alleges that the defendants violated the

FLSA and NYLL in some or all of the following ways:
1.

failure to pay the proper minimum wage for hours
worked up to forty per week,

2.

failure to pay the agreed-upon wage for certain
hours worked,

3.

failure to pay time-and-a-half for hours worked
over forty per week,

4.

failure to pay a spread-of-hours premium for hours
worked over ten per day, and

5.

failure to provide wage statements in compliance
with the NYLL.

(Villar

Damages

Calculation

(“Villar

Calc.”),

attached

as

an

Each of the plaintiffs’ declarations is attached as an
exhibit to the Seltzer Declaration.
3
2

exhibit to Villar Decl.; Martinez Damages Calculation (“Martinez
Calc.”),

attached

as

Exh.

to

Martinez

Decl.;

Flores

Damages

Calculation (“Flores Calc.”), attached as Exh. to Flores Decl.;
Sanchez Damages Calculation (“Sanchez Calc.”), attached as Exh. to
Sanchez Decl.; Peralta Damages Calculation (“Peralta Calc.”),
attached as Exh. to Peralta Decl.; Cazarez Damages Calculation
(“Cazarez Calc.”), attached as Exh. to Cazarez Decl.; Brown Damages
Calculation (“Brown Calc.”), attached as Exh. to Brown Decl.;
Melendez Damages Calculation (“Melendez Calc.”), attached as Exh.
to Melendez Decl.; Yochum Damages Calculation (“Yochum Calc.”),
attached as Exh. to Yochum Decl.; Desposati Damages Calculation
(“Desposati Calc.”), attached as Exh. to Desposati Decl.; Mejia
Damages Calculation (“Mejia Calc.”), attached as Exh. to Mejia
Decl.; Atenco Damages Calculation (“Atenco Calc.”), attached as
Exh. to Atenco Decl.).3

In addition, both the Complaint and each

plaintiff individually alleges that the defendants’ violations
were willful.

(Complaint, ¶¶ 115, 121, 132, 140, 148, 152, 164;

The documents detailing the calculation of each plaintiffs’
damages indicate that the defendants violated NYLL § 198-d, which
requires food-service employers to post in a place easily visible
to employees a copy of the statutes and regulations “relating to
illegal deductions from wages and tips by employers.” However,
neither the Complaint nor any plaintiff’s declaration clearly
alleges a violation of this provision. In any case, it does not
appear that NYLL § 198-d provides for remedies or penalties against
an employer who violates it. See Chan v. Triple 8 Palace, Inc.,
No. 03 Civ. 6048, 2006 WL 851749, at *20 (S.D.N.Y. March 30, 2006).
4
3

Villar Decl., ¶ 15; Martinez Decl., ¶ 11; Flores Decl., ¶ 11;
Sanchez Decl., ¶ 17; Peralta Decl., ¶ 11; Cazarez Decl., ¶ 15;
Brown Decl., ¶ 11; Melendez Decl., ¶ 12; Yochum Decl., ¶ 11;
Desposati Decl., ¶ 14; Mejia Decl., ¶ 15; Atenco Decl., ¶ 12).
Discussion
A.

Legal Standards

Where a defendant has defaulted, all of the facts alleged in
the complaint, except those relating to the amount of damages,
must be accepted as true.

See Transatlantic Marine Claims Agency,

Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997);
Keystone Global LLC v. Auto Essentials, Inc., 12 Civ. 9077, 2015
WL 224359, at *3 (S.D.N.Y. Jan. 16, 2015).

The court may also

rely on factual allegations pertaining to liability contained in
affidavits and declarations submitted by the plaintiffs.

See,

e.g., Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir.
1993).

Nonetheless, a court “must still satisfy itself that the

plaintiff has established a sound legal basis upon which liability
may be imposed.”
(E.D.N.Y.

2012).

Jemine v. Dennis, 901 F. Supp. 2d 365, 373
Once

liability

has

been

established,

the

plaintiff must provide evidence establishing the amount of damages
with reasonable certainty.

Transatlantic Marine Claims Agency,

109 F.3d at 111.

5

B.

Liability
1.

The

Prerequisites for Coverage Under FLSA and NYLL

complaint

alleges

that

Prana

Hospitality

engaged

in

interstate commerce and had “annual gross volume of [sales made or
business done] not less than $500,000.”

(Complaint, ¶¶ 100-101).

It further alleges that Mr. Sharma had control over employment
practices at the restaurant.

(Complaint, ¶¶ 102-106).

Prana

Hospitality is therefore an “enterprise engaged in commerce” under
the FLSA, and Mr. Sharma qualifies as an “employer” under both the
FLSA

and

the

NYLL.

29

U.S.C.

§§

203(d),

203(r)(1),

203(s)(1)(A)(i)-(ii); NYLL §§ 198, 651; Herman v. RSR Security
Services Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (“[T]he overarching
concern is whether the alleged employer possessed the power to
control the workers in question with an eye to the ‘economic
reality’ presented by the facts of each case.” (internal citation
omitted)); Sethi v. Narod, 974 F. Supp. 2d 162, 188 (E.D.N.Y. 2013)
(“District courts in this Circuit ‘have interpreted the definition
of “employer” under the [NYLL] coextensively with the definition
used by the FLSA.’” (quoting Spicer v. Pier Sixty LLC, 269 F.R.D.
321, 335 n.13 (S.D.N.Y. 2010))).

As noted, the plaintiffs allege

that they worked at the restaurant operated by the defendants.
Thus, the prerequisites for coverage under both the FLSA and NYLL
are met.
6

2.

Statute of Limitations

The statute of limitations is six years for claims under the
NYLL and three years for claims under the FLSA if a defendant’s
acts are willful.

29 U.S.C. § 255(a); NYLL § 663(3); Angamarca

v. Pita Grill 7 Inc., No. 11 Civ. 7777, 2012 WL 3578781, at *4
(S.D.N.Y. Aug. 2, 2012).

As noted, the Complaint, filed on October

14, 2014, properly pleads willfulness, and each plaintiff has
similarly alleged that the defendants’ violations were willful.
Therefore, the plaintiffs may recover under the FLSA for violations
occurring after October 14, 2011, and under the NYLL for violations
occurring after October 14, 2008.
3.

Unpaid Minimum Wage

Both state and federal law mandate that employees be paid at
least a minimum hourly rate.4

29 U.S.C. § 206(a)(1); N.Y. Comp.

Although “[b]oth the FLSA and the NYLL permit an employer
to pay a tipped worker a cash wage that is lower than the statutory
minimum wage, provided that the cash wage and the employee’s tips,
taken together, are at least equivalent to the minimum wage,” this
“tip credit” is available only if certain notice requirements are
met. Inclan v. New York Hospitality Group, Inc., 95 F. Supp. 3d
490, 497-98 (S.D.N.Y. 2015) (citing 29 U.S.C. §§ 203(m), 206(a)(1),
and 12 NYCRR §§ 146–1.3(b), 146-2.2).
A number of plaintiffs
allege that they were not informed of the tip credit. (Sanchez
Decl., ¶ 14; Cazarez Decl., ¶ 12; Brown Decl., ¶ 8; Melendez Decl.,
¶ 9; Yochum Decl., ¶ 7; Desposati Decl., ¶ 11; Mejia Decl., ¶ 12).
In any case, it is the employers’ burden to show that they have
complied with the notice requirements. Inclan, 95 F. Supp. 3d at
497. Prana Hospitality and Mr. Sharma have failed to do so here,
so they could not take advantage of the tip credit even without
these allegtations.
7
4

Codes R. & Regs. tit. 12 (“12 NYCRR”), § 146-1.2.

