CRISOGONO CHAVEZ MONTANO v. MERCY BAKERY CAFE LLC BERR LLC MASAL PLUS CAF SELAHATTIN KARAKUS (2026)

REPORT AND RECOMMENDATION

Plaintiff Crisogono Chavez Montano filed this action on April 24, 2025 against his former employers Defendants Mercy Bakery Cafe LLC d/b/a Masal Cafe (“Masal Cafe”), Berr LLC d/b/a Masal Plus Café (“Masal Plus Café”), and Selahattin Karakus (collectively, “Defendants”). Dkt. No. 1. Among other relief, Plaintiff seeks recovery for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”) and New York Labor Law §§ 190 et seq. and 650 et seq. (“NYLL”), as well as applicable liquidated damages, interest, attorneys’ fees, and costs. Id. ¶ 5.

Before the undersigned, on referral from the Honorable LaShann DeArcy Hall, United States District Judge, is Plaintiff's motion for default judgment against Defendants. Dkt. No. 19; Text Order, dated Dec. 5, 2025. For the reasons set forth below, the undersigned respectfully recommends that Plaintiff's motion be granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from the Complaint (Dkt. No. 1), Plaintiff's default judgment motion and the attachments filed in support of Plaintiff's motion (Dkt. No. 19), and Plaintiff's supplemental declaration (Dkt. No. 22). The facts are assumed true for purposes of this motion. See NYQF Inc. v. Sigue Corp., 781 F. Supp. 3d 104, 112 (E.D.N.Y. 2025) (“In light of [the defendant's] default, a court is required to accept all of [the plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.” (adopting report and recommendation, and quoting Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009))).

Defendant Masal Cafe is a New York domestic LLC that maintains a principal place of business at 1901 Emmons Avenue, Brooklyn, New York 11235. Dkt. No. 1 ¶ 10. Defendant Masal Plus Café is a New York domestic LLC that has a principal place of business at 1809 Emmons Avenue, Brooklyn, New York 11235. Id. ¶ 11. Defendant Selahattin Karakus is sued “individually in his capacity as an owner, officer and/or agent of [Defendants Masal Cafe and Masal Plus Café].” Dkt. No. 1 ¶¶ 12, 19; see also Dkt. No. 19-3 ¶¶ 1, 9 (alleging that Defendant Karakus “owned and operated” Masal Cafe and Masal Plus Café). Plaintiff alleges that Defendant Karakus “possesses or possessed operational control over” and “ownership interest in,” and “controls or controlled significant functions of” Defendants Masal Cafe and Masal Plus Café. Dkt. No. 1 ¶¶ 13, 29.

Plaintiff, a resident of Kings County, New York, worked for Defendants as a “food runner, server and general laborer” from approximately February 2017 to April 2, 2023. Id. ¶¶ 8, 40-41; Dkt. No. 19-3 ¶ 2 (“I was employed by Defendants as a food runner, server and general laborer.”); Dkt. No. 19-3 ¶ 19 (stating that Plaintiff was a “food runner and waiter”); Dkt. No. 22.¹ His work duties required neither discretion nor independent judgment. Dkt. No. 1 ¶ 43. Plaintiff alleges that he was chiefly employed at Defendant Masal Cafe from the relevant time period, but he would “on occasion be sent to Masal Plus Cafe when that location was short-staffed.” Dkt. No. 1 ¶¶ 45-46; Dkt. No. 19-3 ¶¶ 19-20.

Defendant Karakus determined Plaintiff's wages and compensation, established Plaintiff's schedule, directly set and authorized the pay practices at issue, disciplined and had authority to hire and fire employees, and “had the final word on all business decisions at each restaurant including which contracts to enter into on behalf of the business such as the lease and vendor contracts.” Dkt. No. 1 ¶¶ 13-18, 20; see also Dkt. No. 19-3 ¶¶ 4-14 (describing same). Defendant Karakus directed Plaintiff and managers in their daily tasks, and reviewed and controlled the financial records at each restaurant, including payroll records and documents regarding Plaintiff's wages and hours worked. Dkt. No. 1 ¶¶ 21-22.

Plaintiff alleges that Defendant Karakus's actions were “willful[ ] and malicious[ ]” under federal and state law. Id. ¶¶ 23-28; Dkt. No. 19-3 ¶ 14. For example, Defendant Karakus allegedly “ignored the complaints of Plaintiff and other employees” about labor violations, paid employees in cash to hide evidence of wage theft, and “directed his managers and accountants to pay substandard wages to Plaintiff and other employees and to misappropriate gratuities as a practice.” Dkt. No. 1 ¶¶ 23-28.

Plaintiff alleges that Defendants are “employers” within the meaning of the FLSA and NYLL, and that they were “joint employers,” “jointly employed Plaintiff,” and operated as “a joint and integrated enterprise that shares the same operations and ownership.” Id. ¶¶ 30, 32, 34, 38. “Defendant[s] had over 11 employees.” Id. ¶ 39. Each Defendant possessed “substantial control” over Plaintiff's working conditions and held power over the supervision and implementation of pay policies and practices regarding Plaintiff's employment and compensation. Id. ¶ 31. Alternatively, Plaintiff argues, Defendants constitute a “single employer” of Plaintiff. Id. ¶ 33.

“In each year from 2020 to 2024, Defendants, jointly, had a gross annual volume of sales not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated).” Dkt. No. 1 ¶ 35; Dkt. No. 19-3 ¶ 15 (“Based upon my personal observations of each of the restaurants where I worked located at 1901 Emmons Ave Brooklyn, NY 11235 and 1809 Emmons Ave Brooklyn, NY 11235 the gross level of sales for each restaurant on its own exceeded $500,000.00 in each 2021, 2022 and 2023, and combined as a joint enterprise would surely exceed $500,000.00 in gross revenue.”). Plaintiff was individually involved in interstate commerce through the processing of credit card transactions while working for Defendants. Dkt. No. 1 ¶ 37; Dkt. No. 19-3 ¶ 17. Additionally, Defendants were engaged in interstate commerce by dealing with food, utensils, and other supplies that were moved in interstate commerce, and Plaintiff himself regularly handled goods in interstate commerce, such as food, utensils, and cleaning supplies. Dkt. No. 1 ¶¶ 36, 42; Dkt. No. 19-3 ¶ 16.

Plaintiff regularly worked in excess of forty hours per week. Dkt. No. 1 ¶ 44. From February 2017 through August 2022, Plaintiff worked five to six days a week, typically starting at 3:00 p.m. or 5:00 p.m. and ending between 12:00 a.m. and 1:00 a.m.; and Plaintiff sometimes worked from 11:00 a.m. to 10:00 p.m. or from 9:00 a.m. to 5:00 p.m., totaling between forty-two and forty-eight hours per workweek. Dkt. No. 1 ¶ 47; see also Dkt. No. 1 ¶ 48 (providing examples); Dkt. No. 19-3 ¶ 21 (stating Plaintiff typically works “forty-five (45) hours per week”).

Plaintiff alleges that at all relevant times, Defendants never provided Plaintiff with proper wage notices under the FLSA and NYLL. Dkt. No. 1 ¶¶ 63-64; Dkt. No. 19-3 ¶¶ 40-41. Plaintiff notes that Defendants were required to provide Plaintiff with the wage notice in English and Spanish, as Spanish is Plaintiff's primary language. Dkt. No. 1 ¶ 64. “Defendants[’] failure to provide notices and statements compromised Plaintiff's ability to precisely monitor his pay received and hours worked, and his ability to document his income and employment history.” Dkt. No. 1 ¶ 65; Dkt. No. 19-3 ¶ 42.

Plaintiff further alleges that Defendants “failed to honor all the requirements necessary to apply the tip credit to Plaintiff's wages,” even though Plaintiff alleges that he worked as a tipped employee. Dkt. No. 1 ¶¶ 51, 66, 67; Dkt. No. 19-3 ¶ 43. “Defendants failed to give proper written notice or any proper notice that the Defendants intended to diminish [Plaintiff's] wages based on his receipt of tips and/or would pay him to [sic] the minimum wage if his tips did not meet the required level.” Dkt. No. 1 ¶ 67; Dkt. No. 19-3 ¶ 44. Finally, Defendants routinely required Plaintiff to spend more than 20% or two hours of his shift performing non-tipped duties. Dkt. No. 1 ¶ 68; Dkt. No. 19-3 ¶ 45.

Regarding Plaintiff's unpaid wage and overtime allegations, Defendants’ conduct can be divided between two periods: (1) February 2017 to February 6, 2022; and (2) February 7, 2022 to April 2, 2023.

