Soto v. Armstrong Realty Management Corp. et al

Filing 33

REPORT AND RECOMMENDATION. I recommend entering judgment against the defendants jointly and severally and awarding the plaintiff $66,946.50 in unpaid wages, $52,689.38 in liquidated damages, and $22,274.21 in costs and fees. I also rec ommend awarding prejudgment interest of $28,297.50 on the unpaid wages, plus $16.50 for every day after January 7, 2017. (Objections to R&R due by 1/4/2017). (Signed by Magistrate Judge James C. Francis on 12/21/2016) Copies transmitted this date. (rjm).

(Complaint (“Compl.”), ¶¶ 20, 25; Tr. at 4-7). 1

The plaintiff

provided building maintenance services, including mopping hallways
and floors, removing debris and garbage, clearing snow, making
repairs, and cleaning the lobby and elevators.
at 10).

(Compl., ¶ 26; Tr.

He would travel between five different buildings Monday

through Friday and would work at the corporate office on Sundays.
(Compl., ¶¶ 19, 22; Tr. at 11-13).
for the defendant in October 2014.

The plaintiff ceased working
(Compl., ¶ 28; Tr. at 5).

Although his paychecks reflected that he was being paid $14.50
per hour, Mr. Soto was not paid for every hour he worked.
5-6).

(Tr. at

The plaintiff worked six days a week: twice per week, he

would typically work from 10:00 a.m. to 8:30 p.m. (Tr. at 8-9),
three times per week, he would typically work from 10:00 a.m. to
5:00 p.m. or 6:00 p.m. (Tr. at 9-10), and on Sundays he would
usually work from 3:00 p.m. to 8:00 p.m. (Compl., ¶ 21; Tr. at 8).
However, he only worked forty-six hours per week, on average. 2
(Compl., ¶ 23; Tr. at 8).

During the relevant dates, Mr. Soto was

usually paid $435 per week, and he was paid bi-weekly, except in
2014, when he was paid monthly.

1

(Exh. 1). 3

In June and September,

“Tr.” refers to the transcript of the inquest.

2

At $14.50 per hour, Mr. Soto should thus have been paid
$710.50 per week -- forty hours for regular time, and six hours at
the overtime rate.
3

The plaintiff submitted two damages exhibits –- one during
the inquest, and the other in his October 5, 2016 supplemental
2

he would take a week’s vacation.

(Tr. at 31).

Although Mr. Soto

was given a “paid” vacation, he was required to find and pay a
replacement.

(Compl., ¶ 24; Tr. at 18).

The Complaint was filed on November 24, 2015. Both defendants
were served on December 7, 2015.

(Affidavit of Service on Mark

Massey dated December 10, 2015; Affidavit of Service on Armstrong
Realty Management Corp. dated December 10, 2015).
requested

default

against

the

defendants

on

March

(Request to Enter Default dated March 29, 2016).
entered

default

against

the

defendants

referred the action to me for inquest.

on

The plaintiff

June

29,

2016.

Judge Nathan
1,

2016,

and

(Order dated June 1, 2016).

Discussion
A.

Standard

“It is an ‘ancient common law axiom’ that a defendant who
defaults thereby admits all ‘well-pleaded’ factual allegations
contained in the complaint.”

City of New York v. Mickalis Pawn

Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (quoting Vermont Teddy

submission.
Generally, the charts are substantially the same,
except that the October 5 submission adds interest to claims
covered by the FLSA. Additionally, the newer submission contains
no amounts in the FLSA damages column, instead placing all the
damages in the NYLL damages column.
However, both charts contain a substantive calculation error.
The plaintiff was paid bi-weekly until 2014, when he was paid
monthly, which neither chart takes fully into account. Indeed,
they reflect the underpayments in 2014 as being much higher than
they actually were (compare totals for 2013 and 2014).
3

Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)).
However,

a

court

is

“required

to

determine

whether

the

[plaintiff’s] allegations establish [the defendant’s] liability as
a matter of law.”

Hood v. Ascent Medical Corp., No. 13 Civ. 628,

2016 WL 1366920, at *15 (S.D.N.Y. March 3, 2016) (alterations in
original) (quoting Mickalis Pawn Shop, 645 F.3d at 137).
“Further,
pleaded

although

allegations

liability,’

it

in

does

a

‘default

a

complaint

not

reach

judgment

the

entered

establishes
issue

of

a

on

well-

defendant’s

damages.”

Id.

(citations omitted) (quoting Bambu Sales, Inc. v. Ozak Trading,
Inc., 58 F.3d 849, 854 (2d Cir. 1995)).