“The federal

minimum wage does not preempt the state minimum wage, and a
plaintiff may recover under whatever statute provides the highest
measure of damages.”

Wicaksono v. XYZ 48 Corp., No. 10 Civ. 3635,

2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) (internal citation
omitted),

report

and

recommendation

(S.D.N.Y. May 24, 2011).

adopted,

2011

WL

2038973

In the period at issue -- October 14,

2008, to March 31, 2015 -- the higher of the two minimum wages
rose periodically, from $7.15 per hour from October 14, 2008, to
July 23, 2009,5 see id.; see also 29 U.S.C. § 206(a)(1); NYLL §
652(1); to $7.25 per hour from July 24, 2009 to December 30, 2013,
see Wicaksono, 2011 WL 2022644, at *3; see also 29 U.S.C. §
206(a)(1); NYLL § 652(1); to $8.00 per hour from December 31, 2013
to December 30, 2014, see 29 U.S.C. § 206(a)(1); NYLL § 652(1);
and finally to $8.75 per hour from December 31, 2014, to March 31,
2015, see 29 U.S.C. § 206(a)(1); NYLL § 652(1).

Eight of the

plaintiffs -- Mr. Sanchez, Mr. Peralta, Mr. Cazarez, Ms. Melendez,
Ms. Yochum, Ms. Desposati, Mr. Mejia, and Mr. Atenco -- allege
that they were paid less than the required minimum wage.

(Sanchez

Decl., ¶ 14; Sanchez Calc.; Peralta Decl., ¶ 8; Peralta Calc.;

The plaintiffs’ damages calculations incorrectly identify
the applicable minimum wage rate during this period as $7.25 per
hour.
8
5

Cazarez Decl., ¶¶ 9-10; Cazarez

Calc.; Melendez Decl., ¶ 9;

Melendez Calc.; Yochum Decl., ¶ 7; Yochum Calc.; Desposati Decl.,
¶ 11; Desposati Calc.; Mejia Decl., ¶¶ 9-10, 12; Mejia Calc.;
Atenco Decl., ¶ 8; Atenco Calc.).
4.

Unpaid Agreed-Upon Wage

The FLSA allows recovery for unpaid “straight” time only up
to the minimum wage rate.

Kernes v. Global Structures, LLC, No.

15 Civ. 659, 2016 WL 880199, at *3 (S.D.N.Y. March 1, 2016).

The

NYLL provides, on the other hand, for a claim of straight time at
a rate higher than the minimum wage if the parties previously
agreed to the rate, and courts have awarded straight time rates
higher than the minimum wage under a variety of NYLL sections.
See, e.g., id. (NYLL § 198(3)); Armata v. Unique Cleaning Services,
LLC, No. 13 CV 3625, 2015 WL 12645527, at *5 (E.D.N.Y. Aug. 27,
2015) (NYLL § 198(3)); Hernandez v. NJK Contractors, Inc., No. 09
CV 4812, 2015 WL 1966355, at *42 (E.D.N.Y. May 1, 2015) (NYLL §§
191(1), 198(3)); Santillan v. Henao, 822 F. Supp. 2d 284, 292
(E.D.N.Y.

2011)

(NYLL

§

198(3));

Wing

Kwong

Ho

v.

Target

Construction of NY, Corp., No. 08 CV 4750, 2011 WL 1131510, at *14
(E.D.N.Y. March 28, 2011) (NYLL § 191(1)); Epelbaum v. Nefesh
Achath B’Yisrael, Inc., 237 A.D.2d 327, 330, 654 N.Y.S.2d 812, 814
(2d Dep’t 1997) (NYLL §§ 191, 198); but see Myers v. Hertz Corp.,
624 F.3d 537, 545 n.1 (2d Cir. 2010) (“New York courts have
9

suggested that plaintiffs may not use Labor Law § 191 to seek
unpaid wages to which they claim to be entitled under a statute
. . . .”); McGlone v. Contract Callers Inc., 114 F. Supp. 3d 172,
173 (S.D.N.Y. 2015) (declining to hold that NYLL § 663(1) allows
claims for wage rates higher than minimum wage); Gottlieb v.
Kenneth D. Laub & Co., 82 N.Y.2d 457, 464, 605 N.Y.S.2d 213, 217
(1993) (“[A]ll of the remaining provisions of Labor Law § 198
strongly suggest that the entire section was intended merely to
afford procedural rules . . . to apply in actions brought for wage
claims created under the substantive provisions of Labor Law
article 6.”).

Here, Mr. Martinez, Ms. Brown, Ms. Melendez, Ms.

Yochum, and Ms. Desposati allege that they were not paid an agreedupon wage that was higher than the minimum wage.

(Martinez Decl.,

¶ 8; Martinez Calc.; Brown Decl., ¶ 7; Brown Calc.; Melendez Decl.,
¶ 8; Melendez Calc; Yochum Decl., ¶ 8; Yochum Calc.; Desposati
Decl., ¶ 10; Desposati Calc.).
5.

Unpaid Overtime

Both the FLSA and the NYLL provide that a non-exempt employee
must be paid one and one-half times their regular rate for hours
worked in excess of forty hours per week.
12 N.Y.C.R.R. § 142–2.2.

29 U.S.C. § 207(a)(1);

Mr. Villar, Mr. Cazarez, Mr. Mejia, and

Mr. Atenco allege that they were not paid in accordance with these
provisions.

(Villar Decl., ¶ 11; Villar Calc.; Cazarez Decl., ¶
10

10; Cazarez Calc.; Mejia Decl., ¶ 10; Mejia Calc.; Atenco Decl.,
¶ 8; Atenco Calc.).
6.

Unpaid Spread-of-Hours Premium

The “spread-of-hours” provision in the New York regulations
requires an additional hour’s pay at the “basic minimum hourly
wage rate” for any day where the employee works in excess of ten
hours.

12 NYCRR § 142-2.4.

Before January 1, 2011, by its plain

language, section 142-2.4(a) required spread-of-hours wages only
for employees who were paid at the minimum wage.

See Espinosa v.

Delgado Travel Agency, Inc., No. 05 Civ. 6917, 2007 WL 656271, at
*2 (S.D.N.Y. March 2, 2007).

Effective January 1, 2011, employers

are required to pay spread-of-hours wages for “all employees in
restaurants and all-year hotels, regardless of a given employee’s
regular rate of pay.”

12 NYCRR § 146-1.6(d).

Mr. Flores and Mr.

Atenco claim unpaid spread-of-hours premiums for the period before
and the period after January 1, 2011; however, neither of those
plaintiffs was paid at a rate higher than minimum wage.