1. Plaintiff's Employment Between February 2017 and February 6, 2022

Plaintiff did not receive a wage notice when he was hired. Dkt. No. 1 ¶ 58; Dkt. No. 19-3 ¶ 34. From February 2017 through February 6, 2022, Defendants paid Plaintiff the same hourly rate for all hours worked, and no overtime premium was paid when Plaintiff worked over forty hours per week. Dkt. No. 1 ¶ 50; Dkt. No. 19-3 ¶ 25. Specifically, from February 2017 through February 2018, Defendants paid Plaintiff $10 per hour. Dkt. No. 1 ¶ 52; Dkt. No. 19-3 ¶ 28. From March 2018 through February 2019, Defendants paid Plaintiff $12 per hour. Dkt. No. 1 ¶ 53; Dkt. No. 19-3 ¶ 29. From March 2019 through February 2020, Defendants paid Plaintiff $14 per hour. Dkt. No. 1 ¶ 54; Dkt. No. 19-3 ¶ 30. From March 2020 through February 6, 2022, Defendant paid Plaintiff $15 per hour. Dkt. No. 1 ¶ 55; Dkt. No. 19-3 ¶ 31.

During this period from February 2017 to February 6, 2022, Defendants confiscated all of Plaintiff's tips. Dkt. No. 1 ¶ 51; Dkt. No. 19-3 ¶ 26. Plaintiff estimates that in this time period, he should have received $200 per week in gratuities that Defendants improperly retrained. Dkt. No. 19-3 ¶ 27. During this same period, Plaintiff did not receive a wage notice when his rate of pay changed, nor did he receive any weekly wage statements. Dkt. No. 1 ¶ 58; Dkt. No. 19-3 ¶ 34.

From February 2017 to February 2018, Defendants paid Plaintiff in cash with no accompanying wage statements. Dkt. No. 1 ¶ 56; Dkt. No. 19-3 ¶ 32. From March 2018 through February 6, 2022, Plaintiff received a portion of his wages by check with the rest of his wages being paid out in cash. Dkt. No. 1 ¶ 57; Dkt. No. 19-3 ¶ 33.

2. Plaintiff's Employment Between February 7, 2022 and April 2, 2023

Beginning February 7, 2022, Defendants changed their pay practices by reducing Plaintiff's hourly rate to $10 per hour, but permitting Plaintiff and other tipped employees to keep tips left by customers. Dkt. No. 1 ¶ 59; Dkt. No. 19-3 ¶ 35. Defendants, however, continued to pay Plaintiff the same hourly rate without an overtime premium when Plaintiff worked over forty hours per week. Dkt. No. 1 ¶ 60; Dkt. No. 19-3 ¶ 36.

At this time, Defendants provided Plaintiff with “inaccurate” wage statements and “a wage notice that showed an overtime rate [Plaintiff] never received.” Dkt. No. 1 ¶ 61; Dkt. No. 19-3 ¶ 38.

Beginning in September 2022 until Plaintiff's employment ended on April 2, 2023, Defendants reduced Plaintiff's work schedule to one or two days a week, and Plaintiff “typically worked seventeen (17) hours per week” during this period. Dkt. No. 1 ¶ 49; Dkt. No. 19-3 ¶ 24.

B. Procedural Background

Plaintiff filed the Complaint on April 24, 2025. Dkt. No. 1. Plaintiff asserts nine causes of action: (1) FLSA overtime violations, (2) FLSA minimum wage violations, (3) NYLL overtime violations, (4) FLSA minimum wage violations, (5) NYLL spread of hours violations,² (6) NYLL notice and recordkeeping violations, (7) NYLL wage statement violations, (8) FLSA unlawful tip retention, and (9) NYLL unlawful tip retention. See Dkt. No. 1 ¶¶ 69-107.

On April 28, 2025, the Court scheduled an in-person initial conference for July 8, 2025. See Dkt. No. 5; Text Order, dated June 2, 2025. On June 13, 2025, Plaintiff served Defendant Karakus by delivering and leaving the Summons, Complaint, and other documents with Defendant Karakus's coworker at Masal Cafe, which is alleged to be Defendant Karakus's actual place of business, and by mailing a copy of the Summons, Complaint, and other documents to the same address on the same day. Dkt. No. 7. On June 16, 2025, Plaintiff served Defendants Masal Cafe and Masal Plus Café via personal delivery to an authorized agent of the New York State Secretary of State. Dkt. No. 6.

On July 6, 2025, the Court adjourned the July 8, 2026 initial conference sine die because no Defendant had appeared and directed Plaintiff to file a status report regarding service of process by July 9, 2025. Text Order, dated July 7, 2025. On July 9, 2025, Plaintiff filed a status report stating that Defendants were served. Dkt. No. 8. On the same day, the Court directed Plaintiff to serve a copy of the Summons and Complaint, as well as a copy of the docket, on Defendants by mail and email, and file proof of compliance by July 18, 2025. Text Order, dated July 9, 2026. The Court also cautioned that Defendants’ failure to appear will result in a default judgment against them. Id. Plaintiff filed proof of service in compliance with the July 9, 2025 Order on July 18, 2025. Dkt. Nos. 9, 10.

On July 21, 2025, the Court directed Plaintiff to file a status report by August 1, 2025. Text Order, dated July 21, 2025. In the August 1, 2025 status report, Plaintiff proposed sending another round of notices by mail and calling Defendants before the end of August 2025 in an attempt to get Defendants to appear in this action. Dkt. No. 11. The Court granted Plaintiff's request, and directed Plaintiff to file another status report by August 29, 2025. Text Order, dated Aug. 1, 2025.

In the August 29, 2025 status report, Plaintiff's counsel represented that he spoke to Defendant Karakus about this action by phone. Dkt. No. 12. On the same day, the Court directed Plaintiff to confer with Defendants and file a status report by September 8, 2025 indicating whether the parties are amenable to a settlement conference. Text Order, dated Aug. 29, 2025.

On September 8, 2025, Plaintiff's counsel represented that Defendant Karakus was not amenable to a settlement conference, and that Plaintiff wishes to pursue a default judgment. Dkt. No. 13 (noting that Plaintiff's counsel “spoke with Defendant Karakus by text and [Defendant Karakus] has not agreed to conduct a settlement conference or to discuss settlement in any form”). On the same day, the Court directed Plaintiff to apply for a Certificate of Default by October 2, 2025. Text Order, dated Sep. 8, 2025. On October 2, 2025, Plaintiff requested a Certificate of Default from the Clerk of Court. Dkt. No. 14. On October 6, 2025, the Clerk of Court entered a Certificate of Default. Dkt. No. 15.

Also on October 6, 2025, the Court directed Plaintiff to move for default judgment by November 12, 2025, and serve Defendants with a copy of the Text Order by October 9, 2025. Text Order, dated Oct. 6, 2025. Having filed no proof of service by October 9, 2025, the undersigned directed Plaintiff to serve the October 6, 2025 Text Order by October 15, 2025. Text Order, dated Oct. 10, 2025. Plaintiff filed proof of service of the October 6, 2026 Text Order on Defendants by mail and email. Dkt. No. 16.

Plaintiff sought two extensions of time to file the default judgment motion, which the Court granted. Dkt. Nos. 17, 18; Text Order, dated Nov. 10, 2025; Text Order, dated Nov. 19, 2025. On November 21, 2025, Plaintiff filed the present default judgment motion. Dkt. No. 19. On December 2, 2025, Plaintiff filed a certificate of service of the default judgment motion. Dkt. No. 20. On December 5, 2025, Judge DeArcy Hall referred the motion to the undersigned for report and recommendation. Text Order, dated Dec. 5, 2025.

On May 8, 2026, the Court directed Plaintiff to clarify his date of employment based on discrepancies in the Complaint. Text Order, dated May 8, 2026. On May 20, 2026, Plaintiff filed a supplemental declaration, stating that Plaintiff was employed from approximately February 2017 through April 2, 2023, and that “[a]ny references to the contrary in the Complaint is a typo [sic].” Dkt. No. 22. Plaintiff served a copy of the supplemental declaration on Defendants on May 21, 2026. Dkt. No. 23.

On May 28, 2026, because Plaintiff's memorandum of law in support of his motion noted a fact regarding Plaintiff's NYLL spread of hours claim that does not appear to be supported in the record, the undersigned directed Plaintiff to file a supplemental declaration. Text Order, dated May 28, 2026. On June 2, 2026, Plaintiff filed a status report, stating that Plaintiff “consent[s] that his claims for spread of hours be omitted from his default judgment application.” Dkt. No. 25.