A plaintiff is therefore

required to prove, with sufficient evidence, his claim for damages
with reasonable certainty.
Aurige,

S.a.r.l.,

No.

12

(S.D.N.Y. April 18, 2013).
plaintiff

fails

to

RGI Brands LLC v. Cognac Brisset–
Civ.

1369,

2013

WL

1668206,

at

*6

“Where, on a damages inquest, a

demonstrate

its

damages

to

a

reasonable

certainty, the court should decline to award any damages, even
though liability has been established through default.”

Lenard v.

Design Studio, 889 F. Supp. 2d 518, 527 (S.D.N.Y. 2012).
B.

Liability

The plaintiff’s complaint alleges claims for unpaid regular
hours, unpaid overtime, and unpaid vacation time.
1.

Unpaid Hours

The thrust of the plaintiff’s first contention is that while

4

he was paid $14.50 per hour, the defendants paid him for only
thirty hours instead of the forty-six that he worked on average.
(Compl., ¶¶ 20, 23; Tr. at 8; Exh. 1). 4

Thus, Mr. Soto seeks to

recover pay for ten hours per week of regular time -- also known
as

“straight

“overtime”).

time”

or

“gap

time”

(as

distinguished

from

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.

Contractors,

27,

Inc.,

2015)
No.

09

(NYLL
CV

§

198(3));

4812,

2015

WL

Hernandez

v.

NJK

1966355,

at

*42

(E.D.N.Y. May 1, 2015) (NYLL §§ 191(3), 198(3)); Santillan v.
Henoa, 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

4

Unless otherwise indicated, exhibit designations refer to
exhibits received at the inquest.
5

Myers v. Hertz Corp., 624 F.3d 537, 545 n.1 (2d Cir. 2010) (“New
York courts have 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, the plaintiff and the defendants “entered into an oral
contract with Corporate Defendant whereby Plaintiff would serve as
a porter in various buildings located in New York City, New York
and work for the Corporate Defendant in exchange for a specific
hourly wage of $14.50 an hour.”
5).

(Compl., ¶ 20; see also Tr. at

The plaintiff’s hourly rate never changed, and he worked an

average of forty-six hours per week.

(Compl., ¶ 23; Tr. at 5, 8).

The plaintiff satisfactorily performed services in line with the
agreement.

(Compl., ¶¶ 26, 53; Tr. at 9-10, 12-17).

Thus, the

plaintiff should have been paid $580 per week for straight time
alone.

Yet, the plaintiff was usually only paid $435 per week,

and -- at a rate of $14.50 -- was thus only paid for thirty hours

6

per week.

(Exh. 1).

Therefore, the plaintiff has pled a viable

claim for uncompensated straight time under the NYLL. 5
2.

Overtime

To establish an FLSA overtime claim, the plaintiff must show
that: “(1) the defendant is an enterprise participating in commerce
or the production of goods for the purpose of commerce; (2) the
plaintiff is an ‘employee’ within the meaning of the FLSA; and (3)
the employment relationship is not exempted from the FLSA.” Jiaren
Wei v. Lingtou Zhengs Corp., No. 13 CV 5164, 2015 WL 739943, at *5
(E.D.N.Y. Feb. 20, 2005).

According to the FLSA, a defendant is

an “[e]nterprise engaged in commerce or in the production of goods
for commerce” if it
has employees engaged in commerce or in the production
of goods for commerce, or that has employees handling,
selling, or otherwise working on goods or materials that
have been moved in or produced for commerce by any
person; and . . . whose annual gross volume of sales
made or business done is not less than $500,000.
29 U.S.C. § 203(s)(1)(A).

The plaintiff has properly alleged that

he was an employee within the meaning of the FLSA and that
Armstrong Realty is a covered enterprise.

(Compl., ¶¶ 5, 14, 27).

“To recover under the NYLL, plaintiff must prove that he is
an ‘employee’ and that defendant is an ‘employer,’ as each term is
defined by the statute.”

Coulibaly v. Millennium Super Car Wash,

5

There is thus no need to determine the viability of the
plaintiff’s common law claims.
7

Inc., No. 12 CV 4760, 2013 WL 6021668, at *7 (E.D.N.Y. Nov. 13,
2013).

“An employee is defined as ‘any individual employed or

permitted to work by an employer in any occupation . . . .’”
(quoting NYLL § 651(5)).

Id.

The plaintiff has properly alleged that

he is an employee of the defendants under the NYLL.