(Flores

Decl., ¶ 8; Flores Calc.; Atenco Decl., ¶¶ 7-9; Atenco Calc.).
Mr. Villar, Mr. Sanchez, Mr. Cazarez, Ms. Brown, Ms. Desposati,
and Mr. Mejia claim unpaid spread-of-hours premiums for the period
after January 1, 2011.

(Villar Decl., ¶ 12; Villar Calc.; Sanchez

Decl., ¶ 11; Sanchez Calc.; Cazarez Decl., ¶ 11, Cazarez Calc.;
Brown Decl., ¶ 6; Brown Calc.; Desposati Decl., ¶ 9; Desposati
11

Calc.; Mejia Decl., ¶ 11; Mejia Calc.).
7.

Liquidated Damages

Both the FLSA and the NYLL provide for liquidated damages.
An employer who violates overtime provisions of the FLSA is liable
for an amount in liquidated damages equal to the amount owed in
compensatory damages.

29 U.S.C. § 216(b); Smith v. Nagai, No. 10

Civ. 8237, 2012 WL 2421740, at *4 (S.D.N.Y. May 15, 2012) (“A
defendant found to have violated the FLSA is required to pay the
employee an additional amount in liquidated damages equal to the
unpaid overtime.”), report and recommendation adopted sub nom.
Smith v. Saki Restaurant Corp., 2012 WL 2428929 (S.D.N.Y. June 27,
2012).

The same is true under the NYLL for unpaid wages accrued

on or after April 9, 2011.6

NYLL §§ 198(1-a), 663(1); see Garcia

v. Giorgio’s Brick Oven & Wine Bar, No. 11 Civ. 4689, 2012 WL
3339220, at *4 (S.D.N.Y. Aug. 15, 2012) (“Effective April 9, 2011,
Sections 198(1-a) and 663(1) of the NYLL were amended to provide
for liquidated damages equal to one-hundred percent of the amounts
underpaid.”), report and recommendation adopted, 2012 WL 3893537

In a recent unpublished decision, the Second Circuit stated
that liquidated damages should be awarded under the FLSA or the
NYLL, but not both. Chowdhury v. Hamza Express Food Corp., 666
F. App’x 59, 61 (2d Cir. 2016); see also Granados v. Traffic Bar
and Resturant, No. 13 Civ. 500, 2016 WL 7410725, at *4 (S.D.N.Y.
Dec. 21, 2016). None of the plaintiffs seeks to “stack” liquidated
damages here.
12
6

(S.D.N.Y. Sept. 7, 2012).
date,

a

successful

For unpaid wages accrued prior to that

plaintiff

is

presumptively

entitled

liquidated damages in an amount equal to 25% of unpaid wages.

to
See

Inclan, 95 F. Supp. 3d at 504-05; see also Gold v. New York Life
Insurance Co., 730 F.3d 137, 144 (2d Cir. 2013) (“Because there is
no support for retroactivity in either the text or the legislative
history, we hold that the 2011 amendment is not retroactive.”).
7.

Wage Statements

The NYLL requires that all wage statements include, among
other things, the employee’s rate of pay, deductions, allowances,
and overtime rate of pay.

NYLL § 195(3).

Each plaintiff alleges

that the defendants failed to provide wage statements.

(Villar

Decl., ¶ 13; Martinez Decl., ¶ 9; Flores Decl., ¶ 9; Sanchez Decl.,
¶ 15; Peralta Decl, ¶ 9; Cazarez Decl., ¶ 13; Brown Decl., ¶ 9;
Melendez Decl, ¶ 10; Yochum Decl., ¶ 9; Desposati Decl., ¶ 12;
Mejia Decl., ¶ 13; Atenco Decl., ¶ 10.).

When the bulk of these

violations took place, the NYLL provided for a statutory penalty
of “$100 for each week that [the employee] did not receive a wage
statement with his wage payment, up to a statutory maximum of
$2,500.”

Galicia v. 63-68 Diner Corp., No. 13 CV 3689, 2015 WL

1469279, at *8 & n.14 (E.D.N.Y. March 30, 3015).
seek penalties at that rate.

13

The plaintiffs

C.

Damages
1.

Mr. Villar

Mr. Villar worked 46.5 hours per week from August 2012 until
October 2014.

(Villar Decl., ¶¶ 4, 9).

hour for those hours.

He was paid $7.43 per

(Villar Decl., ¶ 10).

He seeks unpaid

overtime wages and spread-of-hours premiums, as well as liquidated
damages and statutory penalties.
a.

Unpaid Overtime

For the period from August 1, 2012, to December 30, 2013 -a span of approximately 74 weeks -- Mr. Villar asserts that he was
due weekly compensation in the amount of $360.69 (i.e., minimum
wage

of

$7.25/hour

x

40

hours

=

$10.875/hour x 6.5 hours = $70.69).

$290.00;

overtime

(Villar Calc.).

wage

of

He was paid

$345.49, leaving $15.20 in unpaid weekly overtime compensation,
for a total of $1,124.80 (i.e., $15.20/week x 74 weeks).
For the period from December 31, 2013, until October 31, 2014
-- a span of approximately 44 weeks -- Mr. Villar asserts that he
was due weekly compensation in the amount of $398.00 (i.e., minimum
wage

of

$8.00/hour

x

40

hours

$12.00/hour x 6.5 hours = $78.00).

=

$320.00;

overtime

(Villar Calc.).

wage

of

He was paid

$345.49, leaving $52.51 in unpaid weekly overtime compensation,
for a total of $2,310.44 (i.e., $52.51 per week x 44 weeks).

14

b.

Unpaid Spread-of-Hours Premium

On one day of each week, Mr. Villar worked a shift of longer
than ten hours.

(Villar Decl., ¶ 9).

For the 74 weeks between

August 1, 2012, and December 30, 2013, he should have been paid an
additional $536.50 (i.e., minimum wage of $7.25/hour x 1 hour/week
x 74 weeks).

For the 44 weeks between December 31, 2013, and

October 31, 2014, he should have been paid an additional $352.00
(i.e., minimum wage of $8.00/hour x 1 hour/week x 44 weeks).
c.

Liquidated Damages and Statutory Penalties

Mr. Villar is entitled to liquidated damages in the amount of
$4,323.74 (i.e., $1,124.80 + $2,310.44 + $536.50 + $352.00).

In

addition, like all of the plaintiffs, Mr. Villar asserts that he
was never provided with a proper wage statement.

He is therefore

entitled to a penalty of $100.00 for each week he worked, up to a
maximum of $2,500.00.

Because he worked for more than 25 weeks,

he is entitled to the maximum.
2.

Mr. Martinez

Mr. Martinez worked for the defendants from September 2010
until December 2013.

(Martinez Decl., ¶ 4).

He asserts that on

approximately 30 days each year, he worked for two hours at an
agreed-upon rate of $15.00 per hour, which the defendants failed
to pay.

(Martinez Decl., ¶ 8).

He also seeks liquidated damages

and statutory penalties.
15

a.

Unpaid Agreed-Upon Wage

During the period from September 1, 2010, to April 8, 2011,
Mr. Martinez performed 28 hours of unpaid work for which the
agreed-upon wage was $15.00 per hour.