To date, Defendants have not responded to the Complaint or otherwise appeared in this action, and they remain in default.

II. Service, Jurisdiction, and Venue

The Court “must ․ satisfy itself that it has subject matter and personal jurisdiction before rendering judgment against defendants.” Dumolo v. Dumolo, No. 17-CV-7294 (KAM) (CLP), 2019 WL 1367751, at *4 (E.D.N.Y. Mar. 26, 2019) (citing Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 732 (2d Cir. 1980) (“A judgment entered against parties not subject to the personal jurisdiction of the rendering court is a nullity.”)).

A. Service of Process

“It is axiomatic that to obtain a default judgment against a defendant, the pleading must have been properly served upon him.” Freedom Mortg. Corp. v. Monteleone, 628 F. Supp. 3d 455, 460 (E.D.N.Y. 2022) (adopting report and recommendation); see also Joe Hand Promotions, Inc. v. Necessary Studios, Inc., No. 21-CV-5551 (LDH) (RER), 2022 WL 18858972, at *3 (E.D.N.Y. Dec. 5, 2022) (“Ineffective service-of-process is a ground to deny a motion for default judgment.” (citations omitted) (quoting Happy Homes, LLC v. Jenerette-Snead, No. 15-CV-1788 (MKB) (RML), 2016 WL 6599826, at *3 n.10 (E.D.N.Y. Nov. 7, 2016))), report and recommendation adopted, Text Order, dated Dec. 22, 2022.

Rule 4(h) of the Federal Rules of Civil Procedure, which governs service on a corporation, partnership, or association, states that an entity in a judicial district of the United States must be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e)(1) of the Federal Rules of Civil Procedure allows for service by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Yang v. Fei, No. 24-CV-5055 (RA) (KHP), 2026 WL 114933, at *2 (S.D.N.Y. Jan. 15, 2026) (citing Fed. R. Civ. P. 4(e)(1)).

Under CPLR § 311-a(a), “[s]ervice of process on any domestic ․ limited liability company shall be made by personally delivering a copy personally to ․ to any other agent authorized by appointment to receive process.” N.Y. C.P.L.R. § 311-a(a)(iii); see also McLaughlin v. Onanafe Mgmt. Sols. LLC, No. 22-CV-6792 (PKC)(MMH), 2024 WL 4184485, at *3 (E.D.N.Y. Sep. 14, 2024), report and recommendation adopted, 2024 WL 4355485 (E.D.N.Y. Sep. 30, 2024) (quoting N.Y. C.P.L.R. § 311-a(a)); Oliviadoti v. 290 Riverside Co., LLC, 12-CV-386 (PAE), 2012 WL 1604906, at *4 (S.D.N.Y. May 8, 2012) (quoting N.Y. C.P.L.R. § 311-a(a)). Pursuant to New York Limited Liability Company Law § 301, “[t]he secretary of state shall be the agent of every domestic limited liability company that has filed with the department of state articles of organization making such designation.” Junior-Donohue v. Fudge, No. 23-CV-2474 (VSB), 2023 WL 5152299, at *3 (S.D.N.Y. Aug. 10, 2023) (quoting N.Y. Ltd. Liab. Co. Law § 301(a)); Olivadoti, 2012 WL 1604906, at *4 (“Proper service may also be effectuated through service upon the secretary of state.” (citing N.Y. Ltd. Liab. Co. Law § 301(a)); see also McLaughlin, 2024 WL 4184485, at *3 (“Service of process upon a limited liability company may also be made pursuant to article three of the limited liability company law [i.e., by service on the Secretary of State].” (citing N.Y. C.P.L.R. § 311-a(a))).

Here, on June 16, 2025, Plaintiff served Defendants Masal Cafe and Masal Plus Café by personally delivering and leaving with an authorized agent of the New York State Secretary of State in Albany, New York, two true copies of the Summons and Complaint along with the statutory fee pursuant to N.Y. Bus. Corp. Law § 306(b)(1). Dkt. No. 6. Thus, Defendants Masal Cafe and Masal Plus Café were properly served. See Gustavia Home, LLC v. Hickson, No. 16-CV-3098 (ERK) (SMG), 2017 WL 4334083, at *2 (E.D.N.Y. Aug. 21, 2017) (“56 Somers St. LLC, is a New York limited liability company, and service was made on the Secretary of State, whom 56 Somers designated as its agent for the purpose of service of process. Such service is sufficient to satisfy the procedure which the federal rules prescribe for the service of a summons and complaint.” (citing N.Y. Ltd. Liab. Co. Law § 301(a))).

As for Defendant Karakus, New York Civil Practice Law and Rules (“CPLR”) § 308(2) permits service of process upon an individual “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business,” and “by mailing the summons by first class mail to the person to be served at his or her actual place of business ․, such delivery and mailing to be effected within twenty days of each other.” N.Y. C.P.L.R. § 308(2).

Here, Plaintiff alleges, inter alia, that Defendant Karakus owned and operated Defendant Masal Cafe at 1901 Emmons Avenue, Brooklyn, New York 11235 and that this was his actual place of work. Dkt. Nos. 1 ¶¶ 10, 12, 13, 29; Dkt. No. 19-2 at 2. On June 13, 2025, Plaintiff served Defendant Karakus by delivering and leaving the Summons and Complaint, along with other documents, with Ziya Bostanci, a person of suitable age (36 years old) and discretion, to wit, identified as Defendant Karakus's coworker, at Defendant Karakus's actual place of business at 1901 Emmons Avenue, Brooklyn, New York 11235, and by mailing a copy of the Summons and Complaint to the same address on the same day. Dkt. No. 7.

Finally, Plaintiff served all Defendants with the default judgment motion and various orders from the Court; and notably, Plaintiff's counsel communicated with Defendant Karakus by phone. See, e.g., Dkt. Nos. 9, 10, 11, 12, 13, 16, 20.

Therefore, the undersigned respectfully recommends that Defendants were properly served.

B. Subject Matter Jurisdiction

As discussed above, Plaintiff consents to omit the fifth cause of action, spread of hours, from the default judgment application, and the undersigned respectfully recommends dismissing the fifth cause of action without prejudice. Dkt. No. 25. The following section discusses subject matter jurisdiction for the remaining causes of action: (1) FLSA overtime violations, (2) FLSA minimum wage violations, (3) NYLL overtime violations, (4) FLSA minimum wage violations, (6) NYLL notice and recordkeeping violations, (7) NYLL wage statement violations, (8) FLSA unlawful tip retention, and (9) NYLL unlawful tip retention. Dkt. No. 1 ¶¶ 69-107. As set forth below, the undersigned respectfully recommends that the Court has federal question jurisdiction over all claims arising under the FLSA (Claims 1, 2, and 8), and supplemental jurisdiction over NYLL claims (Claims 3, 4, and 9). The undersigned, however, respectfully recommends that Plaintiff lacks standing to bring the NYLL notice and recordkeeping claim and NYLL wage statement claim (Claims 6 and 7).

Federal district courts have original subject matter jurisdiction over all civil actions “arising under the ․ laws ․ of the United States.” 28 U.S.C. § 1331. Supplemental jurisdiction extends to state law claims that so relate to the claims within the court's original jurisdiction that they form part of the same case or controversy. 28 U.S.C. § 1367(a). Claims “form part of the same case or controversy” when they “derive from a common nucleus of operative fact.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 165 (1997) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)). Claims derive from a common nucleus of operative fact when the facts underlying the claims “substantially overla[p].” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006) (quoting Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000)). The Second Circuit has held that “NYLL and FLSA actions clearly derive from such a common nucleus of operative facts since they arise out of the same compensation policies and practices.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011) (citation omitted).

Here, the Court has federal question jurisdiction over all claims arising under the FLSA, a federal statute. See Jimenez v. Green Olive Inc., 744 F. Supp. 3d 221, 238 (E.D.N.Y. 2024) (adopting report and recommendation, and holding that the court has federal question jurisdiction over the plaintiff's FLSA overtime wage provisions); Sanchez v. Ms. Wine Shop Inc., 643 F. Supp. 3d 355, 370 (E.D.N.Y. 2022) (adopting report and recommendation, and holding that defendants should be held liable for minimum wage violation under the FLSA); Lorenzo v. Dee Mark Inc., No. 23-CV-48 (MKV), 2026 WL 494070, at *7 (S.D.N.Y. Feb. 23, 2026) (discussing how Congress created the cause of action for unlawful tip retention under the FLSA (citing Van Duser v. Tozzer Ltd., No. 23-CV-9329 (AS), 2024 WL 4635495, at *1 (S.D.N.Y. Oct. 31, 2024))).

