Xochimitl et al v. Pita Grill of Hell's Kitchen Inc. et al

Filing 59

ORDER for 55 Report and Recommendations. The Court has received the Report and Recommendation of Magistrate Judge Cott dated September 8, 2016. The Court has also reviewed the plaintiff's Objections dated September 26, 2016. No opposition h as been received from the defendants. (As further set forth in this Order.) For the reasons explained in the Report and Recommendation, the Court adopts the well-reasoned recommendation of the Magistrate Judge. The Clerk is directed to enter judgmen t in favor of the plaintiff and against the defendants Orfaly, Perez, and East Meets West, LLC in accordance with the Report and Recommendation. Having entered judgment, the Clerk is also directed to close this case and to close all pending motions. (Signed by Judge John G. Koeltl on 11/18/2016) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TIMOTEO XOCHIMITL,

14 Civ. 10234 (JGK)
Plaintiff,

ORDER

- against USDC SONY
DOCUM!ONT
ELECTRON!Ct\CL v i'"'LED
DOC#
.

PITA GRILL OF HELL'S KITCHEN, INC,
ET AL.,

DATE FILED:

Defendants.

7fil"/--,/"'"?i--;:

JOHN G. KOELTL, District Judge:
act~on

The plaintiff, Timoteo Xochimitl, brought this

alleging unpa~d wages in violation of the Fair Labor Standards Act
("FLSA") and the New York Labor Law ("NYLL") .

The plaintiff

successfully obtained settlements with various defendants, and
also obtained a default

judg~ent

against the defendants Bennett

Orfaly, Juan Manuel Perez, and East Meets West, LLC.

The Court

then referred this case to the Magistrate Judge for an inquest on
damages related to the default judgment.
7he Court has received the Report and Recomrcendation of
Magistrate Judge Cott dated

Septe~ber

8, 2016.

The Court has also

reviewed the plaintiff's Objections dated September 26, 2016.
opposition has been received from the defendants.

No

In view of the

Objections, the Court has reviewed de novo the portions of the
Report and Recommendation that have been objected to by the
plaintiff.

See Fed. R. Civ. P. 72(b).

The Objections are without

merit, and the Court adopts the Magistrate Judge's thorough Report
and Recommendation.

The plaintiff raises only two specific objections. First, he
objects to the Magistrate Judge's recommendation that the
plaintiff should receive liquidated damages solely under either
the FLSA or the NYLL, rather than both.

The Court accepts the

well-reasoned reco:nrner.dation of the Magistrate Judge, which states
that liquidated damages recoverable for a successful unpaid wages
claim under both the FLSA and the NYLL should be limited to the
statute that provides the greatest relief.
RV Transp., Inc., No. 15 CIV. 0527

See also Castillo v.

(LGS), 2016 WL 1417848, at *3

(S.D.N.Y. Apr. 11, 2016); Garcia v. JonJon Deli Grocery Corp., No.
13 CIV. 8835

(A~),

2015 WL 4940107, at *6 (S.D.N.Y. Aug. 11,

2015).
Second, the plaintiff objects to the recommendation that the
attorney fee award be based on an hourly rate for attorney

~ichael

Faillace of $400 rather than $425 per hour, and an hourly rate for
attorney Joshua Androphy of $300 rather than $400.

For the

reasons explained in the Report and Recommendation, the Court
adopts the well-reasoned recommendation of the Magistrate Judge.

2

The Clerk is directed to enter judgment in favor o= the
plaintiff and against the defendants Orfaly, Perez, and East Meets
West, LLC in accordance with the Report and Recommendation.
Having entered judgment, the Clerk is also directed to close
this case and to close all pending motions.
SO ORDERED.
New York, New York
Dated:
November 18, 2016

John G. Koeltl
ted States District Judge

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