(Martinez Calc.).

That

amounts to $420.00 in unpaid wages (i.e., $15.00/hour for 28
hours).

During the period from April 9, 2011, to December 30,

2013, Mr. Martinez performed 164 hours of unpaid work for which
the agreed-upon wage was $15.00 per hour, amounting to $2,460.00.
(Martinez Calc.).
b.

Liquidated Damages and Statutory Penalties

As noted above, for unpaid wages accrued before April 9, 2011,
the measure of liquidated damages under the NYLL is 25%.
that amounts to $105.00 (i.e., 25% of $420.00).

Here,

From April 9,

2011, forward, an employee is entitled to liquidated damages in an
amount equal to the amount of unpaid wages -- here, $2,460.00.
Because Mr. Martinez worked for the defendants for at least 25
weeks, the statutory penalty for the failure to provide wage
statements is $2,500.00.
3.

Mr. Flores

Mr. Flores worked for the defendants from November 2008 until
March 2015.

(Flores Decl., ¶ 4).

spread-of-hours

premiums,

He seeks to recover unpaid

liquidated

penalties.
16

damages,

and

statutory

a.

Unpaid Spread-of-Hours Premium

On one day of each week during his tenure at Pranna, Mr.
Flores worked for 17 hours.

(Flores Decl., ¶ 7-8).

provided spread-of-hours pay for any of these days.
from

November

1,

2008,

to

July

23,

2009

He was not

For the period

--

a

period

of

approximately 38 weeks during which the applicable minimum wage
was $7.15 per hour -- Mr. Flores is entitled to an additional
$271.70.

For the period from July 24, 2009, to April 8, 2011 --

approximately 89 weeks during which minimum wage was $7.25 per
hour -- Mr. Flores is entitled to $645.25.

For the period from

April 9, 2011, to December 30, 2013 -- a period of approximately
142 weeks7 during which the minimum wage was $7.25 per hour -- Mr.
Flores is entitled to an additional $1,029.50.

For the period

from December 31, 2013, to December 30, 2014 -- a period of 52
weeks during which the applicable minimum wage was $8.00 per hour
-- Mr. Flores is entitled to an additional $416.00.

And for the

period from December 31, 2014, to March 31, 2015 -- a period of
approximately 13 weeks during which the applicable minimum wage
was $8.75 per hour -- Mr. Flores is entitled to an additional
$113.75.

The plaintiffs
(Flores Calc.).
7

miscalculate
17

this

period

as

141

weeks.

b.

Liquidated Damages and Statutory Penalties

Mr. Flores’ liquidated damages for unpaid wages accrued prior
to April 9, 2011, are 25% of $916.95 (i.e., $271.70 + $645.25), or
$229.24.

For

the

remainder

the

period

he

worked

for

the

defendants, his liquidated damages amount to $1,559.25 (i.e.,
$1,029.50 + $416.00 + 113.75).

Because Mr. Flores worked for the

defendants for more than 25 weeks, the statutory penalty for the
failure to provide wage statements is $2,500.00.
4.

Mr. Sanchez

Mr. Sanchez worked for the defendants from February 2012,
until June 2014.

(Sanchez Decl., ¶ 4).

For the first year, he

worked 44 hours per week for a weekly salary of $338.00.
Decl., ¶¶ 8-9).
17

hours.

(Sanchez

One day during each of those weeks, he worked for

(Sanchez

Decl.,

¶¶

8,

11).

For

the

remaining

approximately 73 weeks he worked at Pranna, he worked 38 hours per
week, including one shift per week of 11 hours.
¶¶ 12-14).

(Sanchez Decl.,

During this period, he was paid $5.00 per hour.

(Sanchez Decl., ¶ 14).

He seeks recovery of unpaid minimum wages

and spread-of-hours premiums, as well as liquidated damages and
statutory penalties.
a.

Unpaid Minimum Wage

For the period from February 1, 2013, to December 30, 2013,

18

the minimum wage was $7.25 per hour.8

During this period, Mr.

Sanchez worked 38 hours per week and was paid at a rate of $5.00
per hour, for a total of $190.00 per week.
14; Sanchez Calc.).

(Sanchez Decl., ¶¶ 12,

Had he been paid at the minimum wage rate,

he would have received $275.50 per week. He is therefore due $85.50
per week for this 47 week period, for a total of $4,018.50.
For the period from December 31, 2013, to June 30, 2014, the
applicable minimum wage was $8.00 per hour.

Had Mr. Sanchez been

paid at that rate, he would have received $304.00 for his 38 hours
of work, which is $114.00 more than he was actually paid.
Decl., ¶¶ 12, 14; Sanchez Calc.).

(Sanchez

He is therefore owed $2,964.00

for this 26-week period (i.e., $114.00 per week x 26 weeks).
b.

Unpaid Spread-of-Hours Premium

For one day each week during the period from February 1, 2012,
to February 1, 2013, Mr. Sanchez worked 17 hours, but was not paid
an extra hour at the minimum wage rate of $7.25 per hour.
Decl., ¶¶ 8, 11).
per week.

(Sanchez

As noted, he was paid a straight wage of $338.00

He should have been paid a total of $340.75 (i.e.,

(minimum wage of $7.25/hour for 40 hours = $290/week) + (overtime
rate of $10.875/hour for 4 hours per week = $43.50) + spread-of-

Mr. Sanchez does not allege he is owed damages for unpaid
minimum wage for the period between February 1, 2012, and February
1, 2013. (Sanchez Calc.).
19
8

hours premium of $7.25/week = $7.25)).

He was therefore underpaid

by $2.75 per week for this 52 week period, and is due an additional
$143.00.

(Sanchez Calc.).

For one day each of the remaining weeks of his time at Pranna
Restaurant, he worked 11 hours, but was again not paid a spreadof-hours premium.

(Sanchez Decl. ¶¶ 12-13).

As the minimum wage

was $7.25 per hour for the 47 weeks from February 2, 2013 to
December 30, 2013, he is due an additional $340.75.

From December

31, 2013 to June 30, 2014, the applicable minimum wage was $8.00
per hour, and Mr. Sanchez is owed $208.00 for this period (i.e.,
minimum wage of $8.00/hour x 1 hour/week x 26 weeks).
c.

Liquidated Damages and Statutory Penalties

Mr. Sanchez is due $7,674.25 in liquidated damages (i.e.,
$4,018.50 + $2,964.00 + $143.00 + $ 340.75 + $208.00).

Because

he worked for the defendants for 25 weeks or more, the statutory
penalty for the failure to provide wage statements is $2,500.00.
5.

Mr. Peralta

Mr. Peralta worked for the defendants from October 2008 until
May 2014.

(Peralta Decl., ¶ 4).

He worked 40 hours per week for

the entire period he was employed, but was paid for only 16 hours.
(Peralta Decl., ¶ 8).

He seeks unpaid minimum wages, as well as

liquidated damages and statutory penalties.

20

a.

Unpaid Minimum Wage

For the period from October 14, 2008, to July 23, 2009, the
minimum wage was $7.15 per hour.

