Morales et al v. MW Bronx, Inc. et al

Filing 39

OPINION: In sum, plaintiff Martinez is entitled to $813.87 in compensatory damages and $813.87 in liquidated damages under the NYLL and FLSA, $155.33 in prejudgment interest under the NYLL, and post-judgment interest. Plaintiff Morales is entitled to $725.00 in compensatory damages and $725.00 in liquidated damages under the NYLL and FLSA, $137.65 in prejudgment interest, and post-judgment interest. While Martinez and Morales are entitled to attorney's fees and costs, the Court reserves judgment on those amounts until the Court receives briefing from plaintiffs' counsel on that matter. (As further set forth in this Opinion.) (Signed by Judge Thomas P. Griesa on 1/26/2017) (cf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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LISSA MORALES, et al.,
No. 15-cv-6296 (TPG)

Plaintiffs,

OPINION

-againstMW BRONX, INC., et al.,
Defendants.

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Plaintiffs Lissa Morales, Danny Jimenez-Corcione, and Thomas R.
Martinez commenced this action on August 11, 2015 against defendants MW
Bronx, Inc., et al., alleging, among other things, that defendants were in
violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and
the New York Labor Law, NYLL § 650 et seq. ("NYLL"). Specifically, plaintiffs
seek to recover unpaid minimum wages, overtime premium wages, liquidated
damages, and statutory penalties pursuant to the FLSA and NYLL.
On March 1, 2016, plaintiffs filed a motion for default judgment because
defendants failed to answer or otherwise appear in this case. The Court issued
an opinion on August 1, 2016, which ruled, among other things, that: (1)
plaintiff Jimenez-Corcione is owed unpaid minimum wages, overtime wages,
spread-of-hours pay, liquidated damages, and pre- and post-judgment interest;
(2) Jiminez-Corcione is owed attorney's fees and costs; and (3) that all plaintiffs
are owed damages for defendants' failure to provide regular wage statements
and annual wage notices as required by the NYLL. ECF No. 35 at 32. The Court
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however reserved judgment on whether plaintiffs Martinez and Morales were
entitled to recover under the FLSA and NYLL until after they filed supplemental
affidavits to cure a number of factual defects in their original Motion papers.
Plaintiffs Martinez and Morales filed supplemental affidavits on August
22, 2016 pursuant to the Court's August 1, 2016 opinion. After reviewing these
corrective filings, the Court, for the reasons discussed further below, GRANTS
plaintiffs Martinez and Morales request for default judgment.

BACKGROUND
The Court assumes familiarity with the basic facts of this case, which
were discussed more fully in the Court's August 1, 2016 opinion. The Court
focuses here on the relevant facts supplied by Martinez's and Morales'
supplemental affidavits.
Plaintiff Martinez began working at a Master Wok restaurant in the
Bronx on December 5, 2014. He alleges that he was promised an hourly wage
of $8.50 but was instead paid $8.25 per hour. During his first week of work at
Master Wok, Martinez worked 40 regular hours and 16 overtime hours - 56
hours in total. In his second week of work, Martinez again worked 40 regular
hours and 16 overtime hours. In his final time at Master Wok, Martinez worked
32 regular hours. In all, Martinez worked eighteen days during the period
beginning December 5, 2014 to December 22, 2014 and a total of 144 hours, of
which 112 were regular hours and 32 were overtime hours.

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Master Wok paid Martinez for 56.5 hours of work at his regular wage,
which amounted to $466.13. Master Wok did not pay Martinez for the
remaining 55.5 hours of regular time or the 32 hours of overtime.
Plaintiff Morales began working at Master Wok on December 11, 2014.
Like her co-plaintiff Martinez, Morales alleges that she was promised an hourly
wage of $8.50 but was paid at a rate of $8.25 per hour. During Morales' first
week of work, she worked a total of 62.5 hours, which amounts to 40 hours of
regular time and 22.5 hours of overtime. In her second week, Morales worked
74 hours, or 40 hours of regular time and 34 hours of overtime. In all, Morales
worked 14 days during the period beginning December 11, 2014 to December
24, 2014. Morales worked a total of 136.5 hours, of which 80 were regular
hours and 56.5 were overtime hours.
Master Wok compensated Morales for 80 hours of regular wages and
2.75 hours of overtime wages. Master Wok did not pay Morales for the
remaining 53.75 hours of overtime wages.
DISCUSSION

In light of the Court's August 1, 2016 opinion, the only questions
remaining in this case are whether and to what extent plaintiffs Morales and
Martinez are entitled to damages and attorney's fees and costs under the FLSA
and NYLL.
I.

