Sanchez v. Jyp Foods Inc., et al

Filing 86

OPINION AND ORDER re: 78 MOTION to Strike Document No. 14 MOTION for Default Judgment as to Defendants filed by Hyun Jun Kim, Jeffrey Santiago, Emad Newaz, Levon J. Augustin, Mahamaduo Sillah, Marco Antonio Sanchez, Aug ustine Uzowuvu. For the foregoing reasons, plaintiffs' motion to strike defendants' answer and for default judgment against defendants is granted. Having conducted an inquest, the Court awards plaintiffs damages in the amount of $1 02,299.92, attorneys' fees and costs in the amount of $15,075, and post-judgment interest on all sums awarded against defendants. Specifically, the $102,299.92 in damages should be distributed as follows: Marco Antonio Sanchez is ent itled to $20,210.13 in unpaid wages, an equal amount in liquidated damages, and $5,000 in statutory damages; Levon Augustin is entitled to $4,280.19 in unpaid wages, an equal amount in liquidated damages, and $5,000 in statutory damages; Ewad Newaz is entitled to $315.94 in unpaid wages, an equal amount in liquidated damages, and $1,800 in statutory damages; Jeffrey Santiago is entitled to $1,401.56 in unpaid wages, an equal amount in liquidated damages, an d $6,900 in statutory damages; Mahamaduo Sillah is entitled to $1,431.13 in unpaid wages, an equal amount in liquidated damages, and $9,900 in statutory damages; Hyun Jun Kim is entitled to $401.63 in unpaid wages, an equal amo unt in liquidated damages, and $7,250 in statutory damages; and Augustine Uzowuvu is entitled to $684.38 in unpaid wages, an equal amount in liquidated damages, and $9,000 in statutory damages. The Clerk is respectfully directed to close Docket No. 78 and mark it as granted, and to enter judgment for the plaintiffs consistent with this Opinion. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 9/20/2018) (ne) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
MARCO ANTONIO SANCHEZ, individually :
and on behalf of similarly situated persons, :
:
Plaintiffs,
:
:
-against:
:
JYP FOODS INC., d/b/a KRISTALBELLI, :
and JOON KIM,
:
:
Defendants.
:
---------------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
9/20/2018
DATE FILED: ______________

OPINION AND ORDER
16-CV-4472 (JLC)

JAMES L. COTT, United States Magistrate Judge.
Plaintiff Marco Antonio Sanchez worked as a busboy and bar-back at
Kristalbelli restaurant in Manhattan from April 2012 to July 2015. In June 2016,
Sanchez brought this collective/class action against defendants Jyp Foods Inc.,
doing business as Kristalbelli, and its chief executive officer Joon Kim, alleging
violations of the Fair Labor Standards Act and New York Labor Law, for failure to
pay minimum wages and overtime compensation, as well as provide wage
statements and wage notices. Six others opted into the lawsuit in 2017. Although
defendants initially participated in this case by answering the complaint and
attending a settlement conference (reaching a settlement in principle), neither
defendant ever consummated the settlement or otherwise communicated with the
Court after May 2017. In light of defendants’ disappearance, plaintiffs now move to
strike the answer and for default judgment in the amount of $129,582.27
($105,186.23 in damages and $24,396.04 in attorneys’ fees and costs).
1

For the reasons that follow, the Court grants plaintiffs’ motion to strike
defendants’ answer and for a default judgment. However, some evidence in
plaintiffs’ submissions related to the damages they seek is illegible and their
calculations are often flawed. Consequently, the amount of damages, including
attorneys’ fees and costs, that plaintiffs are entitled to is $12,207.35 less than that
sought in their submissions. As explained below, the Court concludes that plaintiffs
are entitled to $117,374.92 ($102,299.92 in damages and $15,075 in attorneys’ fees
and costs). 1
I.

Procedural History

On June 14, 2016, Sanchez filed his collective/class action complaint against
defendants. Complaint (“Compl.”), Dkt. No. 1. On August 12, 2016, defendants
filed their answer. Dkt. No. 14. On November 28, 2016, Sanchez moved for
conditional certification of his collective action and for approval of a collective action
notice. Dkt. Nos. 23–26. Sanchez’s motion for conditional certification was granted
on January 10, 2017, and on January 18, 2017, the proposed collective action notice
was approved for mailing to potential plaintiffs. Dkt. Nos. 33, 38. In March and
April 2017, six opt-in plaintiffs—Levon J. Augustin (“Augustin”), Emad Newaz
(“Newaz”), Jeffrey Santiago (“Santiago”), Mahamaduo Sillah (“Sillah”), Hyun Jun
Kim (“Kim”), and Augustine Uzowuru (“Uzowuru”)—who worked as bussers,
servers, bartenders, and runners at Kristalbelli from 2014 to 2017, consented to

The appendix to this Opinion includes both a chart summarizing plaintiffs’
request for damages and a separate chart reflecting the amounts awarded by the
Court.
2

1

becoming party plaintiffs in this case. See Plaintiffs’ Amended Memorandum of
Law (“Pls. Mem.”), Dkt. No. 84 at 1; Dkt. Nos. 42–47, 50.
On June 16, 2016, this case was referred to me for settlement. Dkt. No. 7.
On May 31, 2017, the parties appeared before me for a settlement conference and
reached a settlement in principle. Dkt. No. 51. The parties thereafter consented to
my jurisdiction for all purposes under 28 U.S.C. § 636(c) (Dkt. No. 52), and I
directed them to submit their proposed settlement agreement to me for approval.
Dkt. No. 51.
Plaintiffs filed a motion for settlement approval on July 31, 2017. Dkt. No.
60. On August 9, 2017, I approved the proposed settlement agreement, and directed
the parties to submit a fully executed settlement agreement by September 11, 2017.
Dkt. No. 62. Having not received an executed agreement by the court deadline, on
September 18, 2017, I ordered the parties to advise me how they wished to proceed,
and whether there was any reason I could not issue an order of dismissal sua
sponte. Dkt. No. 63.
On September 26, 2017, the parties submitted a status report in which
plaintiffs sought leave to file an amended complaint, and defense counsel sought to
move to withdraw as counsel due to a “loss of communication” with Kim. Dkt. No.
64. 2 On November 1, 2017, I held a conference to address the parties’ requests.

Defense counsel reported to the Court in his motion to withdraw that his last
contact with Kim had been on July 7, 2017, and that since then he had been unable
to communicate with Kim despite nearly two dozen attempts to do so. Dkt. No. 69
¶¶ 6–8, 12.
2

3

Kim did not appear despite multiple efforts by the Court and defense counsel to
inform him of his obligation to attend the conference. Dkt. Nos. 65, 67, 71–72, and
73. After the November 1 hearing, I issued an order granting defense counsel’s
motion to withdraw. Dkt. No. 74. In the same order, I required Jyp Foods to
appear by new counsel within 30 days of my order, and Kim to advise the Court
whether he would be appearing by counsel or proceeding pro se. Id. I advised
plaintiffs that if defendants failed to appear, they could seek a default judgment.
Id. Despite my directives and warning, defendants to date have failed to appear to
defend this action.
On December 28, 2017, plaintiffs moved to strike the answer and for default
judgment. Dkt. Nos. 78–80. After reviewing their motion papers, I concluded that
plaintiffs had not provided a basis upon which I could establish damages with
reasonable certainty. Accordingly, I directed plaintiffs to supplement their motion
with additional evidence, including detailed affidavits, authorities, and legal
arguments, to support their damage calculations. Dkt. No. 81.
On May 29, 2018, plaintiffs submitted an amended memorandum of law and
a declaration from their counsel, with accompanying exhibits, including “excel
spreadsheets calculating plaintiffs’ damages by extrapolating [p]laintiffs’ hours
worked and pay from documents produced by defendants in discovery showing
plaintiffs’ dates of work, hours worked, and pay rates.” Dkt. No. 84; Declaration of
Gennadiy Naydenskiy dated May 29, 2018 (“Naydenskiy Decl.”), Dkt. No. 85,
¶¶ 4–5, Ex. C: Plaintiffs’ Damage Calculations (“Pls. Damage Calcs.”), Dkt. No. 85-1
4

at 3–6; Ex. D: Defendants’ Production (“Defs. Production”), Dkt. Nos. 85-1 to 85-11. 3
In their most recent submissions, plaintiffs explain that their damages were
calculated by “using the time and pay records provided by Defendant[s] prior to the
default.” Pls. Mem. at 8. Plaintiffs also clarify that their “corrected” damage
calculations include “weekly minimum wage and overtime calculations, with cites to
Defendants’ produced documents by bate stamp.” Id. Based on plaintiffs’ corrected
calculations—supported with information such as weekly start and end dates,
weekly hours worked, minimum wage hours worked, overtime hours worked, rates
of pay, applicable minimum wage rates, minimum wages owed, and overtime wages
owed—they seek $105,186.23 in damages and $24,396.04 in attorneys’ fees and
costs. Pls. Mem. at 8–9. 4 Defendants have not responded to this motion.
A.

Sanctions

II.

Discussion

Rule 16(f) of the Federal Rules of Civil Procedure allows a court to impose
sanctions when a party fails to appear at a court-ordered conference or fails to obey
other pretrial orders, including sanctions authorized by Rule 37(b)(2)(A)(ii)–(vii).
Fed. R. Civ. P. 16(f). Such sanctions may include “striking pleadings in whole or in
part” and “rendering a default judgment against the disobedient party.” Fed. R.

Pin cites to Exhibit C of the Naydenskiy Declaration refer to the pagination of the
document as they appear on the ECF filing because the original document does not
have page numbers.