Mr. Peralta was not paid for 24

hours of work time each week, for a total of $171.60 per week of
unpaid minimum wage.

For this period of approximately 40 weeks,

Mr. Peralta is owed $6,864.00 (i.e., $171.60/week x 40 weeks).
From July 24, 2009, to April 8, 2011, the minimum wage was $7.25
per hour.

Again, Mr. Peralta was not paid for 24 hours of work

time each week, for a total of $174.00 per week of unpaid minimum
wage.

(Peralta Calc.).

is owed $15,486.00.

For this period of 89 weeks, Mr. Peralta

From April 9, 2011, to December 30, 2013, the

minimum wage was also $7.25 per hour.
Mr. Peralta is owed $24,708.00.

For this 142-week period,9

For the period from December 31,

2013, to May 31, 2014, the applicable minimum wage was $8.00 per
hour.

Mr. Peralta was therefore underpaid by $192.00 (i.e.,

$8.00/hour x 24 hours/week).

For this 22-week period, Mr. Peralta

is due $4,224.00.
b.

Liquidated Damages and Statutory Penalties

For the period prior to April 9, 2011, Mr. Peralta is due
$5,587.50 in liquidated damages (i.e., 25% of $22,350.00 in unpaid
minimum wage).

9

For the remainder of the time he worked at Pranna,

Again, the plaintiffs miscalculate this period as 141 weeks.
21

he is due $28,932.00 in liquidated damages (i.e., $24,708.00 +
$4,224.00).

Because he worked for the defendants for more than

25 weeks, the statutory penalty for the failure to provide wage
statements is $2,500.00.
6.

Mr. Cazarez

Mr. Cazarez worked for the defendants from March 2012 to March
2014.

(Cazarez Decl., ¶ 4).

He worked 49 hours each week, and

two days per week he worked for 13 hours.
9).

(Cazarez Decl., ¶¶ 8-

He was paid $5.00 per hour for 35 hours of this time and was

not paid a spread-of-hours premium.

(Cazarez Decl., ¶¶ 9, 11).

He seeks to recover unpaid minimum wages, overtime, and spreadof-hours premiums, as well as liquidated damages and statutory
penalties.
a.

Unpaid Minimum Wage

From March 1, 2012, to December 30, 2013, the minimum wage
was $7.25 per hour.

Mr. Cazarez was paid $175.00 per week.

(Cazarez Calc.).

Had he been paid at the minimum wage for 40

hours

he

per

week,

would

have

received

$290.00

per

week.

Therefore, for this 96-week period, he was underpaid by $115 per
week, for a total minimum wage underpayment during this period of
$11,040.00.
From December 31, 2013, to March 31, 2014, the applicable
minimum wage was $8.00 per hour.
22

During this 13-week period, Mr.

Cazarez was paid $175.00 instead of the $320.00 per week he was
due at the minimum wage.

This is an underpayment of $145.00 per

week, for a total of $1,885.00.
b.

(Cazarez Calc.).

Unpaid Overtime

From March 1, 2012, to December 30, 2013, Mr. Cazarez should
have received $97.88 per week in overtime pay, for a total of
$9,396.00 (i.e., overtime rate of $10.875/hour x 9 hours/week
overtime x 96 weeks).

For the remaining 13 weeks, he should have

received $108.00 per week in overtime, for a total of $1,404.00
(i.e., overtime rate of $12.00/hour x 9 hours/week overtime x 13
weeks).10
c.

Unpaid Spread-of-Hours Premium

Mr. Cazarez should have been paid two hours per week at the
minimum wage rate as a spread-of-hours premium.

For the period

prior to December 31, 2013, that amounts to $1,392.00 (i.e.,
minimum wage rate of $7.25/hour x 2 hours/week x 96 weeks).

For

the remaining 13 weeks, he should have received an additional
$208.00 (i.e., minimum wage rate of $8.00/hour x 2 hours/week x 13
weeks).

(Cazarez Calc.).

The plaintiffs misidentify the overtime rate during this
period as $16.00 per hour rather than $12.00 per hour. (Cazarez
Calc.).
23
10

d.

Liquidated Damages and Statutory Penalties

Mr. Cazarez is entitled to liquidated damages in the amount
of $25,325.00 (i.e., $11,040.00 + $1,885.00 + $9,396.00 + $1,404.00
+ $1,392.00 + $208.00).11

Because he worked for the defendants

for at least 25 weeks, the statutory penalty for the failure to
provide wage statements is $2,500.00.
7.

Ms. Brown

Ms. Brown worked for the defendants from October 2011 until
May 2014.

(Brown Decl., ¶ 4).

She seeks to recover unpaid agreed-

upon wages and spread-of-hours premiums, as well as liquidated
damages and statutory penalties.
a.

Unpaid Agreed-Upon Wage

On 40 days during her employment at Pranna, the defendants
failed to pay Ms. Brown an agreed-upon wage of $25.00 per hour for
two hours of work.

(Brown Decl., ¶ 7).

Therefore, she was

underpaid by $2,000 (i.e., agreed-upon rate of $25.00/hour x 2
hours/day x 40 days).
b.

Unpaid Spread-of-Hours Premium

On 20 days during her employment at Pranna Restaurant, Ms.

There is an addition error in the plaintiffs’ calculations
of Mr. Cazarez’s liquidated damages for the March 2012 through
December 2013 period, in addition to the error in identifying the
overtime wage rate noted above. (Cazarez Calc.).
11

24

Brown worked more than 10 hours per day, and the defendants failed
to pay her an additional hour at the minimum wage rate.
Decl., ¶ 6).

(Brown

She is therefore entitled to an additional $145.00

(i.e., minimum wage rate of $7.25/hour12 x 1 hour/day x 20 days).
c.

Liquidated Damages and Statutory Penalties

Ms. Brown’s liquidated damages amount to $2,145.00.

Because

she worked for the defendants for more than 25 weeks, the statutory
penalty for the failure to provide wage statements is $2,500.00.
8.

Ms. Melendez

Ms. Melendez worked for the defendants from September 2012
until February 2014.

(Melendez Decl., ¶ 4).

She seeks unpaid

minimum wages and agreed-upon wages, as well as liquidated damages
and statutory penalties.
a.

Unpaid Minimum Wage

Ms. Melendez worked an average of 23 hours per week during
her employment at Pranna Restaurant and was paid $5.00 per hour.
(Melendez Decl., ¶¶ 7, 9).

That is, during the 69-week period up

to and including December 30, 2013,13 when the minimum wage was

Although the minimum wage rose to $8.00 per hour on December
31, 2013, Ms. Brown does not indicate how many of the days on which
the defendants improperly withheld a spread-of-hours premium
occurred on or after that date. She therefore seeks only $7.25
per hour. (Brown Calc.).
12

This is a period of 486 days, which amounts to 69.42 weeks.
I have rounded that down to 69 weeks, rather than rounding it up
25
13

$7.25 per hour, she was paid $115.00 per week rather than $166.75
per

week.