Moreover, the Court has supplemental jurisdiction over New York state law claims that arise out of the same compensation policies of Defendants, including the NYLL overtime, minimum wage, and tip retention claims. See Shahriar, 659 F.3d at 246 (holding that where federal question jurisdiction exists over minimum wage and overtime claims under the FLSA, supplemental jurisdiction exists over claims of illegal tip deductions and spread of hours violations under the NYLL); see also Jimenez, 744 F. Supp. 3d at 238 (“Here, supplemental jurisdiction clearly extends to the second and third claims because they virtually overlap with Plaintiff's first claim, which seeks to recover for the same violations under the FLSA.”); Zabrodin v. Silk 222, Inc., 702 F. Supp. 3d 102, 113 (E.D.N.Y. 2023) (holding that supplemental jurisdiction exists over claims of “NYLL's spread of hours pay, wage notice, wage statement, and tip regulations under the NYLL” even though they “lack precise analogues in the FLSA” because resolving those “claims requires[s] considering evidence of the hours [Plaintiffs] worked, the rate and method by which [they were] paid, the amounts [they] were paid, and the parties’ records (or lack thereof) on these subjects” (citation omitted)).

Plaintiff, however, lacks Article III standing as to the sixth and seven causes of action, which include violations of state law notice, recordkeeping, and wage statement violations.

“Article III of the Constitution confines the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ ” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024). A case or controversy cannot exist if the plaintiff lacks “standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021); see also Dunston v. Piotr & Lucyna LLC, No. 21-CV-6402 (AMD) (SJB), 2023 WL 5806291, at *4 (E.D.N.Y. July 26, 2023) (“[S]tanding is a threshold matter of justiciability, and if a plaintiff lacks standing to sue, the Court has no choice but to dismiss the plaintiff's claim for lack of subject-matter jurisdiction.” (citation omitted)), report and recommendation adopted, 2023 WL 5806253 (E.D.N.Y. Sep. 7, 2023). “As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What's it to you?’ ” All. for Hippocratic Med., 602 U.S. at 379 (quoting A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983)).

“Like all subject matter issues, standing can be raised sua sponte.” Dunston, 2023 WL 5806291, at *4 (citing Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005)). The plaintiff must demonstrate standing separately for each claim asserted. TransUnion, 594 U.S. at 431; see also Ramirez v. Urion Constr. LLC, 674 F. Supp. 3d 42, 56 (S.D.N.Y. 2023) (“a plaintiff must demonstrate standing for each claim he seeks to press” (citation omitted)). “This principle applies to state law claims under supplemental jurisdiction no less than federal claims.” Ramirez, 674 F. Supp. 3d at 56. Importantly, the exercise of supplemental jurisdiction over NYLL unpaid overtime wages and unpaid wages does not confer supplemental jurisdiction over NYLL claims of failure to provide wage notice or wage statement claims. Guthrie v. Rainbow Fencing Inc., No. 21-CV-5929 (KAM) (RML), 2023 WL 2206568, at *3 (E.D.N.Y. Feb. 24, 2023) (holding that the court cannot “discern or speculate which of the ‘operative facts’ establish an injury to [a plaintiff] on his NYLL wage notice and wage statement claims” (internal quotation marks and citations omitted)), aff'd, 113 F.4th 300 (2d Cir. 2024).

“[T]o establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion, 594 U.S. at 423 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). In Guthrie v. Rainbow Fencing Inc., 113 F.4th 300 (2d Cir. 2024), the Second Circuit held that no standing exists where the complaint “merely alleges that [d]efendants failed to comply” with the notice and recordkeeping and wage statement provisions of NYLL § 195 without offering any theory “as to how [plaintiff] was injured by [d]efendants’ failure to provide the required documents.” Guthrie, 113 F.4th at 309 n.5 (quoting Perez v. E.P.E. Enter. Corp., No. 22-CV-6353 (DG) (JAM), 2024 WL 1632255, at *5 (E.D.N.Y. Apr. 15, 2024), report and recommendation adopted, Text Order, dated June 10, 2024)); see also Ramirez, 674 F. Supp. 3d at 56 (finding no Article III standing where “[p]laintiffs merely allege that [d]efendants ‘failed to provide’ them with required wage notices or wage statements and that, ‘[a]s a result of these violations,’ [p]laintiffs ‘seek’ damages, and ‘[d]efendants are liable’ to [p]laintiffs”).

According to the Second Circuit, “[a] plaintiff-employee may have suffered an injury-in-fact sufficient to establish standing when, for example, inaccurate or noncompliant notices prevented the employee from obtaining full payment in a timely fashion. But the plaintiff-employee cannot ‘assume[ ] [t]his conclusion without analysis’ or rely on ‘speculation and conjecture.’ ” Guthrie, 113 F.4th at 309 (quoting Quieju v. La Jugueria Inc., No. 23-CV-264 (BMC), 2023 WL 3073518, at *2 (E.D.N.Y. Apr. 25, 2023)). In Quieju, the District Court rejected the following argument as insufficient to confer standing:

if defendants had given him the required documents, those documents would have informed him that he was not being paid his required wages. Enlightened by that knowledge, plaintiff then would have demanded his required wages. Having made such a demand, defendants would have then paid him his required wages, and plaintiff would have avoided the injury he suffered by the failure to properly pay him.

Quieju, 2023 WL 3073518, at *2. The Court held that this “ ‘speculative chain of possibilities does not establish that [plaintiff's] injury’ was ‘fairly traceable’ to defendants’ alleged violations of [NYLL] § 195.” Id. (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 (2013)).

Here, no standing exists over Plaintiff's sixth and seven causes of action. Plaintiff alleges that from February 2017 to February 6, 2022, “Plaintiff did not receive a wage notice when he was hired or when his rate of pay changed, or with accurate weekly wage statements.” Dkt. No. 1 ¶ 58; see also Dkt. No. 19-3 ¶ 34. Beginning on February 7, 2022, Defendant changed their pay practices; servers and other tipped employees received gratuities left by customers, but Defendants reduced Plaintiff's hourly rate to $10 per hour. Dkt. No. 1 ¶ 59; Dkt. No. 19-3 ¶ 35. In the latter period, Defendants furnished Plaintiff with “inaccurate wage statements along with a wage notice that showed an overtime rate he never received.” Dkt. No. 1 ¶ 61; Dkt. No. 19-3 ¶ 38. But the allegation that Defendants failed to comply with NYLL notice, recordkeeping, and wage statement provisions do not confer standing because “Plaintiff has offered no theory as to how he was injured by Defendants’ failure to provide the required documents.” See Guthrie, 113 F.4th at 309 n.5 (quoting Perez, 2024 WL 1632255, at *5).

To be clear, Plaintiff does allege that “Defendants[’] failure to provide notices and statements compromised Plaintiff's ability to precisely monitor his pay received and hours worked, and his ability to document his income and employment history.” Dkt. No. 1 ¶ 65; Dkt. No. 19-3 ¶ 42. Despite Plaintiff's inability to “monitor” and “document,” however, Plaintiff does not proffer how the “inaccurate or noncompliant notices prevented [him] from obtaining full payment of wages in a timely fashion,” and any argument to the contrary can only be “speculation and conjecture” at best. Guthrie, 113 F.4th at 309 (citing Quieju, 2023 WL 3073518, at *2). Indeed, the present default judgment motion does not seek damages for the NYLL notice and recordkeeping violations and NYLL wage statement violation. Dkt. No. 19-2 at 11-16; Dkt. No. 19-7; Dkt. No. 19-10.

Therefore, Plaintiff does not have standing to bring the sixth and seventh causes of action under the NYLL. The undersigned respectfully recommends that Plaintiff's sixth and seventh causes of action be dismissed without prejudice.

C. Personal Jurisdiction

The Second Circuit has held that “a court may raise personal jurisdiction sua sponte when a defendant has failed to appear.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 n.7 (2d Cir. 2010) (citation omitted); see also Martinez v. Golden Flow Dairy Farms Inc., No. 21-CV-2421 (ENV) (MMH), 2025 WL 3769328, at *3 (E.D.N.Y. Dec. 31, 2025) (“[B]efore a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant[s].” (quoting Sinoying Logistics Pte, 619 F.3d at 213)), report and recommendation adopted, Text Order, dated Feb. 11, 2026. District courts within this Circuit have held that “[p]ersonal jurisdiction is a necessary prerequisite to entry of a default judgment.” Burns v. Scott, 635 F. Supp. 3d 258, 273 (S.D.N.Y. 2022) (citation omitted); see also Ryzhov v. Malofeyev, No. 23-CV-1072 (JMF), 2024 WL 3498391, at *1 (S.D.N.Y. July 22, 2024) (denying motion for default judgment where personal jurisdiction was lacking). In an abundance of caution, the undersigned will analyze personal jurisdiction.