3

Although plaintiffs request $105,186.22 in damages in their memorandum of law
(Pls. Mem. at 9), the accurate sum of their request—based on each individual
plaintiff’s damages—is $105,186.23.
4

5

Civ. P. 37(b)(2)(A)(iii), (vi). Although Rule 37 sanctions are “a harsh remedy to be
used only in extreme situations,” Agiwal v. Mid Island Mort. Corp., 555 F.3d 298,
302 (2d Cir. 2009) (citation omitted), they “protect other parties to the litigation
from prejudice resulting from a party’s noncompliance” and “serve other functions
unrelated to the prejudice suffered by individual litigants[,]” including specific and
general deterrence. S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 149
(2d Cir. 2010) (internal quotation marks and citations omitted).
The Second Circuit has articulated “[s]everal factors [that] may be useful in
evaluating a district court’s exercise of discretion” to impose sanctions pursuant to
Rule 37, including: (1) the willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of
noncompliance, and (4) whether the non-compliant party had been warned of the
consequences of . . . noncompliance.” Agiwal, 555 F.3d at 302–03 (quoting Nieves
v. City of N.Y., 208 F.R.D. 531, 535 (S.D.N.Y. 2002)). These factors are not exclusive
and none is dispositive, “[b]ecause the text of the rule requires only that the district
court’s orders be ‘just,’” and “because the district court has ‘wide discretion in
imposing sanctions under Rule 37[.]’” S. New England Tel. Co., 624 F.3d at 144
(quoting Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir. 2007)
(internal quotation marks omitted)). After considering each factor, the Court
concludes that striking the answer and entering a default judgment against
defendants are appropriate sanctions in this case.

6

1.

Willfulness

In his motion to withdraw, defense counsel Steven Seltzer reported to the
Court that his last communication with defendants took place on July 7, 2017 and
that he had been unable to communicate with them despite nearly two dozen
attempts to do so. Dkt. No. 69, ¶¶ 6–8, 12. 5 The Court held a hearing on November
1, 2017, at which it considered and granted defense counsel’s motion to withdraw.
Defendants failed to appear at the November 1 hearing despite multiple notices
from both the Court and defense counsel. They also ignored numerous court orders,
including a November 2, 2017 Order that directed Jyp Foods to retain new counsel
and Kim to appear by counsel or pro se.
Defendants have plainly been aware of this lawsuit (they initially answered
the complaint and participated in a settlement conference) but have nonetheless
failed to defend this action. Such conduct is reflective of willfulness and warrants
harsh sanctions. See, e.g., Campos v. Quentin Market Corp., No. 16-CV-5303 (RER),
2017 WL 9253412, at *3 (E.D.N.Y. Nov. 21, 2017) (willfulness found when parties
ignored court order to retain new counsel and failed to appear at conferences),

In his declaration, Seltzer stated: “I transmitted emails to Mr. Kim concerning
this matter on July 11th, July 18th, July 19th, July 21st (two emails), July 24th, July
28th and September 25, 2017. In the course of my email correspondence, I
transmitted the settlement agreement in this matter to Mr. Kim for signature. I
did not receive a response to any of these emails.” Dkt. No. 69, ¶ 7. He also stated:
“Additionally, between July 7, 2017 and the present, both the undersigned and my
office staff attempted to reach Mr. Kim by telephone on at least 15 occasions. Mr.
Kim did not answer any of those telephone calls and has not returned any of the
calls. The calls were placed to the telephone number for Mr. Kim that I used to
successfully communicate with him on all prior occasions during my representation
of the defendants.” Id. ¶ 8.
7
5

adopted by, Order dated Mar. 13, 2018; see also Castillo v. Zishan, Inc., No. 16-CV6166 (JGK), 2017 WL 3242322, at *2 (S.D.N.Y. July 28, 2017) (corporate defendant
that failed to retain new attorney and failed to appear at scheduled conference acted
willfully).
2.

Efficacy of Lesser Sanctions

The Court concludes that a less severe sanction than the entry of a default
judgment would not be appropriate in this case because defendants have failed to
defend the action since the settlement conference in May 2017. While lesser
sanctions should be considered before the Court proceeds to strike an answer and
issue a default judgment against a non-compliant party (see, e.g., Agiwal, 555 F.3d
at 302), defendants’ repeated noncompliance with court orders and failure to engage
with the Court indicates that any lesser sanction would be “an exercise in futility[.]”
Koch v. Rodenstock, No. 06-CV-6586 (BSJ) (DF), 2010 WL 2010892, at *7 (S.D.N.Y.
Apr. 23, 2010), adopted by, 2010 WL 2010900 (S.D.N.Y. May 18, 2010).
3.

Duration of Non-compliance

Defendants’ failure to appear and comply with court orders spans almost a
year and qualifies as an amount of time sufficient to warrant striking the answer
and entering a default judgment. See, e.g., Local Union No. 40 of the Intern. Ass’n of
Bridge v. Car-Wi Const., 88 F. Supp. 3d 250, 265–66 (S.D.N.Y. 2015) (“[D]urations of
time as brief as a few months have been held to weigh in favor of dispositive
sanctions. And periods of six months or more weigh even more heavily toward such
remedies.”) (collecting cases).
8

Defendants failed to submit an executed, court-approved settlement
agreement by September 11, 2017; respond to the Court’s September 18, 2017 Order
to provide a status update; attend the November 1, 2017 hearing where their
counsel moved to withdraw; appear pursuant to the Court’s November 2, 2017
Order; and oppose plaintiffs’ motion to strike the answer and for default judgment.
Accordingly, the duration of defendants’ failure to defend this action and comply
with this Court’s orders warrants sanctions.
4.

History of Warnings

As far back as November 2017, defendants were on notice that failing to
participate in the litigation and defend against plaintiffs’ lawsuit would result in
sanctions. After the November 1, 2017 hearing, the Court directed Jyp Foods to
appear by new counsel and Kim to advise whether he would be appearing with
counsel or proceeding pro se. In its order dated November 2, 2017, the Court
warned defendants that if they failed to appear, plaintiffs would be permitted to
move to strike the answer and seek a default judgment. Id. Despite the Court’s
warnings, defendants have still failed to appear.
Moreover, given plaintiffs’ motion to strike the answer and for default
judgment was submitted on December 28, 2017 and supplemented on May 29,
2018, defendants have been on notice for many months of plaintiffs’ intention to
initiate default proceedings should they fail to engage in the litigation. The Court’s
warnings, coupled with the other factors, weigh in favor of striking the answer and
entering a default judgment at this stage of the proceedings. See, e.g., Campos,
9

2017 WL 9253412 at *3 (answer struck and default entered where court warned
defendants of sanctions); Zurita v. Bergen Pizza Inc., No. 13-CV-1846 (KAM) (LB),
2015 WL 1602148, at *1 (E.D.N.Y. Apr. 2, 2015) (same).
B.

Facts Established as a Result of Defendants’ Default
Once a default has been established, as is the case here, the Court accepts as

true all of the factual allegations in a complaint except the amount of damages. See
generally City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011)
(“It is an ‘ancient common law axiom’ that a defendant who defaults thereby admits
all ‘well-pleaded’ factual allegations contained in the complaint.”) (citation omitted);
see, e.g., Coach, Inc. v. Melendez, No. 10-CV-6178 (BSJ) (HBP), 2011 WL 4542971
(S.D.N.Y. Sept. 2, 2011), adopted by, 2011 WL 4542717 (S.D.N.Y. Sept. 30, 2011).
Having determined that defendants’ noncompliance warrants an entry of a default
judgment, the Court must “follow the procedure for entry of a default judgment as
set forth in [Rule 55].” Kuruwa v. Meyers, 823 F. Supp. 2d 253, 256 (S.D.N.Y. 2011).
“Under the case law interpreting that rule, the default establishes [defendants’]
liability as long as the complaint has stated a valid cause of action[.]” Id. (citations
omitted). Accordingly, the factual allegations contained in plaintiffs’ complaint and
the additional submissions filed by plaintiffs in their motion papers, except as to the
amount of damages claimed, must be taken as true. See, e.g., Galeana
v. Lemongrass on Broadway Corp., 120 F. Supp. 3d 306, 313 (S.D.N.Y. 2014).

10

1.

Liability

Plaintiffs allege that defendants operated a restaurant, “grossed more than
$500,000 in each of the last six calendar years[,]” and “engaged in interstate
‘commerce’ and/or in the ‘production of goods’ for ‘commerce’, within the meaning of
29 U.S.C. § 203 and the NYLL.” Compl. ¶¶ 12–13. Kim, “who had and exercised
the power to hire, fire, and control the wages and working conditions of the
[p]aintiff[s],” managed and operated Jyp Foods. Compl. ¶ 9. Defendants were
employers as defined by the Fair Labor Standards Act (“FLSA”) and New York
Labor Law (“NYLL”) and “employed ‘employee[s]’, including [p]laintiffs [and] each
of the FLSA Collective Plaintiffs and Class Members.” Id. ¶ 12.
“Such allegations, coupled with [d]efendants’ default, suffice to establish that
[Jyp Foods and Kim] qualify as [p]laintiffs’ ‘employer’ for purposes of [the] FLSA
and NYLL, and therefore to impose joint and several liability on each of them for
their respective violations of the wage laws.” Pineda v. Masonry Const., Inc., 831
F. Supp. 2d 666, 686 (S.D.N.Y. 2011) (citing Shim v. Millennium Grp., LLC, No.
08-CV-4022 (FB) (VVP), 2010 WL 409949, at *2 (E.D.N.Y. Jan. 27, 2010) (on default
judgment, finding both individual defendants and corporation liable under FLSA
where complaint contained allegations of actions taken collectively by defendants);
Moon v. Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002) (corporate officer
considered to be employer under FLSA jointly and severally liable with
corporation)).

11

2.

Plaintiffs’ Work Hours and Compensation at Kristalbelli

Defendants’ own employment records, produced to plaintiffs during the
litigation, reveal the following:
Sanchez worked from April 2012 to July 2015. Naydenskiy Decl., Ex. D:
Defs. Production at DEF0002–294. His pay rate during most of his employment
was $5.00 per hour, and he regularly worked more than 40 hours per week—
anywhere between 40.25 and 62.75 hours per week. Id.
Augustin worked from June 2014 to March 2015. Id. at DEF0182–258. His
pay rate was $5.00 per hour, and he regularly worked more than 40 hours per
week—anywhere between 41.25 and 59.25 hours per week. Id.
Newaz worked from February to March 2015. Id. at DEF0248–50, 258–62.
His pay rate was $5.00 per hour, and he worked 10.5, 37.25, 14.75, 15, and 6.75
hours per week, consecutively, throughout his five weeks of employment. Id.
Santiago worked from January to April 2015. Id. at DEF0244–268. His pay
rate was $5.00 per hour, and he worked between 25.75 and 39.5 hours per week. Id.
Sillah worked from June 2016 to April 2017. Id. at DEF0338–380. His pay
rate during most of his employment was $7.50 per hour, and he worked between 2.5
and 37.75 hours per week. Id.
Kim worked from April to July 2016. Id. at DEF0324–336. His pay rate
during most of his employment was $7.50 per hour, and he worked between 7.25
and 39.75 hours per week. Id.

