Santos v. 27 Pizza Cafe Corp. et al

Filing 24

ORDER: Accordingly, it is hereby ORDERED that, by August 5, 2022, Plaintiff shall submit an affidavit or other documentary evidence in support of his request for damages. Plaintiff shall serve Defendants with a copy of the affidavit or other docu mentary evidence in support of his request for damages via overnight courier and file proof of service on the docket by August 8, 2022. It is further ORDERED that Plaintiff serve Defendants with a copy of this Order and file proof of service on the docket by August 4, 2022. SO ORDERED. (Signed by Judge John P. Cronan on 8/2/2022) (jca)

Case 1:22-cv-01114-JPC Document 24 Filed 08/02/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DAVID GUEVARA SANTOS,
:
:
Plaintiff,
:
:
-v:
:
27 PIZZA CAFE CORP. d/b/a PASTAFINA PIZZA and :
HASSAN EBRAHEIM,
:
:
Defendants.
:
:
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22 Civ. 1114 (JPC)
ORDER

JOHN P. CRONAN, United States District Judge:
A hearing on Plaintiff’s motion for default judgment, Dkts. 17-19, currently is scheduled
for August 9, 2022, at 1:00 p.m., Dkt. 11. It is well-established that “[w]hile a party’s default is
deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an
admission of damages.” Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found.
Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) (cleaned up). In other words, “[e]ven 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 damages are not deemed true.” Credit Lyonnais Secs. (USA), Inc. v.
Alcantara, 183 F.3d 151, 155 (2d Cir. 1999); see also Orozco v. San Antonio Bakery, Inc., No. 21
Civ. 2792 (BMC), 2021 WL 4061753, at *1 (E.D.N.Y. Sept. 7, 2021) (“It is equally well settled
that on a motion for a default judgment, the default does not constitute an admission as to the
damages claimed in the complaint. The burden is on the plaintiff to establish, by a reasonable
certainty, an entitlement to the relief requested.” (citations omitted)). “To determine damages, the
court may conduct an inquest, or it may rely upon the affidavits or other documentary evidence
provided by the plaintiff, obviating the need for a hearing on damages.” Id. (citations omitted).

Case 1:22-cv-01114-JPC Document 24 Filed 08/02/22 Page 2 of 2

In support of Plaintiff’s motion for default judgment, Plaintiff’s counsel submitted an
attorney affirmation and accompanying exhibits setting forth the legal basis for entry of default
judgment as to liability against both Defendants, and counsel’s proposed calculation of damages
based solely on Plaintiff’s allegations in the Complaint. See Dkt. 18 ¶¶ 61-91. Plaintiff, however,
has not submitted any evidence in support of his request for damages, including evidence of the
hours that he worked, the wages that he was paid, and Defendants’ violations of the wage notice
and wage statement requirements under the Wage Theft Prevent Act, as codified in sections 195
and 198 of the New York Labor Law.
Accordingly, it is hereby ORDERED that, by August 5, 2022, Plaintiff shall submit an
affidavit or other documentary evidence in support of his request for damages. Plaintiff shall serve
Defendants with a copy of the affidavit or other documentary evidence in support of his request for
damages via overnight courier and file proof of service on the docket by August 8, 2022.
It is further ORDERED that Plaintiff serve Defendants with a copy of this Order and file
proof of service on the docket by August 4, 2022.
SO ORDERED.
Dated: August 2, 2022
New York, New York

__________________________________
JOHN P. CRONAN
United States District Judge

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