Plaintiff's jurisdictional allegations are “construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor.” Wiggins v. Unilever U.S., Inc., 684 F. Supp. 3d 127, 137 (S.D.N.Y. July 26, 2023) (citation modified) (discussing the standard in the context of a motion to dismiss for lack of personal jurisdiction). “Where a court does not hold an evidentiary hearing on the jurisdictional question, it may, nevertheless, consider matters outside the pleadings.” Id. (quoting Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 86 (2d Cir. 2013)).

To properly exercise personal jurisdiction, three requirements must be met. NLRB v. Universal Smart Conts., LLC, 166 F.4th 304, 314 (2d Cir. 2026) (Sullivan, J.) (citations omitted). First, “the plaintiff's service of process upon the defendant must have been procedurally proper.” Id. (citations omitted). Second, “there must be a statutory basis for personal jurisdiction that renders such service of process effective.” Id. (citation omitted). Finally, “the district court's assertion of personal jurisdiction must otherwise ‘comport with constitutional due process principles.’ ” Id. (citation omitted).

As to the first prong, the undersigned has already respectfully recommended a finding that service on Defendants was proper in this action.

As to the second prong, the available statutory bases in federal courts are enumerated by Federal Rule of Civil Procedure 4(k). Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Rule 4(k)(1)(A) provides that “[s]erving a summons ․ establishes personal jurisdiction over a defendant ․ who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Id. (footnote omitted) (citing Fed. R. Civ. P. 4(k)(1)(A)). Accordingly, “[a] district court's personal jurisdiction is determined by the law of the state in which the court is located.” Spiegel v. Schulmann, 604 F.3d 72, 76 (2d Cir. 2010); see also Licci, 673 F.3d at 59-60 (quoting Spiegel, 604 F.3d at 76). Thus, the Court should look to New York law in determining the availability of personal jurisdiction over Defendants.

“There are two types of personal jurisdiction: specific and general.” Monbo v. Nathan, 623 F. Supp. 3d 56, 133 (E.D.N.Y. 2022) (citation omitted). “General jurisdiction permits a court to exercise personal jurisdiction over a defendant regardless of whether the underlying claim has a connection to the forum.” Id. (citation omitted). “Specific jurisdiction requires a connection between the forum exercising jurisdiction over the defendant and the underlying controversy that gave rise to the claim.” Id. (citation omitted). Under New York law, courts exercise general jurisdiction pursuant to CPLR § 301, and specific jurisdiction pursuant to CPLR § 302. Id.

As for Defendants Masal Cafe and Masal Plus Café, CPLR § 301 permits courts to exercise “such jurisdiction over persons, property, or status as might have been exercised heretofore.” CPLR § 301. “Courts have exercised general personal jurisdiction over a limited liability company where the company has been organized under the laws of the forum state or maintains its principal place of business in the forum state.” Arthur v. Orchestrate Bus. LLC, No. 24-CV-2985 (MMG), 2025 WL 2201067, at *4 (S.D.N.Y. Aug. 1, 2025) (alteration in original) (citing, inter alia, McLaughlin, 2024 WL 4184485, at *5).

Here, the undersigned respectfully recommends that the Court may exercise general jurisdiction over Defendants Masal Cafe and Masal Plus Café because they are New York State domestic LLC with principal places of business in Brooklyn, New York. Dkt. No. 1 ¶¶ 10, 11; see also McLaughlin, 2024 WL 4184485, at *4 (“The Court has general jurisdiction over Onanafe because it is a New York limited liability company doing business in New York.” (citing Francis v. Ideal Masonry, Inc., No. 16-CV-2839 (NGG) (PK), 2018 WL 4292171, at *3 (E.D.N.Y. Aug. 3, 2018), report and recommendation adopted, 2018 WL 4288625 (E.D.N.Y. Sep. 7, 2018)).

As for Defendant Karakus, the Complaint is silent as to whether he is domiciled in New York. But even assuming that he is not domiciled in New York, the undersigned respectfully requests that the Court may exercise specific jurisdiction over him.

“[P]ursuant to New York's long-arm statute, CPLR 302(a), a court ‘may exercise personal jurisdiction over any non-domiciliary ․ who in person or through an agent ․ transacts any business within the state,’ as long as the Plaintiff's ‘cause of action aris[es] from’ that ‘transact[ion].’ ” Flores v. Andy Constr. NY Inc., No. 22-CV-6486 (OEM) (JMW), 2024 WL 2940191, at *6 (E.D.N.Y. Apr. 14, 2024) (quoting CPLR § 302(a)), report and recommendation adopted, 2024 WL 3914859 (E.D.N.Y. Aug. 23, 2024). Accordingly, “[t]o exercise specific jurisdiction through New York's long-arm statute, ‘two requirements must be met: (1) The defendant must have transacted business within the state; and (2) the claim asserted must arise from that business activity.’ ” Id. (footnote and citation omitted). CPLR § 302(a) requires that claims asserted “aris[e] from any of the acts” that provide the basis for exercising jurisdiction, which means there must be “some articulable nexus between the business transacted and the cause of action sued upon.” Id. (citations omitted). Further, “personal jurisdiction must be determined on a claim-by-claim basis.” Id. (citations omitted).

Here, the Court may exercise specific jurisdiction over Defendant Karakus because he transacted business in New York as the owner and operator of Defendants Masal Cafe and Masal Plus Café, and his conduct as owner and operator gave rise to Plaintiff's FLSA and NYLL claims. Plaintiff alleges that Defendant Karakus exercised significant operational control over the two corporations, including the ability to determine wages and compensation, establish work schedules, set and authorize pay practices, and hire and fire employees. Dkt. No. 1 ¶¶ 13-18, 20-22, 29. Plaintiff further alleges that Defendant Karakus “ignored the complaints of Plaintiff” about labor violations, paid in cash to hide evidence of wage theft, and “directed his managers and accountants to pay sub-standard wages to Plaintiff ․ and to misappropriate gratuities as a practice.” Id. ¶¶ 23-28. Therefore, the Court may exercise personal jurisdiction over Defendant Karakus under CPLR § 302(a) because Defendant Karakus transacted business within New York state, and the FLSA and NYLL claims asserted arise from that business activity. See Flores, 2024 WL 2940191, at *6 (“Thus, because Plaintiff claims violations of the FLSA and NYLL related to overtime wages and wage statements and notices in New York, there is a basis for exercise of this Court's jurisdiction.”); see also Zabrodin, 702 F. Supp. 3d at 115 (“Plaintiffs do not allege Kurbanov's citizenship; however, they allege that he transacted business within New York as the owner and manager of Silk Restaurant, which is the conduct that gave rise to Plaintiffs’ claims against him ․ Thus, the Court may exercise specific personal jurisdiction over him.” (first citing CPLR § 302(a)(1); and then citing Ford v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 359-60 (2021))).

Last, the Court must determine whether exercise of jurisdiction comports with federal constitutional requirements of due process. Dow Jones & Co., Inc. v. Perplexity AI, Inc., 797 F. Supp. 3d 305, 330-31 (S.D.N.Y. 2025). “Due process considerations require that the defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Id. at 330 (citations omitted). First, a court evaluates whether a defendant has “sufficient minimum contacts” with the forum, and second, whether, in light of various factors, the exercise of jurisdiction would “comport with fair play and substantial justice.” Id. at 330-31 (citations omitted).

As to minimum contacts, “[g]enerally, if a defendant meets the contacts requirement under the long-arm statute, it also meets the minimum contacts requirements under the constitutional analysis.” Id. at 331 (citing Am. Girl, LLC v. Zembrka, 118 F.4th 271, 279 (2d Cir. 2024)). As discussed above, Plaintiff has met the requirements of New York's long arm statute, CPLR § 302, as to Defendant Karakus and, thus, Plaintiff has met the minimum contacts requirements under the constitutional analysis.

As to fair play and substantial justice, the Court considers the following factors:

[(i)] the burden that the exercise of jurisdiction will impose on the defendant; [(ii)] the interests of the forum state in adjudicating the case; [(iii)] the plaintiff's interest in obtaining convenient and effective relief; [(iv)] the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and [(v)] the shared interest of the states in furthering substantive social policies.