12

Uzowuru worked from March to July 2016. Id. at DEF0382–402. His pay
rate during most of his employment was $7.50 per hour, and he worked between
13.25 and 45.5 hours per week. Id.
Defendants knowingly and willfully operated their business with a policy of
not paying minimum wages and overtime pay and not providing wage statements
and wage notices. Compl. ¶¶ 23–26, 29.
3.

Defendants’ Failure to Provide Wage Statements and Notices

Defendants failed to provide plaintiffs with wage statements at the time of
each wage payment, with information required by NYLL: the dates of work covered
by that payment of wages; name of employee; name of employer; address and phone
number of employer; rate of pay and basis thereof; whether paid by the hour, shift,
day, week, salary, piece, commission or other; the regular hourly rate or rates of
pay; the overtime rate or rates of pay; the number of regular hours worked and the
number of overtime hours worked; gross wages; deductions; allowances, if any,
claimed as part of the minimum wage; and net wages. Compl. ¶¶ 40, 44, 57; see also
NYLL § 195(3). Defendants also failed to provide plaintiffs with wage notices as
required by NYLL § 195(1). Compl. ¶¶ 27, 40.
C.

Inquest into Damages
1.

Burden of Proof on Damages

“Even when a default judgment is warranted based on a party’s failure to
defend, the allegations in the complaint with respect to the amount of the damages
are not deemed true. The district court must instead conduct an inquiry in order to
13

ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec.
(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citation omitted).
“[E]ven when the defendant[s] default[ ] and [are] not present to object,” plaintiffs
have the burden of establishing their entitlement to “damages . . . based on
admissible evidence.” House v. Kent Worldwide Mach. Works. Inc., 359 F. App’x
206, 207 (2d Cir. 2010). To establish damages upon default, plaintiffs must
demonstrate that the “compensation sought relate[s] to the damages that naturally
flow from the injuries pleaded.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 159 (2d Cir. 1992).
An employee seeking to recover unpaid wages “‘has the burden of proving
that he performed work for which he was not properly compensated.’” Jiao v. Chen,
No. 03-CV-165 (DF), 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689 (1946)). “[T]he employee
should not speculate, but may rely on his present memory and recollection to carry
the burden.” Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC),
2012 WL 1669341, at *3 (S.D.N.Y. May 14, 2012) (internal citations and quotation
marks omitted), adopted by, Order dated Aug. 9, 2012 (Dkt. No. 20). Absent
“rebuttal by defendants . . . [the employee’s] recollection and estimates of hours
worked are presumed to be correct.” Kernes v. Global Structures, LLC, No. 15-CV659 (CM) (DF), 2016 WL 880199, at *6 (S.D.N.Y. Feb. 9, 2016) (internal citations
and quotation marks omitted) (alterations in original), adopted by, Order dated
Mar. 1, 2016 (Dkt. No. 27).
14

The Second Circuit has long approved the process of conducting an inquest by
affidavit, without an in-person court hearing, “‘as long as [the court has] ensured
that there was a basis for the damages specified in the default judgment.’”
Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d
Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.
1989)). The Court concludes here that “a hearing is not necessary, as documents
submitted in this action provide a ‘sufficient basis from which to evaluate the
fairness’ of the damages requested.” Am. Jewish Comm. v. Berman, No. 15-CV5983 (LAK) (JLC), 2016 WL 3365313, at *4 (S.D.N.Y. June 15, 2016) (quoting
Fustok, 873 F.2d at 40), adopted by, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016).
Plaintiffs rely on “documents produced by Defendants in discovery” to
support their request for damages. Naydenskiy Decl. ¶ 4, Ex. D: Defs. Production.
Plaintiffs allege that the records provided to the Court are “a true and correct copy
of Defendants’ produced documents” and that their damages were calculated using
the “time and pay records provided by Defendant[s] prior to the default.” Id. ¶ 5,
Ex. D: Defs. Production; Pls. Mem. at 8. Therefore, this is an unusual case in which
defendants produced certain employment records—detailing “dates worked, hours
worked, and rates of pay”—that expose their violations of federal and state wageand-hour laws. See Naydenskiy Decl., Ex. D: Defs. Production. Despite the
availability of this compelling evidence, plaintiffs’ submissions are not optimal.
Plaintiffs’ counsel failed to provide any supporting affidavits or declarations from
the plaintiffs themselves, despite the Court offering them a second chance to correct
15

the deficiencies in their initial inquest filings. See Dkt. No. 81. It would have been
“best practices” to have made such submissions. Nevertheless, the Court considers
defendants’ payroll records sufficient in these circumstances to support plaintiffs’
request for damages.
2.

Statute of Limitations

As a threshold matter, based on defendants’ records of plaintiffs’ terms of
work, the Court finds that there is no applicable statute of limitations defense here.
The statute of limitations is six years under NYLL, two years under the FLSA for
standard violations, and three years under the FLSA for willful violations. See
NYLL § 663(3); 29 U.S.C. § 255(a).
Sanchez began working for defendants in April 2012 and filed the complaint,
raising claims under the FLSA and NYLL, on June 14, 2016. Compl. ¶ 7;
Naydenskiy Decl., Ex. D: Defs. Production at DEF0002. Opt-in plaintiffs began
working for defendants at various times throughout 2014 to 2016, and filed their
consent forms to become party plaintiffs to this action in March and April 2017. See
Dkt. Nos. 42–47; Naydenskiy Decl., Ex. D: Defs. Production at DEF0182, 244, 248,
324, 338, 382. Plaintiffs allege that defendants knowingly and willfully operated
their business in violation of the FLSA and NYLL by failing to pay them the
applicable minimum wages and overtime pay owed to them. Compl. ¶¶ 23–25, 32,
48, 50, 53.
The Court accepts these allegations as true, given defendants’ default. See,
e.g., Herrara v. 12 Water St. Gourmet Cafe, Ltd., No. 13-CV-4370 (JMF) (RLE), 2016
16

WL 1274944, at *4 (S.D.N.Y. Feb. 29, 2016) (collecting cases), adopted by, 2016 WL
1268266 (S.D.N.Y. Mar. 31, 2016). Therefore, plaintiffs’ respective employment
periods are entirely covered by NYLL’s six-year statute of limitations.
3.

Minimum Wage and Overtime Pay Violations
a.

Legal Standards

Under both federal and state law, employers must pay employees a statutory
minimum wage. See 29 U.S.C. § 206(a)(1); NYLL § 652(1); 12 NYCRR § 146-1.2.
The FLSA requires employers to pay employees at least the federal minimum wage
for every hour worked, 29 U.S.C. § 206, or the state minimum wage if it exceeds the
federal minimum wage. See 29 U.S.C. § 218(a). Since 2009, the minimum wage
under the FLSA has been $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). During the
relevant period, the minimum wage under New York law has been as follows:
Minimum Wage Rate
$7.15
$8.00
$8.75
$9.00
$11.00 or $10.50

Relevant Period
from August 24, 2010 until December 30, 2013
from December 31, 2013 until December 30, 2014
from December 31, 2014 until December 30, 2015
from December 31, 2015 until December 30, 2016
$11 from December 31, 2016 until December 30, 2017
for "large" employers who employ 11 or more employees in the city of New York; or
$10.50 for "small" employers who employ ten or less employees in the city of New York

See NYLL § 652(1).
In addition, both federal and state law also require employers to pay
employees one and one-half times the minimum wage for time worked in excess of
40 hours per week. 29 U.S.C. § 207(a)(1); 12 NYCRR §§ 146-1.4, 142-2.2; Kernes,
2016 WL 880199, at *3 (“[A]n employee is entitled to be paid for overtime hours (i.e.,
hours exceeding 40 per week), at a ‘rate not less than one and one-half times the
17

regular rate at which [the employee] is employed.’”) (quoting 29 U.S.C. § 207(a)(1));
Herrara, 2016 WL 1274944, at *5 (citing 29 U.S.C. § 207(a) and 12 NYCRR
§ 146-1.4). Appropriate overtime wages are “calculated by multiplying [an
employee’s] regular hourly rate (or the minimum wage rate, if his regular hourly
rate falls below the minimum wage) by one and one-half. That rate is then
multiplied by the number of hours in excess of forty hours the employee worked
each week.” Rosendo v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL
1600057, at *4 (S.D.N.Y. Apr. 7, 2015), adopted by, 2015 WL 4557147 (S.D.N.Y. July
28, 2015).
Although “plaintiffs may not recover under both the FLSA and the NYLL for
the same injury, courts allow plaintiffs to recover under the statute that provides
for the greatest relief.” Ni v. Bat-Yam Food Servs. Inc., No. 13-CV-7274 (ALC)
(JCF), 2016 WL 369681, at *1 (S.D.N.Y. Jan. 27, 2016); see also, e.g., Castillo v. RV
Transp., Inc., No. 15-CV-0527 (LGS), 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11,
2016); Maldonado, 2012 WL 1669341, at *5. Here, the Court will award damages
under NYLL because it provides the greatest relief under the minimum wage laws
(as well as for overtime, liquidated damages, and statutory damages). 6

Plaintiffs alleged a “spread of hours” claim in the complaint (Compl. at 12–13,
¶¶ 1-6), but abandoned that claim in their motion to strike the answer and for
default judgment (Dkt. Nos. 78–80, 84–85).
18
6

b.

Application
i.