(Compl., ¶¶

5, 22, 29, 37).
Both the FLSA and 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.

29 U.S.C. § 207(a)(1);

12 N.Y.C.R.R. § 142–2.2; Coulibaly, 2013 WL 6021668, at *6.
plaintiff worked six overtime hours per week.
at 8; Exh. 1).

The

(Compl., ¶ 23; Tr.

The plaintiff has established that he was not paid

for any hours in excess of forty hours, as he was only paid for
thirty hours per week.

(Compl., ¶ 27; Tr. at 8; Exh. 1).

Thus,

the plaintiff has a viable overtime claim under the FLSA and the
NYLL.
3.

Vacation

The complaint states, “Plaintiff received paid vacations,
however Plaintiff was instructed by [Mr. Massey] to find, and pay
his replacement himself while he was on vacation.”
24).

(Compl., ¶

The following colloquy took place at the inquest:
Q: When you took one week off, were you paid for that
week?
A: No. No. Yes, I was paid for the week, but I had to
pay another guy to take my place.

8

Q: I see, so it was a condition of your vacation that
you had to find a substitute –
A: Yes.
Q: -- whom you had to pay yourself –
A: I had to pay him out of my pocket. So really what I
got paid for my vacation went to pay for another guy.
So I really wasn’t getting paid for vacation.
Tr. at 17-18.

The plaintiff has not established that he had a

prior agreement with the defendants for paid vacation; rather, he
has shown, at most, an agreement that he would pay a replacement
from the wages he received while on vacation.

Therefore, the

defendants are not liable to the plaintiff for unpaid vacation.
4.

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).
2015,

properly

pled

The Complaint, filed on November 24,

willfulness

(Compl.,

¶¶

42-49),

so

the

plaintiff may recover under the FLSA for violations occurring after
November 23, 2012, and under the NYLL for violations occurring
after November 23, 2009.
5.

Joint Liability of the Defendants

“To be liable under the FLSA, one must be an ‘employer,’ which
the statute broadly defines as ‘any person acting directly or

9

indirectly in the interest of an employer in relation to an
employee.’”

Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 342

(S.D.N.Y. 2005) (quoting 29 U.S.C. § 203(d)).

“The definition of

‘employer’ is similarly expansive under New York law, encompassing
any “‘person employing any [employee].’”
original)

(quoting

NYLL

§

2(6)).

“The

Id. (alteration in
central

inquiry

in

determining whether one qualifies as an ‘employer’ under these
generous definitions 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.’”

Id.

(alteration in original) (quoting Herman v. RSR Security Services
Ltd., 172 F.3d 132, 139 (2d Cir. 1999)). Factors include “‘whether
the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records’ though no single
factor is dispositive.”

Id. (quoting Herman, 172 F.3d at 139).

The Complaint properly alleges that both defendants were employers
of the plaintiff (Compl., ¶¶ 29-37), and thus the defendants are
jointly and severally liable.
C.

Damages
1.

Unpaid Wages

The plaintiff has shown that from November 24, 2009, to
September 27, 2014, he was paid for only thirty hours per week,

10

even though he worked an average of forty-six.
1).

(Tr. at 6, 8; Exh.

Therefore, I recommend that he be awarded ten hours of regular

time per week, or $145 per week, and six hours of overtime at one
and one half times his rate ($21.75) per week, or $130.50 per week,
for a total of $275.50 per week.

The plaintiff was underpaid for

243 weeks 6 and is thus owed $66,946.50 in unpaid wages.
2.

Liquidated Damages

Although the FLSA provides for liquidated damages for unpaid
overtime, see 29 U.S.C. § 216(b), the plaintiff requests liquidated
damages solely under the NYLL (Exh. 1 (Oct. 5, 2016)).

Under the

NYLL, an employee may recover 25% liquidated damages for any NYLL
wage claim accruing on or before April 8, 2011, and 100% liquidated
damages thereafter, “unless the employer proves a good faith basis
for believing that its underpayment of wages was in compliance
with the law.”

Xochimitl v. Pita Grill of Hell’s Kitchen, Inc.,

No. 14 Civ. 10234, 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016)
(quoting NYLL § 198(1-a)); see Berrezueta v. Royal Crown Pastry
Shop, Inc., No. 12 CV 4380, 2013 WL 6579799, at *5 (E.D.N.Y. Dec.
16, 2013).
faith.

A defaulting defendant cannot make a showing of good

Xochimitl, 2016 WL 4704917, at *18; Berrezueta, 2013 WL

6579799, at *5.