Dow Jones & Co., 797 F. Supp. 3d at 331 (citation omitted); see also Agric. Logistics LLC v. Survival Transp. Inc., No. 22-CV-873 (MKB) (JMW), 2024 WL 4250354, at *8 (E.D.N.Y Aug. 7, 2024) (same), report and recommendation adopted, 2024 WL 4116684 (E.D.N.Y. Sep. 9, 2024). When a defendant has the requisite minimum contacts with the forum state, it may still defeat jurisdiction on due process grounds if it can “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Dow Jones & Co., 797 F. Supp. 3d at 331 (citation omitted).

As an initial matter, the Second Circuit recognized that it would be “rare” and “unusual” for the exercise of specific jurisdiction to “offend traditional notions of fair play and substantial justice” where a defendant transacted business in New York and the asserted claim arose from that business activity under CPLR § 302(a)(2). Licci, 732 F.3d at 170. Furthermore, Defendant Karakus, who has defaulted, cannot present any compelling case that would render jurisdiction unreasonable. See Agric. Logistics, 2024 WL 4250354, at *8 (stating that, “given Defendants’ default, [the Court] has not been provided, nor does it find, any reason why exercise of specific jurisdiction would be unreasonable”).

In any event, the factors as to fair play and substantial justice weigh in Plaintiff's favor. As to the first factor, the burden on Defendant Karakus is low “given modern advances in communication and transportation.” Dow Jones & Co., 797 F. Supp. 3d at 332 (citations omitted); see also Agric. Logistics, 2024 WL 4250354, at *8 (“the burden on Defendant, if any, to litigate here does not weigh strongly in its favor because ‘the conveniences of modern communication and transportation ease what would have been a serious burden only a few decades ago’ ”). Second, “New York has significant interest in adjudicating the rights of individuals employed in New York.” Henao v. Parts Auth., LLC, 557 F. Supp. 3d 490, 498 (S.D.N.Y. 2021). Third, Plaintiff has a significant interest in obtaining convenient and effective relief. Id. (“Plaintiffs have significant interest in obtaining convenient and effective relief, which would be inefficient if they are required to sue Parts Authority in New York and Browne in a separate forum.”). Fourth, resolution of the claims in New York would be most efficient because Plaintiff was employed in New York. Id. (stating that “resolution of the claims in New York would be the most efficient resolution because the majority of Plaintiffs were employed in New York”). Finally, “the states have a shared interest in ensuring employers follow national and state wage law.” Id.

Accordingly, the undersigned respectfully recommends that the Court may exercise personal jurisdiction over Defendants.

D. Venue

A civil action may be brought in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). Here, venue is proper as to all Defendants under 28 U.S.C. § 1391(b)(2) because the Complaint alleges “all or a substantial part of the events or omissions giving rise to the claims occurred in this district, Defendants operate their business in this district, and Plaintiff was employed by Defendants in this district.” Dkt. No. 1 ¶ 7; see also id. ¶ 46 (describing how Plaintiff was mainly employed at Masal Cafe, located in this District, and would be sent “on occasion ․ to Masal Plus Cafe[, also in this District,] when that location was short-staffed”).

Accordingly, the undersigned respectfully recommends that venue is proper in this District.

III. Procedural Compliance with Federal Rules and Local Civil Rules

“A motion for default judgment will not be granted unless the party making the motion adheres to all of the applicable procedural rules.” Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Eng'rs v. Allstate Mapping & Layout, LLC, No. 22-CV-1831 (PKC) (TAM), 2023 WL 1475389, at *1 (E.D.N.Y. Feb. 2, 2023) (quoting Century Surety Co. v. Adweek, No. 16-CV-335 (ENV) (PK), 2018 WL 10466835, at *1 (E.D.N.Y. Jan. 9, 2018)). “Local rules have the force of law, as long as they do not conflict with a rule prescribed by the Supreme Court, Congress, or the Constitution.” Fin. Servs. Vehicle Tr. v. Osmanaj, No. 22-CV-7491 (RPK) (CLP), 2023 WL 7000935, at *2 (E.D.N.Y. Aug. 15, 2023) (internal quotation marks and citation omitted), report and recommendation adopted, Text Order, dated Sep. 11, 2023.

Local Civil Rule 55.2 provides, in relevant part,

(a) In addition to following the applicable procedures in either (b) or (c) below, any party seeking a default judgment must file:

(1) an affidavit or declaration showing that:

(A) the clerk has entered default under Local Civil Rule 55.1;

(B) the party seeking default judgment has complied with the Servicemembers Civil Relief Act, 50a U.S.C. § 521; and

(C) the party against whom judgment is sought is not known to be a minor or an incompetent person ․

(2) if proceeding by motion, the papers required by Local Civil Rule 7.1, including a memorandum of law, a proposed order detailing the proposed judgment to be entered; and

(3) a certificate of service stating that all documents in support of the request for default judgment, including the “Clerk's Certificate of Default” and any papers required by this rule, have been personally served on, or mailed to the last known residence (for an individual defendant) or business address (for other defendants) of, the party against whom default judgment is sought.

․

(c) By the Court (available under Fed. R. Civ. P. 55(b)(2)). In addition to the matters required in section (a), above, the party must file a statement of damages, sworn or affirmed to by one or more people with personal knowledge, in support of the request, showing the proposed damages and the basis for each element of damages, including interest, attorney's fees, and costs.

Loc. Civ. R. 55.2.

Here, Plaintiff properly obtained the certificate of default against Defendants under Local Civil Rule 55.2(a)(1)(A). Dkt. No. 15. As to Local Civil Rule 55.2(a)(1)(B), Plaintiff has satisfied the requirements of the Servicemembers Civil Relief Act (“SCRA”). Defendants Masal Cafe and Masal Plus Café are corporate entities such that the SCRA requirement does not apply to them. See Loc. 1992 Pension Fund v. All Serv. Equip. Corp., No. 22-CV-2522 (HG) (JMW), 2023 WL 11868244, at *3 (E.D.N.Y. July 28, 2023) (noting that the SCRA's affidavit requirement does not apply to corporate defendants), report and recommendation adopted, Text Order, dated Aug. 18, 2023. As for Defendant Karakus, Plaintiff filed a report from the Department of Defense Manpower Data Center—an entity that hosts the SCRA verification website—certifying that he was not in active military service as of the filing Plaintiff's motion. Dkt. No. 19-9; see also Wilmington Savs. Fund Soc'y FSB v. Fernandez, 712 F. Supp. 3d 324, 333 (E.D.N.Y. 2024) (holding that “[a]dequate proof might consist of a report from the Department of Defense's website obtained after the defendant's default certifying that the defendant is not in active military service.”); ADI Glob. Distrib. v. Green, No. 20-CV-3869 (AMD) (JMW), 2023 WL 3355049, at *3 (E.D.N.Y. Apr. 24, 2023) (“Certification ․ of a defendant's military status [under 50 U.S.C. § 3931(A)] can be obtained from the Department of Defense's Servicemembers Civil Relief Act website.” (citation omitted)), report and recommendation adopted, 2023 WL 3346499 (E.D.N.Y. May 10, 2023). As to Local Civil Rule 55.2(a)(1)(C), Defendant Karakus is neither a minor nor an incompetent person. Dkt. No. 14-1 ¶ 7.

Next, Plaintiff complied with the procedural requirements of Local Civil Rules 55.2(a)(2) and 7.1. Local Civil Rule 7.1 requires that a plaintiff attach to a motion for default judgment: (1) a notice of motion specifying the applicable rules or statutes pursuant to which the motion is brought and specifying the relief sought; (2) a memorandum of law setting forth the cases and other authorities relied upon in support of the motion; (3) supporting affidavits and exhibits containing any factual information and portions of the record necessary for the decision of the motion; and (4) a certificate of compliance with the word count requirements of Local Civil Rule 7.1(c). See Loc. Civ. R. 7.1(a), (c). Local Civil Rule 55.2(a)(2) requires a proposed order detailing the proposed judgment to be entered. Loc. Civ. R. 55.2(a)(2).

Plaintiff complied with the procedural requirement of Local Civil Rule 7.1 by filing a notice of motion (Dkt. No. 19), an affidavit, declaration, and exhibits in support of the motion (Dkt. Nos. 19-1, 19-3–19-9), and a memorandum of law (Dkt. No. 19-2). Plaintiff also included a word count certification in the memorandum of law pursuant to Local Civil Rule 7.1(c). Dkt. No. 19-2 at 20. Further, Plaintiff filed a proposed order detailing the proposed judgment to be entered in compliance with Local Civil Rule 55.2(a)(2). Dkt. No. 19-10. Thus, Plaintiff complied with Local Civil Rules 55.2(a)(2) and 7.1.