Sanchez’s Unpaid Wages

During his employment, which lasted from April 2012 to July 2015, Sanchez
alleges that he was not paid minimum wages or proper overtime. Naydenskiy Decl.,
Ex. C: Pls. Damage Calcs. at 5–6; Ex. D: Defs. Production at DEF0002–294.
Defendants’ records include Sanchez’s rate of pay and the hours that he worked
during his employment. Naydenskiy Decl., Ex. D: Defs. Production at DEF0002–
294. Sanchez’s hourly rate during most of his employment was $5.00. Id. 7 This
rate was below the applicable minimum wage of $7.25 from April 2012 to December
30, 2013; below the applicable minimum wage of $8.00 from December 31, 2013 to
December 30, 2014; and below the applicable minimum wage of $8.75 from
December 31, 2014 to July 2015. Based on defendants’ own employment records,
the Court calculates Sanchez’s award for unpaid wages as follows:

From April 22, 2012 to December 1, 2012, Sanchez’s hourly rate ranged from
$6.00 to $8.00. See Naydenskiy Decl., Ex. D: Defs. Production at DEF0002–48.
19

7

Sanchez Damages
period

total hours minimum
worked

wage

regular

applicable

hourly rate minimum

unpaid

overtime

applicable

overtime

unpaid

total unpaid

minimum

paid

overtime

hours

overtime

wages owed

rate

worked

wage

hours

wages

worked
$0 or
4/22/12 to

$6.00 or

6/23/12

471.75

362.5

$10.50 or

$7.00 $

7.25

$

10.88

109.25 $

683.14

$

827.20

$4.00 $

10.88

13.5 $

92.13

$

92.13

3.50 $

10.88

26.75 $

197.42

$

264.60

$3.50 $

144.06

10.88

21.25 $

167.58

$

507.89

$3.50 $

6/24/12 to

$3.50 or
320.75

307.25 $

8.00

$

7.25

$

-

295.5

9/29/12

268.75 $

7.00

$

7.25

$

67.19

9/30/12 to
12/1/12

$

12/2/12 to

$2.50 or
172.5

151.25 $

5.00

$

7.25

$

574.25

506.25 $

5.00

$

7.25

$ 1,139.06

$

2.50 $

10.88

68 $

569.84

$ 1,708.90

538.5

475.25 $

5.00

$

7.25

$ 1,069.31

$

2.50 $

10.88

63.25 $

530.04

$ 1,599.35

548.5

504.5 $

5.00

$

7.25

$ 1,135.13

$

2.50 $

10.88

44 $

368.72

$ 1,503.85

573.75

505.5 $

5.00

$

8.00

$ 1,516.50

$

2.50 $

12.00

68.25 $

620.25

$ 2,136.75

527

495 $

5.00

$

8.00

$ 1,485.00

$

2.50 $

12.00

32 $

279.00

$ 1,764.00

582.25

506.5 $

5.00

$

8.00

$ 1,519.50

$

2.50 $

12.00

75.75 $

719.63

$ 2,239.13

648.75

540.25 $

5.00

$

8.00

$ 1,620.75

$

2.50 $

12.00

108.5 $

840.75

$ 2,461.50

576

475.75 $

5.00

$

8.75

$ 1,784.06

$

2.50 $

13.13

100.25 $ 1,062.66

$ 2,846.72

579.25

12/29/12

566.75 $

5.00

$

8.75

$ 2,125.31

$

2.50 $

13.13

340.31

12/30/12 to
3/30/13
3/31/13 to
6/29/13
6/30/13 to
10/5/13
and
12/29/13
12/31/13 to
3/29/14
3/30/14 to
6/28/14
6/29/14 to
9/27/14
9/28/14 to
12/30/14
12/31/14 to
3/28/15
3/29/14 to
7/18/15

$13,946.19

TOTALS

132.81

$ 2,258.13

$ 6,263.94

$20,210.13

12.5 $

See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 5–6; Ex. D: Defs. Production at
DEF0002–294.
Specifically, Sanchez is entitled to $13,946.19 in unpaid minimum wages.
Further, because Sanchez worked more than 40 hours per week during his
employment, he is eligible for overtime compensation. Sanchez is entitled to
overtime at a rate of one and one-half times the applicable minimum wage rate for
each overtime hour worked. In 2012 and 2013, his overtime rate should have been
20

$10.88 ($7.25 x 1.5); in 2014, his overtime rate should have been $12.00 ($8.00 x
1.5); and in 2015, his overtime rate should have been $13.13 ($8.75 x 1.5). However,
for most of his employment, defendants only paid Sanchez $2.50 for each overtime
hour worked. Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 5–6; Ex. D: Defs.
Production at DEF0052–294. 8 Therefore, Sanchez is entitled to overtime
compensation in the amount of $6,263.94. In sum, the Court concludes that
Sanchez should be awarded $20,210.13 in unpaid wages. 9
ii.

Augustin’s Unpaid Wages

During his employment, which lasted from June 2014 to March 2015,
Augustin alleges that he was not paid minimum wages or proper overtime.
Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3; Ex. D: Defs. Production at
DEF0182–258. Defendants’ records include Augustin’s rate of pay and the hours
that he worked during his employment. Naydenskiy Decl., Ex. D: Defs. Production
at DEF0182–258. Augustin’s hourly rate of $5.00 was below the applicable
minimum wage of $8.00 from June 2014 to December 30, 2014, and below the
applicable minimum wage of $8.75 from December 31, 2014 to March 2015. Based

The Court adjusts overtime calculations from April 22, 2012 to December 29, 2013
because Sanchez was paid at varying rates ranging from $0 to $10.50 per overtime
hour. See Naydenskiy Decl., Ex. D: Defs. Production at DEF0002–48.
8

Although Sanchez requests $20,552.86 in total unpaid wages (Naydenskiy Decl.,
Ex. C: Pls. Damage Calcs. at 6), the Court cannot award overtime compensation for
certain periods of time between June 15 and August 30, 2014, because portions of
the underlying records are illegible. See Naydenskiy Decl., Ex. D: Defs. Production
at DEF0182–202.
9

21

on defendants’ own employment records, the Court calculates Augustin’s award for
unpaid wages as follows:

See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3; Ex. D: Defs. Production at
DEF0182–258.
Specifically, Augustin is entitled to $3,626.81 in unpaid minimum wages.
Further, because Augustin worked more than 40 hours per week during his
employment, he is eligible for overtime compensation. Augustin is entitled to
overtime at a rate of one and one-half times the applicable minimum wage rate for
each overtime hour worked. In 2014, his overtime rate should have been $12.00
($8.00 x 1.5), and in 2015, his overtime rate should have been $13.13 ($8.75 x 1.5).
However, defendants only paid him $2.50 for each overtime hour worked. Id. at

22

DEF0188, 194–204, 208, 226, 234, 252–56. 10 Therefore, Augustin is entitled to
overtime compensation in the amount of $653.38. In sum, the Court concludes that
Augustin should be awarded $4,280.19 in unpaid wages. 11
iii.

Newaz’s Unpaid Wages

During his employment, which lasted from February to March 2015, Newaz
alleges that he was not paid minimum wages. Naydenskiy Decl., Ex. C: Pls.
Damage Calcs. at 3; Ex. D: Defs. Production at DEF0248–50, 258–62. Defendants’
records include Newaz’s rate of pay and the hours that he worked during his
employment. Naydenskiy Decl., Ex. D: Defs. Production at DEF0248–50, 258–62.
Newaz’s hourly rate of $5.00 was below the applicable minimum wage of $8.75.
Based on defendants’ own employment records, the Court concludes that Newaz is
eligible for minimum wage compensation in the amount of $315.94 and should be
awarded that amount in unpaid wages:

During the week ending on September 20, 2014, defendants did not pay Augustin
any overtime. Id. at DEF0208. The Court accounts for this deviation in its
calculations.
10

Although Augustin requests $4,630.63 in total unpaid wages (Naydenskiy Decl.,
Ex. C: Pls. Damage Calcs. at 3), the Court cannot award overtime compensation
between June 15 and August 30, 2014, because portions of the underlying records
related to that period are illegible. See Naydenskiy Decl., Ex. D: Defs. Production at
DEF0182–202.
11

23

Newaz Damages
period

total hours

regular

applicable

unpaid

worked

hourly rate

minimum

minimum

wage

wages

2/1 to 2/14/15

47.75 $

5.00

$

8.75

$

179.06

3/8 to 3/28/15

36.5 $

5.00

$

8.75

$

136.88

$

315.94

TOTALS

See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3; Ex. D: Defs. Production at
DEF0248–50, 258–62. 12
iv.

Santiago’s Unpaid Wages

During his employment, which lasted from January to April 2015, Santiago
alleges that he was not paid minimum wages. Naydenskiy Decl., Ex. C: Pls.
Damage Calcs. at 3; Ex. D: Defs. Production at DEF0244–268. Defendants’ records
include Santiago’s rate of pay and the hours that he worked during his employment.
Naydenskiy Decl., Ex. D: Defs. Production at DEF0244–268. Santiago’s hourly rate
of $5.00 was below the applicable minimum wage of $8.75. Based on defendants’
own employment records, the Court concludes that Santiago is eligible for minimum
wage compensation in the amount of $1,401.56 and should be awarded that amount
in unpaid wages:

Defendants’ records establish that Newaz did not work from February 15, 2015
to March 7, 2015.
24
12

See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3; Ex. D: Defs. Production at
DEF0244–268.
v.