Liability Under the FLSA

Plaintiffs have moved for default judgment on two FLSA claims: ( 1) failure
to pay the applicable minimum wage and (2) failure to pay overtime premium
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wages. An employer is subject to liability under the FLSA if it is an "enterprise
engaged in commerce." 29 U.S.C. §§ 206(b), 207(a). The Court already ruled in
its August 1, 2016 opinion that Master Wok is subject to liability under the
FLSA. ECF No. 35 at 13.
Employers subject to the FLSA must compensate their employees at a
rate not less than the prevailing minimum wage based on a 40-hour work
week. 29 U.S.C. §§ 206(a)(1), 207. The FLSA therefore provides for recovery to
the extent that the amount of compensation received by an employee results in
a straight-time hourly rate that is less than the federal minimum wage or the
relevant state minimum wage, whichever is higher. See, e.g., Wicaksono v. XYZ

48 Corp., No. 10 Civ. 3635, 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011).
At the time of plaintiffs' employment, the federal minimum wage was
$7.25/hour. New York's minimum wage, on the other hand, was $8.00/hour.

Compare 29 U.S.C. § 206 with NYLL § 652(1). The Court therefore will apply
New York's minimum wage in determining whether and to what extent
defendants are liable to plaintiffs under the FLSA.
In addition, the FLSA provides that employees who work more than 40
hours in a single week are entitled to an overtime wage of not less than 1.5
times the regular rate. 29 U.S.C. § 207(a)(1). Defendants are therefore liable to
plaintiffs Martinez and Morales under the FLSA for overtime premium wages to
the extent that they were not paid premium wages for any overtime hours
worked.

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As discussed above, plaintiff Martinez was not paid for 55.5 hours of
regular time and 32 hours of overtime. Plaintiff Morales was not paid 53.75
hours of overtime. Thus, defendants are liable to plaintiffs Martinez and
Morales under the FLSA. The calculation of damages due to them is set forth
later in this opinion.
II.

Liability Under the NYLL
Plaintiffs have also moved for default judgment on five claims under the

NYLL: (1) failure to pay the applicable minimum wage; (2) failure to pay
overtime wages; (3) failure to pay "spread-of-hours" wages; (4) failure to provide
wage statements; and (5) failure to furnish a notice of pay rate at the time of
hiring. The Court held in its August 1, 2016 opinion that defendants are liable
to plaintiffs Martinez and Morales under the NYLL for failure to provide wage
statements and failure to furnish a notice of pay rate at the time. Furthermore,
the NYLL largely mirrors the FLSA's requirements for minimum and overtime
wages. Thus, defendants are liable under the NYLL for failure to pay minimum
wages and overtime wages to plaintiffs Martinez and Morales.
The NYLL adds further liability, however, for employers who fail to pay
"spread-of-hours" compensation. In other words, the NYLL requires employers
to pay an employee who works a "spread of hours" in excess of 10 hours an
additional hour of pay at the minimum wage rate. N.Y. Comp. Codes R. & Regs.
Tit. 12, § 142-2.4. "Spread of hours" is defined as "the length of the interval
between the beginning and end of an employee's workday," which "includes
working time plus time off for meals plus intervals off duty." Id. § 146-1.6.
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Employees are entitled to an additional hour of compensation at the applicable
minimum wage for each workday in which they exceeded the ten-hour
threshold.
In this case, plaintiff Martinez did not work more than 10 hours on any
given day and is therefore not entitled to any "spread of hours" compensation
under the NYLL. Plaintiff Morales, on the other hand, worked 10 or more hours
on 8 separate occasions and was not paid the required additional hour of
regular wages on any of those occasions. Defendants are therefore liable to
Morales for "spread of hours" compensation under the NYLL.
III.

Damages for FLSA and NYLL Violations
a. Compensatory Damages
Plaintiffs who prevail on claims brought under the FLSA are entitled to

recover unpaid minimum wages, unpaid overtime wages, and reasonable
attorney's fees and costs. 29 U.S.C. § 216(b). The NYLL similarly allows for
recovery of unpaid wages and overtime wages, adding, among other things,
that plaintiffs may recover for unpaid "spread-of-hours" compensation. NYLL §
663(1). Of course, plaintiffs may not recover twice under both the FLSA and the
NYLL for the same injury. See Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08cv-3725, 2010 WL 4159391, at *2 n.2 (S.D.N.Y. Sept. 30, 2010). Courts may,
however, exercise discretion to award plaintiffs damages under the statute that
provides the greatest amount of relief. Id. As discussed in its August 1, 2016
opinion, the Court exercises this discretion to award plaintiffs' compensatory
damages under the NYLL because it provides the greatest amount of relief.
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After reviewing plaintiff Martinez's supplemental affidavit, the Court
calculates that Martinez is entitled to $429.87 in unpaid minimum wages and
$384.00 in unpaid overtime wages. Martinez is not entitled to any "spread of
hours" damages because he states that he did "not work more than 8 hours on
any given day." Martinez Aff. at 3. Martinez is thus owed a total of $813.87 in
compensatory damages.
Morales is entitled to $645.00 in unpaid overtime wages. Morales is
further entitled to $80.00 in "spread of hours" damages so that her total
compensatory damages amount to $725.00.