Pursuant to Local Civil Rule 55.2(a)(3), Plaintiff filed a certificate of service stating that all documents in support of the request for default judgment, including the “Clerk's Certificate of Default” and any papers required by this rule, have been mailed to Defendants’ business addresses. Dkt. No. 19-6 (Clerk's Certificate of Default); Dkt. No. 20 (affirmation of service of “documents styled ‘Notice of Motion for Default Judgment’ and all accompanying exhibits’ ”).

Finally, Plaintiff has filed sufficient documentation to fulfill Local Rule 55.2(c)’s requirement to “file a statement of damages, sworn or affirmed to by one or more people with personal knowledge, in support of the request, showing the proposed damages and the basis for each element of damages, including interest, attorney's fees, and costs.” Loc. Civ. R. 55.2(c); Dkt. No. 19-3 ¶¶ 21-48 (Plaintiff's declaration stating damages); Dkt. No. 19-7 (setting forth the damages calculation chart); Dkt. No. 19-8 (contemporaneous billing records and expenses for attorney's fees and costs).

Accordingly, the undersigned respectfully recommends that the Court find that Plaintiff has satisfied Local Civil Rules 7.1 and 55.2.

IV. Entry of Default Judgment

As the United States Court of Appeals for the Second Circuit has explained,

Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment. The first step is to obtain an entry of default. When a party against whom affirmative relief is sought has failed to plead or otherwise defend, a plaintiff may bring that fact to the court's attention. In such circumstances Rule 55(a) empowers the clerk of court to enter a default. The next step requires the plaintiff to seek a judgment by default under Rule 55(b). Rule 55(b)(1) allows the clerk to enter a default judgment if the plaintiff's claim is for a sum certain and the defendant has failed to appear. In all other cases Rule 55(b)(2) governs. It requires a party seeking a judgment by default to apply to the court for entry of a default judgment.

Priestley v. Headminder, Inc., 647 F.3d 497, 504-05 (2d Cir. 2011). To “enter or effectuate judgment,” a court is empowered to: “(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed. R. Civ. P. 55(b)(2).

“A threshold question before reaching liability or damages is whether [the defaulting defendant's] conduct is sufficient to warrant default judgment being entered.” Annuity, Pension, Welfare & Training Funds of the Int'l Union of Operating Eng'rs v. NAMOW, Inc., No. 17-CV-1469 (ARR) (SJB), 2018 WL 1440545, at *2 (E.D.N.Y. Feb. 28, 2018), report and recommendation adopted, 2018 WL 1440542 (E.D.N.Y. Mar. 22, 2018). The Second Circuit “generally disfavor[s]” default judgment and has repeatedly expressed a “preference for resolving disputes on the merits.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993) (citation omitted). Nevertheless, “in evaluating a motion for default judgment, a court accepts as true the plaintiff's well-pleaded factual allegations, except those relating to damages.” BASF Corp., 2023 WL 8853704, at *2 (first citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); and then citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)). The plaintiff bears the burden of alleging “specific facts,” rather than “mere ‘labels and conclusions’ ” or a “formulaic recitation of the elements,” so that a court may infer a defendant's liability. Cardoza v. Mango King Farmers Mkt. Corp., No. 14-CV-3314 (SJ) (RER), 2015 WL 5561033, at *3 (E.D.N.Y. Sep. 1, 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), report and recommendation adopted, 2015 WL 5561180 (E.D.N.Y. Sep. 21, 2015).

The decision to grant or deny a motion for default judgment is “left to the sound discretion of a district court.” Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *3 (E.D.N.Y. Sep. 29, 2023) (quoting Shah v. N.Y. State Dep't of Civ. Serv., 168 F.3d 610, 615 (2d Cir. 1999)), report and recommendation adopted, Text Order, dated Nov. 30, 2023. A court “possesses significant discretion” in granting a motion for default judgment, “including [determining] whether the grounds for default are clearly established.” Chen v. Oceanica Chinese Rest., Inc., No. 13-CV-4623 (NGG) (PK), 2023 WL 2583856, at *7 (E.D.N.Y. Mar. 21, 2023) (adopting report and recommendation) (citation omitted). The Court may also “consider numerous factors, including whether a plaintiff has been substantially prejudiced by the delay involved and whether the grounds for default are clearly established or in doubt.” Franco v. Ideal Mortg. Bankers, Ltd., No. 07-CV-3956 (JS) (AKT), 2010 WL 3780972, at *2 (E.D.N.Y. Aug. 23, 2010) (citation modified), report and recommendation adopted, 2010 WL 3780984 (E.D.N.Y. Sep. 17, 2010).

As the Second Circuit has observed, “[t]hese widely accepted factors are: (1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented.” Enron Oil Corp., 10 F.3d at 96 (citations omitted); see also Trico Tarek Factory v. Jetax Inc., Nos. 24-CV-3731 (JMA) (ST), 24-CV-2409 (ST), 2025 WL 2625376, at *29 (E.D.N.Y Sep. 11, 2025) (“Notably, the Enron factors are used not only to determine whether to set aside an entry of default or default judgment, but also in deciding whether granting a default judgment is warranted in the first instance.” (citing Grp. One Ltd. v. GTE GmbH, 625 F. Supp. 3d 28, 54-61 (E.D.N.Y. 2022))), report and recommendation adopted, No. 24-CV-3731 (JMA) (ST), 2025 WL 2782485 (E.D.N.Y. Sep. 30, 2025). “Willfulness ‘is the most significant factor’ but is not dispositive.” Henry v. Oluwole, 108 F.4th 45, 52 (2d Cir. 2024) (citations omitted); see also Grp. One, 625 F. Supp. 3d at 55 (“However, in neither case did the court find default judgment appropriate based solely on willfulness.” (citations omitted)). “Other relevant equitable factors may also be considered, for instance, whether the failure to follow a rule of procedure was a mistake made in good faith and whether the entry of default would bring about a harsh or unfair result.” Enron Oil Corp., 10 F.3d at 96 (citation omitted).

Here, as to the first factor, Defendants’ failure to respond to the Complaint demonstrates the willfulness of their default. “ ‘[W]illfulness,’ in the context of a default, refer[s] to conduct that is more than merely negligent or careless,” but is instead “egregious and ․ not satisfactorily explained.” Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 186 (2d Cir. 2015) (citation omitted). As described above, Defendants were properly served with the Complaint. Notwithstanding that service, Defendants did not respond to the Complaint, did not appear, and have not in any way attempted to defend this action, thus constituting willfulness in the context of default judgment. See, e.g., Krevat v. Burgers to Go, Inc., No. 13-CV-6258 (JS) (AKT), 2014 WL 4638844, at *6 (E.D.N.Y. Sep. 16, 2014) (adopting report and recommendation and holding that defendant's failure to appear demonstrated willfulness of default); Sola Franchise Corp. v. Solo Salon Studios Inc., No. 14-CV-946 (JS) (AKT), 2015 WL 1299259, at *6 (E.D.N.Y. Mar. 23, 2015) (adopting report and recommendation and holding that “[d]efendant's failure to answer the Complaint and to respond to the instant motion is sufficient to establish willfulness” (citations omitted)). Although Plaintiff has repeatedly served Defendants with filings throughout this case, Defendants have consistently failed to respond or appear. Such brazen disregard for the Court and the present litigation militate in favor of the first factor being satisfied.

As to the second factor, the Second Circuit has held that “[w]hether a defense is meritorious ‘is measured not by whether there is a likelihood that it will carry the day, but whether the evidence submitted, if proven at trial, would constitute a complete defense.’ ” In re Orion HealthCorp, 95 F.4th 98, 105 (2d Cir. 2024) (quoting Enron Oil Corp., 10 F.3d at 98). The Court cannot conclude that Defendants have a meritorious defense to the allegations in the Complaint because Defendants did not appear in this case to proffer any defenses. See Korzeniewski v. Sapa Pho Vietnamese Rest. Inc., No. 17-CV-5721 (MKB) (SJB), 2019 WL 312149, at *3 (E.D.N.Y. Jan. 3, 2019) (“[T]he Court cannot conclude there is any meritorious defense to the allegations because [the defendant] did not appear nor present evidence of such a defense.”), report and recommendation adopted, 2019 WL 291145 (E.D.N.Y. Jan. 23, 2019). This factor therefore weighs in favor of entering default judgment because the allegations in Plaintiff's Complaint are deemed admitted. See Sola Franchise Corp., 2015 WL 1299259, at *6 (“Here, Defendant has not interposed an answer, nor has it otherwise presented any defense to the Court. These factors weigh in favor of granting a default judgment, and the allegations in Plaintiffs’ Complaint are deemed admitted.” (citation omitted)).