Sillah’s Unpaid Wages

During his employment, which lasted from June 2016 to April 2017, Sillah
alleges that he was not paid minimum wages. Naydenskiy Decl., Ex. C: Pls.
Damage Calcs. at 3; Ex. D: Defs. Production at DEF0338–380. Defendants’ records
include Sillah’s rate of pay and the hours that he worked during his employment.
Naydenskiy Decl., Ex. D: Defs. Production at DEF0338–380. Sillah reports that he
was paid the applicable minimum wage rate for 17.25 hours of work at the
beginning of his employment from June 18 to July 1, 2016 (although he was not
paid minimum wages for 7.5 hours of work during this same employment period).
See Naydenskiy Decl., Ex. D: Defs. Production at DEF0338–340. However, his
hourly rate changed to $7.50 and was below the applicable minimum wage of $9.00
from July 2 to December 30, 2016, and below the applicable minimum wage of
$11.00 from December 31, 2016 to the end of his employment in April 2017. See

25

Naydenskiy Decl., Ex. D: Defs. Production at DEF0340–380. 13 Based on
defendants’ own employment records, the Court concludes that Sillah is eligible for
minimum wage compensation in the amount of $1,431.13 and should be awarded
that amount in unpaid wages:
Sillah Damages
period

applicable

6/18 to 7/1/16

24.75

$9.00 for 17.25 hours and $7.50 for 7.5 hours

minimum

wage

regular hourly rate

worked

unpaid

minimum

total hours

wages

$

9.00

$

11.25

7/2 to 7/29/16

126 $

7.50

$

9.00

$

189.00

7/30 to 8/26/16

129 $

7.50

$

9.00

$

193.50

8/27 to 9/30/16

126.75 $

7.50

$

9.00

$

190.13

10/1 to 10/28/16

91.75 $

7.50

$

9.00

$

137.63

10/29 to 12/30/16

110.25 $

7.50

$

9.00

$

165.38

12/31/16 to 1/27/17

61 $

7.50

$

11.00

$

213.50

1/28 to 2/24/17

33 $

7.50

$

11.00

$

115.50

2/25 to 3/31/17

51.5 $

7.50

$

11.00

$

180.25

4/15 to 4/28/17

10 $

7.50

$

11.00

$

35.00

$ 1,431.13

TOTALS

See Naydenskiy Decl., Ex.C: Pls. Damage Calc. at 3; Ex. D: Defs. Production at
DEF0338–380.
As discussed supra, beginning on December 31, 2016, the applicable minimum
wage rate under NYLL was determined by location and the number of employees
employed. See NYLL § 652(1). Kristalbelli was located in Manhattan (Compl. ¶ 8).
Thus, the minimum wage rate for New York City employees applies. However,
plaintiffs did not provide information about the number of employees employed by
Kristalbelli so that the Court could determine whether the applicable minimum
wage rate is $11.00 (for “large” employers who employ 11 or more employees in the
City of New York) or $10.50 (for “small” employers who employ ten or less
employees in the City of New York). See NYLL § 652(1). Nevertheless, in light of
defendants’ default, the Court gives plaintiffs the benefit of the doubt and applies
the $11.00 rate requested by plaintiffs. Naydenskiy Decl., Ex. C: Pls. Damage
Calcs. at 3.
13

26

vi.

Kim’s Unpaid Wages

During his employment, which lasted from April to July 2016, Kim alleges
that he was not paid minimum wages. Naydenskiy Decl., Ex. C: Pls. Damage Calcs.
at 3; Ex. D: Defs. Production at DEF0324–336. Defendants’ records include Kim’s
rate of pay and the hours that he worked during his employment. Naydenskiy
Decl., Ex. D: Defs. Production at DEF0324–336. Kim reports that while he was
paid minimum wages for 77.75 hours of work at the beginning of his employment,
from April 2 to April 22, 2016 (although he was not paid minimum wages for 4
hours of work during this same employment period), his hourly rate changed to
$7.50 and was below the applicable minimum wage of $9.00 from April 23, 2016 to
the end of his employment in July 2016. Based on defendants’ own employment
records, the Court concludes that Kim is eligible for minimum wage compensation
in the amount of $401.63 and should be awarded that amount in unpaid wages:
Kim Damages
period

total hours

regular hourly rate

applicable

unpaid

minimum

worked

minimum

wage
4/2 to 4/22/16

81.75

wages

$9.00 for 77.75 hours and $7.50 for 4 hours

$

9.00

$

6.00

4/23 to 5/27/16

156 $

7.50

$

9.00

$

234.00

5/28 to 6/24/16

77.5 $

7.50

$

9.00

$

116.25

6/25 to 7/8/16

30.25 $

7.50

$

9.00

$

45.38

$

401.63

TOTALS

See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3. Ex. D: Defs. Production at
DEF0324–336.

27

vii.

Uzowuru’s Unpaid Wages

During his employment, which lasted from February to July 2016, Uzowuru
alleges that he was not paid minimum wages or overtime pay. Naydenskiy Decl.,
Ex. C: Pls. Damage Calcs. at 3–4; Ex. D: Defs. Production at DEF0382–402.
Defendants’ records include Uzowuru’s rate of pay and the hours that he worked
during his employment. Naydenskiy Decl., Ex. D: Defs. Production at DEF0382–
402. Uzowuru reports that he was paid minimum wages from the start of his
employment in March 2016 through the week ending on April 15, 2016. However,
Uzowuru’s hourly rate changed to $7.50 and was below the applicable minimum
wage of $9.00 from April 16, 2016 to the end of his employment in July 2016. Based
on defendants’ own employment records, the Court calculates Uzowuru’s award for
unpaid wages as follows:

See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3–4; Ex. D: Defs. Production at
DEF0382–402.
Specifically, Uzowuru is entitled to minimum wage compensation in the
amount of $596.63. Further, because Uzowuru worked more than 40 hours during
two weeks of his employment and was not paid any overtime, he is eligible for
28

overtime compensation in the amount of $87.75. See Naydenskiy Decl., Ex. D: Defs.
Production at DEF0384. The Court therefore concludes that Uzowuru should be
awarded $684.38.
4.

Statutory Damages for Wage Statement and Notice Violations
a.

Legal Standard

Plaintiffs also seek to recover damages for defendants’ failure to provide wage
statements and wage notices as required by New York’s Wage Theft Prevention Act
(“WTPA”). Compl. ¶¶ 40, 44, 57–58; Pls. Mem. at 1,5; see NYLL § 195. The WTPA
requires employers to provide, “with every payment of wages,” a statement that
lists the following:
the dates of work covered by that payment of wages; name of
employee; name of employer; address and phone number of
employer; rate or rates of pay and basis thereof, whether paid by
the hour, shift, day, week, salary, piece, commission, or other;
gross wages; deductions; allowances, if any, claimed as part of
the minimum wage; and net wages . . . . [T]he statement shall
include the regular hourly rate or rates of pay; the overtime rate
or rates of pay; the number of regular hours worked, and the
number of overtime hours worked.
NYLL § 195(3).
The WTPA also requires that employers furnish each employee with a wage
notice at the time of hiring that contains the following information:
the rate or rates of pay and basis thereof, whether paid by the
hour, shift, day, week, salary, piece, commission, or other;
allowances, if any, claimed as part of the minimum wage,
including tip, meal, or lodging allowances; the regular pay day
designated by the employer in accordance with section one
hundred ninety-one of this article; the name of the employer;
any “doing business as” names used by the employer; the
physical address of the employer’s main office or principal place
29

of business, and a mailing address if different; the telephone
number of the employer; plus such other information as the
commissioner deems material and necessary.
NYLL § 195(1)(a).
From April 9, 2011 to February 26, 2015: (1) “an employer’s failure to provide
proper wage statements ‘was a violation for which plaintiffs could receive $100 per
work week in damages, with a cap of $2,500’”; Gamero v. Koodo Sushi Corp., 272
F. Supp. 3d 481, 511 (quoting Hernandez v. Jrpac Inc., No. 14-CV-4176 (PAE), 2016
WL 3248493, at *29 (S.D.N.Y. June 9, 2016)); see also NYLL § 198(1-d) (effective
April 9, 2011 to February 26, 2015); and (2) an employer’s failure to provide a
proper wage notice to an employee within ten business days of his first day of
employment was a violation for which plaintiffs could receive $50 per work week in
damages, with a cap of $2,500. See Gamero, 272 F. Supp. 3d at 510; see also NYLL
§ 198(1-b).
“Since February 27, 2015, an employee who was not provided a wage notice
within ten business days of the first day of employment can recover damages of $50
for each workday that a violation occurs or continues to occur, not to exceed $5,000,
and an employee can recover $250 for each workday that a wage statement
violation occurs or continues to occur, not to exceed $5,000.” Pastor v. Alice
Cleaners, Inc., No. 16-CV-7264 (JLC), 2017 WL 5625556, at *5 (S.D.N.Y. Nov. 21,
2017) (citing NYLL § 198(1-b), (1-d)).

30

b.

Application

None of the plaintiffs ever received a wage statement with payments of wages
during their employment, or a wage notice upon their hiring or anytime thereafter.
Compl. ¶¶ 40, 44, 57–58; Pls. Mem. at 1, 5.
i.

Sanchez’s Statutory Damages

Sanchez was employed by defendants from April 26, 2012 to July 18, 2015.
See Naydenskiy Decl., Ex. D: Defs. Production DEF0182–258. For his employment
between April 26, 2012 and February 26, 2015, Sanchez is entitled to the maximum
award of $2,500 for defendants’ wage statement violations and an additional
maximum award of $2,500 for defendants’ wage notice violations. 14 In addition, for
the 91 days of his employment between February 27 to July 18, 2015, Sanchez is
entitled to the maximum award of $5,000 for defendants’ wage statement
violations15 and an additional award of $4,550 (91 days x $50 per work day) for
defendants’ wage notice violations. 16 These amounts total $14,550. However,

Because this employment period spanned more than 25 weeks, Sanchez is
entitled to wage statement damages in the full statutory amount of $2,500. He is
also entitled to wage notice damages in the full statutory amount of $2,500 because
this employment period spanned more than 50 weeks.
14

Because this employment period spanned more than 20 days, Sanchez is entitled
to wage statement damages in the full statutory amount of $5,000.
15

When wage notice violations have occurred during time periods both before and
after February 27, 2015, when the law was amended, courts have awarded plaintiffs
statutory damages at $50 per week, up to a maximum of $2,500 for violations that
occurred before February 27, 2015, and $50 per work day, up to a maximum of
$5,000 for violations that occurred after February 27, 2015. See, e.g., Cabrera v.
N.Y. Fresh Meat Inc., No. 15-CV-1325 (GBD) (SDA), 2018 WL 3300647, at *8
(S.D.N.Y. Mar. 29, 2018) (separate amount awarded for employment on February
31
16

Sanchez’s inquest submissions only sought $5,000 for defendants’ wage statement
and wage notice violations. See Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 6.
Therefore, the Court awards him statutory damages in the amount of $5,000.
ii.