b. Liquidated Damages
Plaintiffs Martinez and Morales are also entitled to liquidated damages
under the FLSA and the NYLL. Both statutes provide that plaintiffs may recover
an amount equal to 100% of their compensatory damages as liquidated
damages. However, the Court held in a prior opinion that plaintiffs should not
be entitled to overlapping liquidated damages and would choose instead to
award liquidated damages as calculated under the NYLL, since it results in a
higher damages award. ECF No. 35 at 23. Thus, Martinez is entitled to an
additional $813.87 and plaintiff Morales is entitled to an additional $725.00 in
liquidated damages under the NYLL alone.

c. Prejudgment Interest
While plaintiffs in this case are not entitled to prejudgment interest
under the FLSA, they are entitled to prejudgment interest under the NYLL.

Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999).
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Prejudgment interest under New York law accrues at a simple rate of 9% per
year. N.Y.C.P.L.R. §§ 5001, 5004; Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 90
(2d Cir. 1998). Prejudgment interest applies only to compensatory damages.
Liquidated damages are excluded from prejudgment interest calculations. See

Maldonado v. LaNuevaRampa, Inc., No. 10-cv-8195, 2012 WL 1669341, at *11
(S.D.N.Y. May 14, 2012).
New York law provides that where damages "were incurred at various
times, interest shall be computed upon each item from the date it was incurred
or upon all damages from a single reasonable intermediate date." N.Y.C.P.L.R. §
5001 (b). The date of choice is left to the district court's discretion, as is the
method of calculating the "single reasonable intermediate date." See Mar.fia,
147 F.3d at 91. Consistent with its opinion dated August 1, 2016, this Court
chooses to calculate prejudgment interest under the NYLL from a "single
reasonable intermediate date." See ECF No. 35 at 25. The Court will
accordingly use the midpoint date between each plaintiff's first and last days of
employment at Master Wok.
For plaintiff Martinez, that date is December 14, 2014 while plaintiff
Morales' midpoint date is December 18, 2014. The formula to calculate
prejudgment interest here is: (rate of interest)(principal)(number of days that
the interest has accrued). Martinez is thus entitled to $155.33 of prejudgment
interest 1 and Morales is entitled to $137.65 of prejudgment interest2.

1
2

(.09/365)(813.87)*(774 days, as of January 26, 2017) = $155.33.
(.09/365)(725)(770 days, as of January 26, 2017) = $137.65.

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d. Post-judgment Interest
Whereas prejudgment interest in this case is governed by state law, postjudgment interest here is governed by federal statute. 28 U.S.C. § 196l(a)
provides that "interest shall be allowed on any money judgment in a civil case
in a district court." In this circuit, post-judgment interest accrues
automatically by operation of law. Indeed, the Second Circuit has consistently
held that an award of post-judgment interest is mandatory. See, e.g., Schipani

v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008). The Court therefore awards postjudgment interest here.

e. Attorney's Fees and Costs
The FLSA provides that courts "shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid
by the defendant, and costs of the action." Young v. Cooper Cameron Corp., 586
F.3d 201, 208 (2d Cir. 2009) (citing 29 U .S.C. § 216(b)). The NYLL also provides
for attorney's fees to successful plaintiffs, adding further that "the total amount
of judgment shall automatically increase by fifteen percent" when a defendant
fails to timely pay any amount of the judgment rendered against it. See NYLL §
663(4).
Plaintiffs' counsel, however, has not specified the amount requested in
reasonable attorney's fees, nor has he provided the court with any information
upon which the Court might determine what constitutes a reasonable
attorney's fee in this case. The Court therefore holds that plaintiffs Martinez
and Morales are entitled to attorney's fees and costs but reserves judgment as
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to the amount of such fees and costs until after the Court receives briefing on
this matter. The Court notes that insofar as counsel later provides briefing as
to his fees and costs, those figures should relate to work performed on
plaintiffs' wage-related claims only- any work performed on claims dismissed
in this Court's August 1, 2016 opinion will not be considered in determining
fees and costs.
CONCLUSION

In sum, plaintiff Martinez is entitled to $813.87 in compensatory
damages and $813.87 in liquidated damages under the NYLL and FLSA,
$155.33 in prejudgment interest under the NYLL, and post-judgment interest.
Plaintiff Morales is entitled to $725.00 in compensatory damages and $725.00
in liquidated damages under the NYLL and FLSA, $137.65 in prejudgment
interest, and post-judgment interest. While Martinez and Morales are entitled
to attorney's fees and costs, the Court reserves judgment on those amounts
until the Court receives briefing from plaintiffs' counsel on that matter.

SO ORDERED.
Dated: January 26, 2017
New York, NY

~@a~
Thomas P. Griesa
U.S. District Judge

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