This

deficit

underpayment of $3,570.75.

of

$51.75

per

week

adds

up

to

an

For the nine weeks from December 31,

2013 up to and including February 28, 2014,14 when the applicable
minimum wage was $8.00 per hour, Ms. Melendez was underpaid by
$69.00 per week (i.e., (minimum wage of $8.00/hour x 23 hours) (actual wage of $5.00/hour x 23 hours)).

This amounts to $621.00

in underpayment.
b.

Unpaid Agreed-Upon Wage

For approximately 24 days per year, the defendants failed to
pay Ms. Melendez an agreed-upon wage of $25.00 per hour for two
hours of work.

(Melendez Decl., ¶ 8).

Although she worked for

Pranna Restaurant for 17 months, or approximately 1.42 years, Ms.
Melendez seeks payment only for 48 hours that she worked at this
agreed-upon rate during the period when the minimum wage was $7.25
per hour.

(Melendez Calc.).

amounts to $1,200.00.

Forty-eight hours at $25.00 per hour

Subtracting the $7.25 per hour I have

already recommended she be awarded above, she is entitled to an
additional $852.00 (i.e., $1,200.00 - (minimum wage of $7.25/hour

to 70 weeks, as the plaintiffs have.
This is a period
has been the practice in
nearest whole number -weeks, as the plaintiffs
14

(Melendez Calc.).

of 60 days, which equals 8.57 weeks. As
this case, I have rounded this up to the
that is, 9 weeks -- rather than to 8.5
have. (Melendez Calc.).
26

x 2 hours/day x 24 days)).
c.

Liquidated Damages and Statutory Penalties

Ms. Melendez is entitled to liquidated damages in the amount
of $5,043.75 (i.e. $3,570.75 + $621.00 + $852.00).

Because she

worked for the defendants for more than 25 weeks, the statutory
penalty for the failure to provide wage statements is $2,500.00.
9.

Ms. Yochum

Ms. Yochum worked for the defendants from February 2013 until
January 2014.

(Yochum Decl., ¶ 4).

She worked an average of 26

hours per week and was paid $5.00 per hour, for a total of $130.00
per week.

(Yochum Decl., ¶ 7).

She seeks recovery of unpaid

minimum wages and agreed-upon wages, as well as liquidated damages
and statutory penalties.
a.

Unpaid Minimum Wage

From February 1, 2013, to December 30, 2013, a period of
approximately 48 weeks,15 the minimum wage was $7.25 per hour.
that rate, Ms. Yochum should have been paid $188.50 per week.

At
Her

underpayment therefore adds up to $2,808.00 (i.e., ($188.50/week
- $130.00/week) x 48 weeks).16

This is a period of 333 days, or 47.57 weeks, which I again
round to the nearest whole number of 48 rather than to 47.5 as the
plaintiffs have. (Yochum Calc.).
15

Ms. Yochum does not seek to recover any damages for the
period from December 31, 2013, to January 31, 2014.
(Yochum
27
16

b.

Unpaid Agreed-Upon Wage

Four to six times per month, the defendants failed to pay Ms.
Yochum for 2 hours of time at an agreed-upon rate of $25.00 per
hour.

(Yochum Decl., ¶ 8).

Although she worked at Pranna until

the end of January 2014, she seeks payment only for the extra hours
she worked during calendar year 2013.

(Yochum Calc.).

For these

hours during the period up to and including December 31, 2013, Ms.
Yochum should have received a total of $2,750.00 (i.e., $25.00/hour
x 10 hours/month x 11 months).

Subtracting the $7.25 per hour I

have already recommended she be awarded above, she is entitled to
an additional $1,952.50 for this period (i.e. $2,750.00 - (minimum
wage of $7.25/hour x 10 hours/month x 11 months).
c.

Liquidated Damages and Statutory Penalties

Ms. Yochum is entitled to liquidated damages in the amount of
$4,760.50 (i.e., $2,808.00 + $1,952.50).

Because she worked for

the defendants for at least 25 weeks, the statutory penalty for
the failure to provide wage statements is $2,500.00.
10.

Ms. Desposati

Ms. Deposati worked for the defendants from December 3, 2013,
until June 29, 2014.

(Desposati Decl., ¶ 4).

She worked an

average of 28 hours per week, including two eleven-hour shifts

Calc.).
28

each week, and was paid $5.00 per hour.
9, 11).

(Desposati Decl., ¶¶ 8-

She seeks to recover unpaid minimum wages, agreed-upon

wages, and spread-of-hours premiums, as well as liquidated damages
and statutory penalties.
a.

Unpaid Minimum Wage

For the first four weeks of her employment, the minimum wage
was $7.25 per hour.
paid

$203.00

received.

per

At that rate, Ms. Desposati should have been
week

rather

than

the

$140.00

per

week

she

This amounts to an underpayment of $252.00 (i.e.,

($203.00/week - $140.00/week) x 4 weeks).

From December 31, 2013,

until June 29, 2014 -- a period of approximately 26 weeks -- the
applicable minimum wage was $8.00 per hour.
Deposati

should

underpayment

was

have

received

therefore

$224.00

$2,184.00

At that rate Ms.

per

(i.e.,

week,

and

($224.00/week

her
-

$140/week) x 26 weeks).
b.

Unpaid Agreed-Upon Wage

For 34 days during her employment with Pranna Restaurant, the
defendant failed to pay her for two hours at an agreed-upon rate
of $25.00 per hour.

(Desposati Decl., ¶ 10).

at $25.00 per hour adds up to $1,700.00.

Sixty-eight hours

Subtracting the $8.00

per hour that I have already recommended she be awarded for the
bulk of her time at Pranna Restaurant, she is entitled to an
additional

$1,156.00

(i.e.,

$1,700.00
29

-

(minimum

wage

of

$8.00/hour x 68 hours)).
c.

Unpaid Spread-of-Hours Premium

Ms. Desposati was not paid a spread-of-hours premium.

For

the first four weeks of her employment, that underpayment totals
$58.00 (i.e., spread-of-hours premium at $7.25/day x 2 days/week
x 4 weeks).

For the remaining 26 weeks, the underpayment totals

$416.00 (i.e., spread-of-hours premium at $8.00/day x 2 days/week
x 26 weeks).
d.

Liquidated Damages and Statutory Penalties

Ms. Desposati is entitled to liquidated damages in the amount
of $4,066.00 (i.e., $252.00 + $2,184.00 + $1,156.00 + $58.00 +
$416.00).17

Because she worked for the defendants for more than

25 weeks, the statutory penalty for the failure to provide wage
statements is $2,500.00.
11.

Mr. Mejia

Mr. Mejia worked for the defendants from October 2012 until
November 2014.

(Mejia Decl., ¶ 4).

While he was employed at

Pranna Restaurant, Mr. Mejia worked 54 hours per week,18 including
one twelve-hour shift.

(Mejia Decl., ¶¶ 8-9).

The plaintiffs
(Desposati Calc.).

miscalculate

17

this

He was paid $5.00

amount

as

$4,069.00.

The plaintiffs miscalculate the hours Mr. Mejia worked as
52 hours per week. (Mejia Decl., ¶ 9; Mejia Calc.).
30
18

per hour for 35 hours per week.

(Mejia Decl., ¶ 9).

He seeks

unpaid minimum wages, overtime, and spread-of-hours premiums, as
well as liquidated damages and statutory penalties.
a.