For sixty-nine weeks (for paydays from November

6

The relevant period is 253 weeks. (Exh. 1). However, the
plaintiff took two weeks’ vacation per year (Tr. at 31), and thus
worked a total of 243 weeks.
11

28, 2009, to April 2, 2011, excluding unpaid vacation weeks),
liquidated damages are twenty-five percent.
weeks, liquidated damages are 100%.

For the remaining 174

Thus, I recommend awarding

liquidated damages in the amount of $52,689.38. 7
3.
The

Interest

liquidated

plaintiff
damages

may
for

be
NYLL

awarded
claims.

interest
See

in

addition

Xochimitl,

4704917, at *18; Berrezueta, 2013 WL 6579799, at *6.

2016

to
WL

When damages

accrue over a period of time, interest may be “computed upon each
item from the date it was incurred or upon all of the damages from
a

single

reasonable

intermediate

Hernandez, 2013 WL 5129815, at *7.
percent per year.
*7.

date.”

NYCPLR

§

5001(b);

The statutory rate is nine

NYCPLR § 5004; Hernandez, 2013 WL 5129815, at

“Simple prejudgment interest is calculated by multiplying the

principal by the interest rate by the time period -- from a
singular, midpoint date -- up until and including the date judgment
is entered.”

Maldonado v. La Nueva Rampa, Inc., No. 10 Civ. 8195,

2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012).

The middle pay

period for the relevant dates is April 28, 2012, and the principal
is $66,946.50.

7
8

Interest accrues at $16.50 per day. 8

Thus, on

(69 weeks x $275.50 x 0.25) + (174 weeks x $275.50).
(0.0002465 (daily interest rate) x $66,946.50).

12

January

7,

2017,

the

total

prejudgment

interest

will

be

$28,297.50. 9
D.

Attorneys’ Fees and Costs

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

“The plaintiff must produce

‘contemporaneous time records indicating, for each attorney, the
date, the hours expended, and the nature of the work done.’”

Id.

(quoting Scott v. City of New York, 626 F.3d 130, 133–34 (2d Cir.
2010)).
The plaintiff seeks a rate of $450 per hour for attorney
Robert Wisniewski -- the lead attorney and primary timekeeper -and $125 for paralegal work.

(Declaration of Robert Wisniewski

dated Oct. 5, 2016 (“Wisniewski Decl.”), ¶ 8).

Mr. Wisniewski is

an experienced litigator (Wisniewski Decl., ¶¶ 4-7), and $450 per
hour

is

a

reasonable

rate

in

this

case,

see

Gonzalez

Scalinatella, Inc., 112 F. Supp. 3d 5, 28 (S.D.N.Y. 2015).

9

(1,715 days x $16.50).
13

v.

Norma

Lopez, a paralegal, and Dorothy Jankowska, a legal assistant -are likewise experienced, and I recommend that they be awarded
$125 per hour.

See Siegel v. Bloomberg L.P., No. 13 Civ. 1351,

2016 WL 1211849, at *7 ($125.00 per hour); Mills v. Capital One,
North America, No. 14 Civ. 1937, 2015 WL 5730008, at *12 (S.D.N.Y.
Sept.

30,

2015)

($125.00

per

hour);

Guardado

v.

Precision

Financial, Inc., No. 04 CV 3309, 2008 WL 822105, at *6 (E.D.N.Y.
March

25,

2008)

(applying

paralegal

rate

assistant who performed paralegal work).

for

administrative

The hours expended --

64.84 -- are not unreasonable and are recorded in substantial
detail

(Timesheets,

attached

as

Exh.

2

to

Wisniewski

Decl.;

Supplemental Timesheets, attached as Exh. 3 to Wisniewski Decl.),
and

thus

I

recommend

awarding

$21,085.50,

the

full

amount

requested.
A successful plaintiff in a wage-and-hour action is entitled
to recover certain costs.

Jimenez v. KLB Foods, Inc., No. 12 Civ.

6796, 2015 WL 3947273, at *4 (S.D.N.Y. June 29, 2015).

Here, the

costs for mailing, court reporting, filing fees, copies, witness
fees, and service, which total $1,188.71, are reasonable.

See

Siegel, 2016 WL 1211849, at *15 (fees for service reasonable);
Reiseck v. Universal Communications of Miami, Inc., No. 06 Civ.
777, 2014 WL 5374684, at *8 (S.D.N.Y. Sept. 4, 2014) (expenses for
travel,

mailing,

copies,

witness

14

fees,

and

court

reporting