Augustin’s Statutory Damages

Augustin was employed from June 16, 2014 to March 8, 2015. See
Naydenskiy Decl., Ex. D: Defs. Production DEF0182–258. Thus, for the 30 weeks of
his employment between June 16, 2014 and February 26, 2015, Augustin is entitled
to the maximum award of $2,500 for defendants’ wage statement violations 17 and
an additional $1,500 (30 weeks x $50 per work week) for defendants’ wage notice
violations. In addition, for the eight days of his employment between February 27
to March 8, 2015, Santiago is entitled to $2,000 ($250 x 8 days) for defendants’ wage
statement violations and an additional $400 ($50 x 8 days) for defendants’ wage
notice violations. These amounts total $6,400. However, Augustin’s inquest
submissions only sought $5,000 for defendants’ wage statement and wage notice

27, 2015 in addition to maximum statutory amount of $2,500), adopted by, 2018 WL
2192187 (S.D.N.Y. May 14, 2018); Reyes, 2018 WL 614980, at *8 (maximum
statutory amount of $5,000 awarded for violations on or after February 27, 2015 in
addition to statutory damages for violations prior to February 27, 2015); Cabrera v.
1560 Chirp Corp., No. 15-CV-8194 (TPG) (DF), 2017 WL 1289349, at *13 (S.D.N.Y.
Mar. 6, 2017) (separate statutory damages awarded for wage violations that
occurred both before and after February 27, 2015), adopted by, 2017 WL 1314123
(S.D.N.Y. Apr. 6, 2017).
Because this employment period spanned more than 25 weeks, Augustin is
entitled to wage statement damages in the full statutory amount of $2,500.

17

32

violations. Naydenskiy Decl., Ex. C: Pls. Damage Calcs. at 3. Therefore, the Court
awards him statutory damages in the amount of $5,000.
iii.

Newaz’s Statutory Damages

Newaz was employed from February 6 to March 22, 2015. See Naydenskiy
Decl., Ex. D: Defs. Production DEF0248–50, 258–62. Thus, for the two weeks of his
employment between February 6 and February 26, 2015, Newaz is entitled to $200
($100 x 2 weeks) for defendants’ wage statement violations and an additional $100
($50 x 2 weeks) for defendants’ wage notice violations. In addition, for the five days
of his employment between February 27 to March 22, 2015, Newaz is entitled to
$1,250 ($250 x 5 days) for defendants’ wage statement violations and an additional
$250 ($50 x 5 days) for defendants’ wage notice violations. The Court concludes that
he is therefore entitled to statutory damages in the amount of $1,800. 18

Newaz requests $3,000 in statutory damages in his inquest submissions but this
amount is not supported by the record. Naydenskiy Decl., Ex. C: Pls. Damage Calcs
at 3. “[T]he amount of damages for [wage statement] and notice violations [Newaz]
can recover . . . is dependent on the time periods during which the alleged wage and
notice violations occurred.” Manswell v. Heavenly Miracle Academy Services, Inc.,
No. 14-CV-7114 (MKB) (SMG), 2017 WL 9487194, at *20 (E.D.N.Y. Aug. 23, 2017),
adopted by, 2017 WL 4075180 (E.D.N.Y. Sept. 14, 2017) (quoting Leevson v.
Aqualife USA, Inc., 183 F. Supp. 3d 397, 408 (E.D.N.Y. 2016)). Plaintiffs’ counsel
does not treat Newaz’s employment periods before and after February 27, 2015
differently for purposes of calculating statutory damages for wage statement and
wage notice violations under NYLL. Even so, the calculation he used—$150 per
week in damages for five weeks of employment—does not support a request for
$3,000 in statutory damages.
18

33

iv.

Santiago’s Statutory Damages

Santiago was employed from January 21 to April 18, 2015. See Naydenskiy
Decl., Ex. D: Defs. Production at DEF0244–268. Thus, for the five weeks of his
employment between January 21 and February 26, 2015, Santiago is entitled to
$500 ($100 x 5 weeks) for defendants’ wage statement violations and an additional
$250 ($50 x 5 weeks) for defendants’ wage notice violations. In addition, for the 23
days of his employment between February 27 to April 18, 2015, Santiago is entitled
to the maximum award of $5,000 for defendants’ wage statement violations 19 and
an additional $1,150 ($50 x 23 days) for defendants’ wage notice violations. The
Court concludes that he is therefore entitled to statutory damages in the amount of
$6,900. 20
v.

Sillah’s Statutory Damages

Sillah was employed for 98 days from June 24, 2016 to April 28, 2017. See
Naydenskiy Decl., Ex. D: Defs. Production at DEF0338–380. Thus, he is entitled to
the maximum award of $5,000 for defendants’ wage statement violations 21 and

Because this employment period spanned more than 20 days, Santiago is entitled
to wage statement damages in the full statutory amount of $5,000.
19

Santiago requests $7,200 in statutory damages in his inquest submissions but
this amount is not supported by the record. Plaintiffs’ counsel does not treat
Santiago’s employment periods before and after February 27, 2015 differently for
purposes of calculating statutory damages for wage statement and wage notice
violations under NYLL. Even so, the calculation he used—$150 per week in
damages for 11 weeks of employment—does not support a request for $7,200 in
statutory damages.
20

Because his employment period spanned more than 20 days, Sillah is entitled to
damages in the full statutory amount of $5,000.
34
21

$4,900 (98 days x $50) for their wage notice violations. The Court concludes that
Sillah is therefore entitled to statutory damages in the amount of $9,900 (the
amount sought in his submissions).
vi.

Kim’s Statutory Damages

Kim was employed for 45 days from April 4 to July 2, 2016. See Naydenskiy
Decl., Ex. D: Defs. Production at DEF0324–336. Thus, he is entitled to the
maximum award of $5,000 for defendants’ wage statement violations 22 and $2,250
(45 days x $50) for their wage notice violations. The Court concludes that Kim is
therefore entitled to statutory damages in the amount of $7,250 (the amount sought
in his submissions).
vii.

Uzowuru’s Statutory Damages

Uzowuru was employed for 80 days from March 2 to July 15, 2016. See
Naydenskiy Decl., Ex. D: Defs. Production at DEF0382–390. Thus, he is entitled to
the maximum award of $5,000 for defendants’ wage statement violations 23 and
$4,000 (80 days x $50) for their wage notice violations. The Court concludes that
Uzowuru is therefore entitled to statutory damages in the amount of $9,000 (the
amount sought in his submissions).

Because his employment period spanned more than 20 days, Kim is entitled to
damages in the full statutory amount of $5,000.
22

Because his employment period spanned more than 20 days, Uzowuru is entitled
to damages in the full statutory amount of $5,000.
35
23

5.

Liquidated Damages
a.

Legal Standard

Plaintiffs seek liquidated damages pursuant to both the FLSA and NYLL,
but as the Court is awarding damages under state law, it looks solely to provisions
of NYLL. Compl. ¶¶ 49, 55. Moreover, as is discussed below, courts in this Circuit
no longer are permitted to award liquidated damages under both state and federal
law.
NYLL entitles an employee to liquidated damages “unless the employer
proves a good faith basis for believing that its underpayment of wages was in
compliance with the law.” NYLL § 198(l-a). This good-faith exception, which has
been in effect since November 24, 2009, represents a change from the prior standard
in which employees were entitled to damages only if they showed that the
employer’s violation “was willful.” Inclan v. N.Y. Hospitality Group, Inc., 95
F. Supp. 3d 490, 505 (S.D.N.Y. 2015). “The NYLL was further amended in 2010 to
increase the liquidated damages award from 25% to 100% . . . .” Garcia v. JonJon
Deli Grocery Corp., No. 13-CV-8835 (AT), 2015 WL 4940107, at *5 (S.D.N.Y. Aug.
11, 2015) (citing Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 143 (2d Cir. 2013)); NYLL
§§ 198(l-a), 663(1). The provision of liquidated damages under NYLL is “more
generous than its federal counterpart” as it “applies to unpaid regular wages,
unlawful withholdings from tips, and unpaid ‘spread-of-hours’ wages, in addition to
unpaid overtime.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 91 (E.D.N.Y.
2012) (citing NYLL § 198).
36

“While the wording of the FLSA and NYLL liquidated damages provisions
are not identical, there are no meaningful differences, and both are designed ‘to
deter wage-and-hour violations in a manner calculated to compensate the party
harmed.’” Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (per curiam) (citing
Chuchuca v. Creative Customs Cabinets Inc., No. 13-CV-2506 (RLM), 2014 WL
6674583, at *16 (E.D.N.Y. Nov. 25, 2014); Xochimitl v. Pita Grill of Hell’s Kitchen,
Inc., No. 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *17 (S.D.N.Y. Sept. 8,
2016), adopted by, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016)). The Second Circuit
has recently held that cumulative liquidated damages awards, one under the FLSA
and another under NYLL, are impermissible. See Rana, 887 F.3d at 122 (“We
therefore interpret the NYLL and FLSA as not allowing duplicative liquidated
damages for the same course of conduct.”). “While an award of duplicative
liquidated damages under the FLSA and NYLL is prohibited, courts within this
Circuit have allowed recovery under the statute that provides the greatest relief.”
Rosales v. Low Bid, Inc., No. 17-CV-3183 (ADS) (SIL), 2018 WL 3468710, at *9
(E.D.N.Y. July 3, 2018) (internal citation omitted), adopted by, 2018 WL 3468697
(E.D.N.Y. July 18, 2018).
b.

Application

Given defendants’ default and failure to rebut plaintiffs’ allegations that
NYLL violations were willful, the Court concludes that plaintiffs are entitled to
liquidated damages. Xochimitl, 2016 WL 4704917, at *15 (“Courts deem
defendants’ action willful where they have defaulted and . . . such defaulting
37

defendants will have obviously made no showing of good faith.”) (internal
alterations, citations, and quotation marks omitted). Consequently, the Court
concludes that plaintiffs are entitled to liquidated damages in the amount of 100
percent of unpaid wages, including both minimum and overtime wages.
Plaintiffs are thus entitled to liquidated damages in the following amounts
based on their unpaid wage awards discussed above:
Plaintiffs Unpaid Minimum Wages Unpaid Overtime Compensation Liquidated Damages
Sanchez

$13,946.19

Newaz

$20,210.13

$3,626.81

Augustine

$6,263.94
$653.38

$4,280.19

$315.94

$315.94

Santiago

$1,401.56

$1,401.56

Sillah

$1,431.13

$1,431.13

Kim

$401.63

$401.63

Uzowuru

$596.63

$87.75

$684.38

TOTALS

$21,719.89

$7,005.07

$28,724.96

6.