Unpaid Minimum Wage

For the approximately 65-week period from October 1, 2012, to
December 30, 2013, the minimum wage was $7.25 per hour.

At that

rate, Mr. Mejia should have been paid $290.00 for 40 hours of work
per week rather than the $175.00 per week he received.

The

difference of $115.00 per week adds up to $7,475.00 for the 65week period.
For the approximately 48-week period from December 31, 2013,
to November 30, 2014, the applicable minimum wage was $8.00 per
hour.

For 40 hours of work per week, Mr. Mejia should have been

paid $320.00, for a difference of $145.00 per week.

That amounts

to an underpayment of $6,960.00.
b.

Unpaid Overtime

For the approximately 65-week period from October 1, 2012, to
December 30, 2013, the overtime rate was $10.875 per hour.

Mr.

Mejia worked 14 hours of overtime each week, for a total of $152.25
per week.

He is therefore owed $9,896.25 in overtime for that

period (i.e., overtime rate of $10.875 x 14 hours/week x 65 weeks).
The overtime rate then rose to $12.00 per hour.

For the

approximately 48-week period up until November 30, 2014, Mr. Mejia
31

is

owed

$8,064.00

(i.e.,

overtime

rate

of

$12.00/hour

x

14

hours/week x 48 weeks).
c.

Unpaid Spread-of-Hours Premium

Once per week, Mr. Mejia worked a shift longer than ten hours;
he did not receive a spread-of-hours premium for those days,
however.

(Mejia Decl., ¶ 11).

For the period prior to December

31, 2013, he is owed $471.25 (i.e., spread-of-hours premium of
$7.25/day x 1 day/week x 65 weeks).

For the period from December

31, 2013, to November 30, 2014, he is owed $384.00 (i.e., spreadof-hours premium of $8.00/day x 1 day/week x 48 weeks).
d.

Liquidated Damages and Statutory Penalties

Mr. Mejia is entitled to liquidated damages in the amount of
$33,250.50 (i.e., $7,475.00 + $6,960.00 + $9,896.25 + $8,064.00 +
$471.25 + $384.00).

Because he worked for the defendants for more

than 25 weeks, the statutory penalty for the failure to provide
wage statements is $2,500.00.
12.

Mr. Atenco

Mr. Atenco worked for the defendants from August 2009 until
February 2013.

(Atenco Decl., ¶ 4).

He worked 59 hours per week,

including two shifts of longer than 10 hours.
7-8).

(Atenco Decl., ¶¶

He was paid $5.00 per hour for 35 hours of work each week.

(Atenco Decl., ¶ 8).
spread-of-hours

He seeks unpaid minimum wages, overtime, and

premiums,

as

well
32

as

liquidated

damages

and

statutory penalties.
a.

Unpaid Minimum Wage

For the 88-week period from August 1, 2009, to April 8, 2011,19
the minimum wage was $7.25 per hour.

At that rate, Mr. Mejia was

entitled to $290.00 for 40 hours of work per week, rather than the
$175.00 he received.

This amounts to a shortfall of $10,120.00

(i.e., ($290.00/week - $175.00/week) x 88 weeks).

For the 99-week

period from April 9, 2011, until February 28, 2013,20 the minimum
wage was also $7.25 per hour.

Again, Mr. Atesco was underpaid by

$115.00 per week, for a total of $11,385.00.
b.

Unpaid Overtime

For the period from August 1, 2009, to April 8, 2011, the
overtime wage was $10.875 per hour.

Mr. Mejia worked 19 hours of

overtime per week, resulting in an underpayment of $18,183.00
(i.e., overtime rate of $10.875/hour x 19 hours/week x 88 weeks).
For the period from April 9, 2011, until February 28, 2013, Mr.
Mejia

was

underpaid

by

$20,455.88

(i.e.,

$10.875/hour

x

19

hours/week x 99 weeks).

The plaintiffs miscalculate this period as 190 weeks.
(Atenco Calc.).
19

The plaintiffs
(Atenco Calc.).
20

miscalculate
33

this

period

as

89

weeks.

c.

Unpaid Spread-of-Hours Premium

For the period before April 9, 2011, Mr. Mejia is entitled to
an additional $14.50 per week in spread-of-hours premium pay.
That amounts to $1,276.00.

For the period from April 9, 2011, to

February 28, 2013, he is similarly entitled to an additional $14.50
per week, for a total of $1,435.50.
d.

Liquidated Damages and Statutory Penalties

Mr. Mejia is entitled to liquidated damages in the amount of
$7,394.75 (i.e., 25% of ($10,120.00 + $18,183.00 + $1,276.00) for
the period from August 1, 2009, to April 8, 2011.

For the

remainder of his tenure at Pranna Restaarant, his liquidated
damages

total

$1,435.50).

$33,276.38

(i.e.,

$11,385.00

+

$20,455.88

+

Because he worked for the defendants for at least 25

weeks, the statutory penalty for the failure to provide wage
statements is $2,500.00.
D.

Attorneys’ Fees and Costs
1.

Legal Standard

The FLSA and the NYLL provide for an award of reasonable
attorneys’ fees and costs to a prevailing plaintiff in a wage-andhour action.

29 U.S.C. § 216(b); NYLL § 198.

“Courts ordinarily

award a lodestar fee, which is the product of the prevailing market
rate for lawyers in the district and the number of hours a
reasonable attorney would spend to litigate the case effectively.”
34

Tackie v. Keff Enterprises LLC, No. 14 Civ. 2074, 2014 WL 4626229,
at *6 (S.D.N.Y. Sept. 16, 2014).

An

award

of

attorneys’

fees

should be based on the court’s determination of a “presumptively
reasonable fee.” Sandoval v. Materia Bros. Inc., No. 11 Civ. 4250,
2013 WL 1767748, at *3 (S.D.N.Y. March 5, 2013) (quoting Arbor
Hill Concerned Citizens Neighborhood Association v. County of
Albany, 522 F.3d 182, 189 (2d Cir. 2008)).

This fee is calculated

by multiplying “a reasonable hourly rate by the reasonable number
of hours expended on the case.”

Id.; see Millea v. Metro–North

Railroad Co., 658 F.3d 154, 166 (2d Cir. 2011).
Determining

a

reasonable

hourly

rate

involves

“a

case-

specific inquiry into the prevailing market rates for counsel of
similar experience and skill to the fee applicant’s counsel” which
may include “judicial notice of the rates awarded in prior cases
and the court’s own familiarity with the rates prevailing in the
district.”
2005).

Farbotko v. Clinton County, 433 F.3d 204, 209 (2d Cir.

The hourly rates must be “in line with those [rates]

prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.”

Reiter

v. MTA New York City Transit Authority, 457 F.3d 224, 232 (2d Cir.
2006) (alteration in original) (quoting Blum v. Stenson, 465 U.S.
886, 896 n.11 (1984)); see also Simmons v. New York City Transit
Authority,

575

F.3d

170,

174

(2d
35

Cir.

2009).

The

relevant

community in this case is the Southern District of New York.

Arbor

Hill, 522 F.3d at 190.
After establishing the appropriate hourly rate, a court must
determine how much time was reasonably expended in order to arrive
at the presumptively reasonable fee.

“The relevant issue [] is

not whether hindsight vindicates an attorney’s time expenditures,
but whether, at the time the work was performed, a reasonable
attorney would have engaged in similar time expenditures.”

Grant

v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992); accord Mugavero v.
Arms Acres, Inc., No. 03 Civ. 5724, 2010 WL 451045, at *6 (S.D.N.Y.
Feb.

9,

2010).

A

court

should

exclude

from

the

lodestar

calculation “excessive, redundant or otherwise unnecessary hours.”
Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999);
accord Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997)
(“If the district court concludes that any expenditure of time was
unreasonable, it should exclude these hours from the lodestar
calculation.”).

It can do so by making specific deductions or “by

making an across-the-board reduction in the amount of hours.”
Luciano, 109 F.3d at 117; accord Vorcom Internet Services, Inc. v.
L&H Engineering & Design LLC, No. 12 Civ. 2049, 2014 WL 116130, at
*5 (S.D.N.Y. Jan. 13, 2014).
2.

Reasonable Hourly Rate

The plaintiffs seek fees for five timekeepers: attorneys
36

Steven Seltzer, Jeffrey Risman, and Paul Sagar, and paralegals
Sammi Li and Patrick Lee.
Mr. Seltzer is currently a shareholder of the Seltzer Law
Group, P.C., “a firm that practices heavily in the areas of
employment law and wage and hour litigation,” and was previously
a shareholder in Yuen Roccanova Seltzer & Sverd P.C.
Decl., ¶¶ 42, 46).

He graduated from law school in 1999 and has

been a member of the New York State bar since 2000.
Decl., ¶ 44).

(Seltzer

(Seltzer

He seeks approval of an hourly rate of $400.00.

(Seltzer Decl., ¶ 50).
Mr. Risman is a partner and principal of Risman & Risman,
P.C., a firm that focuses on “plaintiff-side employment law and
civil rights litigation.”

(Seltzer Decl., ¶ 32).

He graduated

from law school in 2007 and was admitted to practice in New York
in 2008.

(Seltzer Decl., ¶¶ 34-35).

law exclusively since 2011.

He has practiced employment

(Seltzer Decl., ¶ 33).

approval of an hourly rate of $350.00.

He seeks

(Seltzer Decl., ¶ 41).

Mr. Sagar was admitted to practice in New York in 2011.
(Seltzer Decl., ¶ 51).

From 2012 to 2016, he assisted Mr. Seltzer

“on a variety of employment and wage and hour matters,” including
this one.

(Seltzer Decl., ¶¶ 51-52).

hourly rate of $250.00.

He seeks approval of an

(Seltzer Decl., ¶ 53).

Ms. Li recently graduated from law school, and has been
37

employed as a paralegal since 2010.
of $100.00.

(Seltzer Decl., ¶ 54).

paralegal services in $75.00.

She charges an hourly rate
Mr. Lee’s hourly rate for

(Seltzer Decl., ¶ 54).

Each of these rates is within the realm of reasonableness for
attorneys and non-attorney professionals in this district.

See,

e.g., Granados, 2016 WL 7410725, at *7 (recommending approval of
hourly rates of $425.00 for partner and $275.00 for associate in
wage-and-hour litigation); Soto v. Armstrong Realty Management
Corp., No. 15 Civ. 9283, 2016 WL 7396687, at *5 (S.D.N.Y. Dec. 21,
2016) (recommending approval of hourly rates of $450.00 for partner
and $125.00 for paralegal).
3.

Reasonable Time Expenditure

Plaintiffs’ attorneys seek a significant award of attorneys’
fees: their records reflect work resulting in $122,240.00 in fees
(Seltzer Decl., ¶ 57; Time Records from Risman & Risman, Yuan
Roccanova Seltzer P.C., and The Seltzer Law Group, P.C. (“Time
Records”), attached as Exh. U to Seltzer Decl.).

While this might

seem exorbitant for a “typical” default where the defendants failed
to

appear

defendants

at

all,

appeared

this
and

is

not

such

participated

a

situation.

in

this

Here,

case

the

through

discovery until defendants’ counsel withdrew in May 2016, which
necessitated motions for default and, ultimately, this inquest.
Nevertheless, a review of the records reveals some excessive time
38

expenditures and unexplained duplication of work.
For

example,

the

drafting

of

attorneys over 40 hours of time.

the

complaint

cost

three

(Time Records at 1-2, 4-6).21

Each of the three depositions the plaintiffs took was attended by
two

of

the

plaintiffs’

attorneys

--

and

two

of

the

three

depositions were attended by both of the partners working on the
case, Mr. Risman and Mr. Seltzer.

(Time Records at 2, 10-11).

Mr. Risman and Mr. Seltzer collectively spent over 60 hours on the
inquest submissions.

(Time Records at 3, 13-14).

Curiously, they

each worked on the inquest on exactly the same seven (largely nonconsecutive) days and

spent exactly

the same

amount of time

drafting those submissions on five of those seven days: November
30, 2016 (3.6 hours); December 5, 2016 (3.8 hours); January 26,
2017 (2.9 hours); January 27, 2017 (4.3 hours); and February 1,
2017 (5.1 hours).

(Time Records at 3, 13-14).

On February 2,

2017, the two together worked for 16 hours on the inquest papers;
on February 3, 2017, it was 12.5 hours, with Mr. Seltzer edging
out Mr. Risman by seven-tenths of an hour over this two-day period.
(Time Records at 3, 14).

Notwithstanding this investment of time,

the damages calculations include more than a few errors.

In these

Because the Time Records are not paginated, I use the page
numbers assigned by the Court’s Case Management/Electronic Case
Filing system.
39
21

circumstances, I recommend reducing the requested fees by 15%, for
a total of $103,904.00 (i.e., 85% of $122,240.00).
4.

Costs

The plaintiffs seek recovery of $3,845.87 for filing fees,
service

of

process,

printing expenses.

translation

services,

transcripts,

and

(Seltzer Decl., ¶ 60; Invoices from Risman &

Risman, Yuen Roccanova Seltzer, P.C., and The Seltzer Law Group,
P.C., attached as Exh. V to Seltzer Decl.).
all compensable.

These expenses are

See, e.g., Siegel v. Bloomberg L.P., No. 13 Civ.

1351, 2016 WL 1211849, at *15 (S.D.N.Y. March 22, 2016); Marquez
v. Erenler, Inc., No. 12 Civ. 8580, 2014 WL 5847441, at *4
(S.D.N.Y. Nov. 10, 2014).
Conclusion
For
plaintiff

the

foregoing

damages

and

reasons,
statutory

I

recommend

penalties

amounts:
1.

Joel Villar -- $11,147.48

2.

Primitivo Martinez -- $7,945.00

3.

Juan Carlos Flores -- $6,764.69

4.

Edwin Sanchez -- $17,848.50

5.

Rene Peralta -- $88,301.50

6.

Edgar Cazarez -- $53,150.00

7.

Lisa Brown -- $6,790.00
40

in

awarding
the

each

following