Interest

Although they sought prejudgment and post-judgment interest in their
prayer for relief in the complaint (Compl. at 13), plaintiffs fail to pursue this relief
in their motion or accompanying memoranda of law (Dkt. Nos. 79, 84). As such, the
request for prejudgment interest is deemed abandoned. See, e.g., Reyes v. Art Tek
Design, Ltd., No. 16-CV-5168 (ADS) (AYS), 2018 WL 614980, at *10 (E.D.N.Y. Jan.
11, 2018), adopted by, 2018 WL 611733 (E.D.N.Y. Jan. 29, 2018); Maldonado v.
Landzign Corp., No. 15-CV-3054 (DRH) (GRB), 2016 WL 4186815, at n.3 (E.D.N.Y.
July 14, 2016); Tacuri v. Nithin Constr. Co., No. 14-CV-2908 (CBA) (RER), 2015 WL
790060, at *12 (E.D.N.Y. Feb. 24, 2015).
38

However, “[u]nlike prejudgment interest, plaintiffs are entitled to postjudgment interest on all money awards as a matter of right.” Tacuri, 2015 WL
790060, at *12 (citations omitted). According to 28 U.S.C. § 1961(a), “[i]nterest
shall be allowed on any money judgment in a civil case recovered in a district court.”
“An award of post-judgment interest is governed by the federal rate as set forth in
28 U.S.C. § 1961.” Tacuri, 2015 WL 790060, at *12 (citing Cappiello v. ICD
Publications, 868 F. Supp. 2d 55, 63–64 (E.D.N.Y. 2012)). Therefore, despite
plaintiffs’ failure to renew this request in their instant motion, the Court awards
plaintiffs post-judgment interest on all sums awarded, including attorneys’ fees and
costs, commencing when the Clerk of the Court enters judgment until the date of
payment. See, e.g., Gamble v. E. Bronx N.A.A.C.P. Day Care Center, Inc., No. 04CV-1198 (KMW) (HBP), 2008 WL 2115237, at *2 (S.D.N.Y. May 15, 2008).
7.

Attorneys’ Fees
a.

Legal Standard

Plaintiffs seek attorneys’ fees in the amount of $22,790 and costs in the
amount of $1,606.04. Pls. Mem. at 8; Naydenskiy Decl. ¶ 6, Ex. E: Naydenskiy Law
Group Time Records and Costs (“Pls. Time Records”) at 24, Dkt. No. 85-11. 24 Both
the FLSA and NYLL are fee-shifting statutes that entitle prevailing plaintiffs to
reasonable attorney’s fees and costs. 29 U.S.C. § 216(b); NYLL § 198(l-a); see,
e.g., Gurung v. Malhotra, 851 F. Supp. 2d 583, 595 (S.D.N.Y. 2012).

Pin cites to Exhibit E of the Naydenskiy Declaration refer to the pagination of
the document as they appear on the ECF filing because the original document does
not have page numbers.
39

24

“In order to determine the appropriate fee award, courts typically start by
determining the so-called lodestar amount, or ‘the product of a reasonable hourly
rate and the reasonable number of hours required by the case.’” Yuquilema v.
Manhattan’s Hero Corp., No. 13-CV-461 (WHP) (JLC), 2014 WL 4207106, at *13
(S.D.N.Y. Aug. 20, 2014), adopted by, 2014 WL 5039428 (S.D.N.Y. Sept. 30, 2014)
(citing Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011)). As a general
matter, “[b]oth the [Second Circuit] and the Supreme Court have held that the
lodestar . . . creates a presumptively reasonable fee.” Gurung, 852 F. Supp. 2d at
596 (quoting Millea, 658 F.3d at 166) (alteration in original); see also Angamarca v.
Pita Grill 7 Inc., No. 11-CV-7777 (JGK) (JLC), 2012 WL 3578781, at *10 (S.D.N.Y.
Aug. 2, 2012), adopted by, Order dated Dec. 14, 2012 (Dkt. No. 39).
Plaintiffs must “document the application [for fees and costs] with
contemporaneous time records . . . specify[ing], for each attorney, the date, the
hours expended, and the nature of the work done.” N. Y. State Assn’n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); see also Scott v. City of
N.Y., 626 F.3d 130, 132 (2d Cir. 2010). “[T]he ‘burden is on the fee applicant to
produce satisfactory evidence—in addition to the attorneys’ own affidavits—that the
requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and reputation.”
Angamarca, 2012 WL 3578781, at *11 (quoting Blum v. Stenson, 465 U.S. 886, 896
n.11 (1984)). A court may also rely on its own knowledge of local comparable rates.
See Yuquilema, 2014 WL 4207106, at *13; Adorno v. Port Authority of N.Y. & N.J.,
40

685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010). Counsel for the prevailing party must
submit evidence in support of the proposed figures and make a good faith effort to
exclude excessive, redundant, or unnecessary hours from the fee request.
Quaratino v. Tiffany & Co., 166 F. 3d 422, 426 n.6 (2d Cir. 2008). Ultimately, a
court’s discretion to set a fee award is broad. Hensley v. Eckethart, 461 U.S. 424,
437 (1989); Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (“We
afford a district court considerable discretion in determining what constitutes
reasonable attorney’s fees in a given case, mindful of the court’s superior
understanding of the litigation and . . . what essentially are factual matter.”)
(internal citations and quotation marks omitted).
i.

Reasonable Hourly Rate

“‘The reasonable hourly rate is the rate a paying client would be willing to
pay,’ bearing in mind that a ‘reasonable, paying client wishes to spend the
minimum necessary to litigate the case effectively.”’ Yuquilema, 2014 WL 4207106,
at *13 (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of
Albany, 522 F.3d 182, 190 (2d Cir. 2008)). “To assess the reasonable rate, the Court
considers the prevailing market rates ‘for similar services by lawyers of reasonably
comparable skill, experience and reputation.’” See Maldonado, 2012 WL 1669341,
at *12 (quoting Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)).
“Courts of this Circuit commonly allow for hourly rates of $300 to $400 for
experienced attorneys or partners in FLSA and NYLL wage-and-hour cases.”
Surdu v. Madison Global, LLC, No. 15-CV-6567 (HBP), 2018 WL 1474379, at *10
41

(S.D.N.Y. Mar. 23, 2018) (collecting cases regarding litigators with one or more
decades of experience). “Associates with at least four years of experience . . . are
typically awarded fees of about $200 to $275 per hour.” Siegel v. Bloomberg
L.P., No. 13-CV-1351 (DF), 2016 WL 1211849, at *6 (S.D.N.Y. Mar. 22, 2016) (citing
Rios v. Louya Corp., No. 14-CV-6800 (GHW), 2015 WL 5918194, at *4 (S.D.N.Y. Oct.
8, 2015) ($225 per hour to attorney with six years’ experience); Kim v. Kum Gang,
Inc., No. 12-CV-6344 (MHD), 2015 WL 3536593, at *2 (S.D.N.Y. June 5, 2015) ($275
hourly rate is reasonable for attorney with four to six years of experience); Agudelo
v. E & D LLC, No. 12-CV-960 (HB), 2013 WL 1401887, at *2 (S.D.N.Y. Apr. 4, 2013)
($200 per hour to associate with three years’ experience in action for unpaid
wages)). Counsel with less experience are typically awarded lower hourly rates
between $150 and $200 per hour. See, e.g., Baltierra v. Advantage Pest Control Co.,
No. 14-CV-5917 (AJP), 2015 WL 5474093, at *13 (S.D.N.Y. Sept. 18, 2015)
(collecting cases). “A reasonable hourly rate for paralegal or legal assistant work is
$75 per hour.” See, e.g., Escobar v. Fresno Gourmet Deli Corp., No. 16-CV-6816
(PAE), 2016 WL 7048714, at *4 (S.D.N.Y. Dec. 2, 2016) (alteration omitted); see also
Santos v. EL Tepeyac Butcher Shop Inc., No. 15-CV-814 (RA), 2015 WL 9077172, at
*2 (S.D.N.Y. Dec. 15, 2015) (same).
In “determining the reasonableness of the requested attorneys’ fees, the
Court considers the quality of the work done by the attorneys.” Harris v.
Fairweather, No. 11-CV-2152 (PKC) (AJP), 2012 WL 3956801, at *8 (S.D.N.Y. Sept.
10, 2012) (reducing fee award where “documents that counsel submitted in
42

connection with the inquest were mediocre, included numerous errors, and failed to
cite to authority for much of the relief requested”), adopted by, 2012 WL 5199250
(S.D.N.Y. Oct. 19, 2012); Poparic v. European Music & Video Store, No. 08-CV-2081,
2009 WL 6318212, at *9 (E.D.N.Y. Dec. 16, 2009) (“[W]hile attorneys with similar
numbers of years experience . . . may occasionally garner higher fees, the sub-par
quality of the legal work in this case warrants a lower hourly rate.”).
Plaintiffs seek to recover fees for work performed by two attorneys: Gennadiy
Naydenskiy and Alex Markhasin; as well as fees for administrative work. Pls.
Mem. at 6–8; Naydenskiy Decl., Ex. E: Pls. Time Records at 22. Naydenskiy
graduated from law school and was admitted to practice in 2013. Pls. Mem. at
6–7. 25 He founded Naydenskiy Law Group in 2014 and his practice focuses on
wage-and-hour litigation. Id. at 7. In support of his requested $350 hourly rate,
Naydenksiy cites to a case in which a partner with more than 20 years of experience
was awarded fees at an hourly rate of $375. Pls. Mem. at 7 (citing Jemine v.
Dennis, 901 F. Supp. 2d 365, 392 (E.D.N.Y. 2010)). Given counsel’s limited
experience as well as numerous errors in his inquest submissions, the Court

Plaintiffs have provided this information solely in their memorandum of law.
They do not provide sworn testimony concerning their legal experience or hourly
rates (despite the fact that Naydenskiy did submit a declaration in support of
plaintiffs’ motion). It is well-settled that “[a]n attorney’s unsworn statements in a
brief are not evidence.” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009). It
would have been preferable for plaintiffs’ counsel to have included all of this factual
information (bar admission dates, hourly rates, etc.) in the form of a declaration or
affidavit. Nonetheless, the Court will reluctantly credit the information provided at
this time to avoid additional delay. Counsel should make any application for fees in
future cases in the proper form.
25

43

reduces his hourly rate to $200. In a similar wage-and-hour default case, this Court
awarded $200 per hour to a solo practitioner who had five years of experience (the
same as Naydenskiy). See Schalaudek v. Chateau 20th Street LLC, No. 16-CV-11
(WHP) (JLC), 2017 WL 729544 (S.D.N.Y. Feb. 24, 2017), adopted as modified, 2017
WL 1968677 (S.D.N.Y. May 11, 2017). Notably, Naydenskiy was recently awarded
a $200 hourly rate in a case in the Eastern District of New York. See Sermuks v.
Orion Caterers, Inc., No. 15-CV-461 (RJD) (RML), 2017 WL 1058479, at *8
(E.D.N.Y. Feb. 2, 2017) (awarding Naydenskiy $200 hourly rate in 2017 for
“relatively straightforward wage and hour default”), adopted by, 2017 WL 1058479
(E.D.N.Y. Feb. 2, 2017).
Markhasin graduated from law school in 2013 and was admitted to practice
in 2014. Pls. Mem. at 7. At all relevant times, he was an associate at Naydenskiy
Law Group and “handle[d] employment law matters” and “transactional matters.”
Id. at 7–8. Markhasin requested a hourly rate of $150. Id. at 7. Given Markhasin’s
level of experience as a junior associate, the Court finds his requested rate
appropriate in this case. See, e.g., Baltierra, 2015 WL 5474093, at *13 (citing
Alvarez v. 215 N. Ave. Corp., No. 13-CV-3629, 2015 WL 3757069, at *22 (S.D.N.Y.
June 19, 2015) (approving junior associate rates of $150 per hour)). The Court also
finds that plaintiffs’ requested rate of $75 per hour for administrative work is
reasonable. Naydenskiy Decl., Ex. E: Pls. Time Records at 22; Escobar, 2016 WL
7048714, at *4.

44

ii.

Reasonable Hours Expended

“After determining the appropriate hourly billing rate, the court calculates
the hours reasonably expended.” Maldonado, 2012 WL 1669341, at *13 (internal
quotation marks omitted). In determining the reasonable number of hours required
by a case, courts consider “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). Courts must make “a conscientious and
detailed inquiry into the validity of the representations that a certain number of
hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d
131, 134 (2d Cir. 1994).
Plaintiffs have provided the Court with their time records, which include
hours expended, dates of work, and brief descriptions of the tasks performed.
Naydenskiy Decl., Ex. E: Pls. Time Records at 20–24. Having carefully reviewed
these records, the Court finds the number of hours for which counsel requests
compensation to be reasonable. Thus, the Court awards counsel the full amount of
hours worked—54.1 hours for Naydenskiy, 20.7 hours for Markhasin, and 10 hours
for administrative work. 26

Although Naydenkiy reports working 58.2 hours in plaintiffs’ memorandum of
law (Pls. Mem. at 7), the actual sum of his hours worked based on plaintiffs’ time
records (Naydenskiy Decl., Ex. E: Pls. Time Records at 20–24) is 54.1. Therefore,
the Court uses 54.1 hours to calculate Naydenskiy’s fees. In addition, Markhasin
reports working 20.6 hours in plaintiffs’ memorandum (Pls. Mem. at 8), but the
actual sum of his hours worked based on plaintiffs’ time records (Naydenskiy Decl.,
Ex. E: Pls. Time Records at 21–22) is 20.7. Despite plaintiffs’ error, the Court uses
20.7 hours to calculate Markhasin’s fees because it is supported by the underlying
time records.
45
26

Thus, the Court awards Naydenskiy Law Group $14,675 in fees, at $200 per
hour for Naydenskiy’s 54.1 hours of work ($10,820), plus $150 per hour for
Markhasin’s 20.7 hours of work ($3,105), as well as $75 per hour for 10 hours of
administrative work ($750).
8.

Costs

Plaintiffs also seek $1,606.04 in costs resulting from the $400 filing fee, $80
to effect service, $487.34 for postage and photocopying, and $638.70 for translations
of the collective notice from English to Spanish and Korean. See Naydenskiy Decl.,
Ex. E: Time Records and Costs at 23–24. “An employee who prevails in a wage-andhour action is entitled to recover costs.” Xochimitl, 2016 WL 4704917, at *22 (citing
29 U.S.C. § 216(b); NYLL § 663(1)). “Costs are defined as ‘those reasonable out-ofpocket expenses incurred by attorneys and ordinarily charged to their clients.’” Id.
(quoting Leblanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998)). “As with
attorneys’ fees, [a] requesting party must substantiate the request for costs.” Guo v.
Tommy’s Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb.
5, 2016); see also, e.g., Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS)
(SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017) (“In the absence of
adequate substantiation, a party is not entitled to recover costs . . . . . Plaintiff has
failed to provide substantiation, such as invoices or receipts, documenting the costs
he now seeks to recover.”), adopted by, 2017 WL 3084408 (E.D.N.Y. July 18, 2017).
Plaintiffs have not submitted receipts for any of the expenses totaling
$1,606.04. While the Court takes judicial notice of the $400 filing fee, see, e.g.,
46

Sevilla v. Nekasa Inc., No. 16-CV-2368 (AJP), 2017 WL 1185572, at *8 (S.D.N.Y.
Mar. 30, 2017) (taking judicial notice of filing fee), it will not award costs for service
of process, postage and photocopying, and translator services, without supporting
documentation. See, e.g., Piedra v. Ecua Rest., Inc., No. 17-CV-3316 (PKC) (CLP),
2018 WL 1136039, at *20 (E.D.N.Y. Jan. 31, 2018) (“the Court cannot simply accept
at face value the other costs that plaintiff’s counsel seeks, such as service of process
and translator services, without additional supporting documentation for those
costs.”), adopted by, 2018 WL 1135652 (E.D.N.Y. Feb. 28, 2018); Lee v. Santiago, No.
12-CV-2558 (PAE) (DF), 2013 WL 4830951, at *14 (S.D.N.Y. Sept. 10, 2013)
(request for costs such as postage and copying denied without additional evidence or
substantiation). Therefore, the Court awards costs in the amount of $400.
III.

Conclusion

For the foregoing reasons, plaintiffs’ motion to strike defendants’ answer and
for default judgment against defendants is granted. Having conducted an inquest,
the Court awards plaintiffs damages in the amount of $102,299.92, attorneys’ fees
and costs in the amount of $15,075, and post-judgment interest on all sums
awarded against defendants.
Specifically, the $102,299.92 in damages should be distributed as follows:
Marco Antonio Sanchez is entitled to $20,210.13 in unpaid wages, an equal amount
in liquidated damages, and $5,000 in statutory damages; Levon Augustin is entitled
to $4,280.19 in unpaid wages, an equal amount in liquidated damages, and $5,000
in statutory damages; Ewad Newaz is entitled to $315.94 in unpaid wages, an equal
47

amount in liquidated damages, and $1,800 in statutory damages; Jeffrey Santiago
is entitled to $1,401.56 in unpaid wages, an equal amount in liquidated damages,
and $6,900 in statutory damages; Mahamaduo Sillah is entitled to $1,431.13 in
unpaid wages, an equal amount in liquidated damages, and $9,900 in statutory
damages; Hyun Jun Kim is entitled to $401.63 in unpaid wages, an equal amount in
liquidated damages, and $7,250 in statutory damages; and Augustine Uzowuvu is
entitled to $684.38 in unpaid wages, an equal amount in liquidated damages, and
$9,000 in statutory damages.
The Clerk is respectfully directed to close Docket No. 78 and mark it as
granted, and to enter judgment for the plaintiffs consistent with this Opinion.
SO ORDERED.
Dated: New York, New York
September 20, 2018

48

Appendix
Sanchez v. Jyp Foods Inc. et al
No. 16-CV-4472 (JLC)
Plaintiffs’ calculations:
Plaintiffs
Marco Antonio Sanchez
Levon J. Augustin
Emad Newaz
Jeffrey Santiago
Mahamaduo Sillah
Hyun Jun Kim
Augustine Uzowuru
Total Damages
Attorneys' Fees and Costs
GRAND TOTAL

Amount Sought
$46,105.72
$14,261.25
$3,631.88
$10,003.12
$12,762.25
$8,053.26
$10,368.75

Basis
Unpaid Wages Liquidated Damages Statutory Damages
$5,000
$20,552.86
$20,552.86
$5,000
$4,630.63
$4,630.63
$315.94
$315.94
$3,000
$7,200
$1,401.56
$1,401.56
$9,900
$1,431.13
$1,431.13
$401.63
$401.63
$7,250
$9,000
$684.38
$684.38

$105,186.23
$24,396.04
$129,582.27

Court’s calculations:
Plaintiffs
Marco Antonio Sanchez
Levon J. Augustin
Emad Newaz
Jeffrey Santiago
Mahamaduo Sillah
Hyun Jun Kim
Augustine Uzowuru
Total Damages
Attorneys' Fees and Costs
GRAND TOTAL

Amount Awarded
$45,420.26
$13,560.38
$2,431.88
$9,703.12
$12,762.26
$8,053.26
$10,368.76

Basis
Unpaid Wages Liquidated Damages Statutory Damages
$5,000
$20,210.13
$20,210.13
$4,280.19
$4,280.19
$5,000
$315.94
$315.94
$1,800
$1,401.56
$1,401.56
$6,900
$1,431.13
$1,431.13
$9,900
$401.63
$401.63
$7,250
$684.38
$684.38
$9,000

$102,299.92
$15,075.00
$117,374.92

49