As to the third factor, the Second Circuit has held that “delay alone is not a sufficient basis for establishing prejudice. Rather, it must be shown that delay will result in the loss of evidence, create increased difficulties of discovery or provide greater opportunity for fraud and collusion.” Henry, 108 F.4th at 52-53. Here, Plaintiff will suffer prejudice if his motion is denied because without the entry of default judgment, Plaintiff could be left without the ability to recover against Defendants for the claims set forth in the Complaint. See Grp. One, 625 F. Supp. 3d at 60 (“Plaintiff will suffer prejudice if its motion is denied because Plaintiff will be unable to recover against Defendants for the claims adequately set forth in its Amended Complaint.” (citations omitted)); Sola Franchise Corp., 2015 WL 1299259, at *15 (“denying this motion would be prejudicial to [p]laintiffs ‘as there are no additional steps available to secure relief in this Court’ ” (citation omitted)).

Therefore, the undersigned respectfully recommends that all three factors permit entry of a default judgment against Defendants. The Court thus turns to evaluating liability and damages.

V. Liability Under the FLSA and NYLL

A. Statute of Limitations

“As a threshold matter, the Court considers whether Plaintiff's claims are timely under the applicable statutes of limitations.” Jimenez, 744 F. Supp. 3d at 245 (citation omitted); see also Borja v. MSK Rest. Corp., No. 22-CV-6178 (EK) (VMS), 2025 WL 951402, at *9, 12 (E.D.N.Y. Mar. 13, 2025) (examining statute of limitations in the context of an FLSA and NYLL default judgment), report and recommendation adopted, 2025 WL 948122 (E.D.N.Y. Mar. 29, 2025).

“The limitations period for FLSA claims is two years, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” Coreas v. Angeles Beauty Salon Inc., No. 25-CV-604 (GRB) (JMW), 2026 WL 1471388, at *7 (E.D.N.Y. Apr. 22, 2026) (quoting Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 319 (2d Cir. 2021)), report and recommendation adopted, Text Order, dated May 20, 2026; see also 29 U.S.C. § 255(a). “When a defendant defaults, the violation is considered ‘willful’ and the three-year statute of limitations applies.” Chen, 2023 WL 2583856, at *8. (citations omitted); see also Jimenez, 744 F. Supp. 3d at 245 (citation omitted) (same).

Here, because Defendants defaulted, “willfulness” can be presumed. See Chen, 2023 WL 2583856, at *8; Jimenez, 744 F. Supp. 3d at 245. Moreover, the Complaint alleges, inter alia, that “Defendants willfully and maliciously violated the minimum wage and overtime laws by paying in cash in order to hide evidence of their wage theft practices.” Dkt. No. 1 ¶ 27; see also id. ¶¶ 24-28 (additional allegations of willful misconduct); Borja, 2025 WL 951402, at *9 (holding that the three-year statute of limitations applied because Defendants “knowingly and willfully failed to pay Plaintiff the proper overtime premium rate of time and one half of regular hourly rate for each hour exceeding forty (40) hours per workweek[,]” “knowingly and willfully operated their business with a policy of not paying Plaintiff, FLSA Collective Plaintiffs, and Class Members their proper overtime due to an improper fixed salary and time shaving” and “showed a willful disregard for the provisions of the FLSA by illegally retraining all gratuities through its owner”). Therefore, the three-year statute of limitations under the FLSA applies. Plaintiff commenced this action on April 24, 2025. Dkt. No. 1. As a result, any FLSA claims arising on or after April 24, 2022 are timely.

“Conversely, the [NYLL] provides for a six-year statute of limitations for wage-and-hour claims.” Coreas, 2026 WL 1471388, at *7 (citing N.Y. Lab. L. §§ 198(3), 663(3)). “The limitations period begins to run when the employee performs the work for which he was allegedly underpaid.” Id. (citations omitted). Accordingly, any NYLL claims occurring on or after April 24, 2019 are timely here. See Kim v. Kini LIC Corp., 806 F. Supp. 3d 277, 302 (E.D.N.Y. 2025) (adopting report and recommendation, and holding that “[u]nder the NYLL, the statute of limitations is six years” (citing N.Y. Lab. Law § 663(3)); Rodriguez v. MRC Bakery Corp., 802 F. Supp. 3d 393, 419 (E.D.N.Y. 2025) (order adopting report and recommendations, and holding same (citing N.Y. Lab. Law § 663(3)).

Although Plaintiff argues that “back pay under the [NYLL] should be calculated from the start of Plaintiff's employment, which was less than six years from the filing date,” (Dkt. No. 19-2 at 14), Plaintiff's start date in February 2017 is beyond the three-year limitations period under the FLSA and the six-year limitations period of the NYLL. Nonetheless, Plaintiff's damages chart calculates damages from April 25, 2019 until April 2, 2023. Dkt. No. 19-7. As discussed above, April 25, 2019 is within six years of the commencement of this action. Therefore, because the Court has supplemental jurisdiction over the NYLL claims, the undersigned respectfully recommends that Plaintiff's damages from April 25, 2019 to April 2, 2023 are recoverable. See Rodriguez, 802 F. Supp. 3d at 419-20 (“Although the statute of limitations bars recovery under the FLSA for his time worked prior to June 27, 2021, the entire period of Plaintiff's employment is recoverable under the NYLL's six-year statute of limitations”). The exact measure of Plaintiff's damages are further discussed below.

B. Whether Plaintiff Is Covered by the FLSA

The FLSA is to be “construed ․ liberally” because its “broad coverage is essential to accomplish the goal of outlawing from interstate commerce goods produced under conditions that fall below minimum standards of decency.” Chen, 2023 WL 2583856, at *9 (quoting Tony & Susan Alamo Found. v. Sec'y of Lab., 471 U.S. 290, 296 (1985) (internal quotation marks and citation omitted)). To plead a cause of action under the FLSA, a plaintiff must establish: “(1) Defaulting Defendants are employers subject to the FLSA; (2) Plaintiff[ ] [is an] employee[ ] within the meaning of the FLSA; (3) [Plaintiff's] employment relationship[ ] w[as] not exempted from the statute; and (4) a violation of one of the statute's provisions.” Cao v. Wedding in Paris LLC, 727 F. Supp. 3d 239, 273 (E.D.N.Y. 2024) (Kovner, J.) (citation omitted) (adopting report and recommendation).

1. Whether Defendants Masal Cafe and Masal Plus Café Are Employers Under the FLSA

“The FLSA broadly defines an employer as ‘any person acting directly or indirectly in the interest of an employer in relation to an employee.’ ” Kim, 806 F. Supp. 3d at 302 (quoting 29 U.S.C. § 203(d)). The term “person” in this definition may be an “individual” or “any organized group of persons,” including corporations. Id. (quoting 29 U.S.C. § 203(a)).

Further, “[a] defendant is an employer under the FLSA if it meets the criteria for either enterprise or individual coverage.” Chen, 2023 WL 2583856, at *9 (citation omitted); see also Kim, 806 F. Supp. 3d at 303 (quoting Chen, 2023 WL 2583856, at *9). As the Second Circuit has explained,

[t]he FLSA requires that employers pay a premium or overtime wage of ‘not less than one and one-half times the regular rate’ for hours worked in excess of forty hours in a single work-week if an employee either: 1) ‘is engaged in commerce or in the production of goods for commerce,’ or 2) ‘is engaged in an enterprise engaged in commerce or in the production of goods for commerce.’ The two categories are commonly referred to as ‘individual’ and ‘enterprise’ coverage, respectively.

Jacobs v. N.Y. Foundling Hosp., 577 F.3d 93, 96 (2d Cir. 2009) (footnote omitted) (first quoting 29 U.S.C. § 207(a)(1) (emphasis added); and then quoting Tony & Susan Alamo Found., 471 U.S. at 295 n.8); see also Kim, 806 F. Supp. 3d at 302 (“The FLSA applies to employees who were either (1) engaged in commerce or the production of goods for commerce or (2) employed in an enterprise engaged in commerce or in the production of goods for commerce.” (citing 29 U.S.C. §§ 206(a), 207(a)). As demonstrated below, enterprise coverage is met here.³

“Enterprise coverage has been interpreted broadly by the courts.” Ethelberth, 91 F. Supp. 3d at 355. “So long as the employer achieves an annual gross business volume of $500,000 or more, ‘all of the employer's employees are covered under [FLSA] as long as at least some handle, sell, or otherwise work on goods or materials that have been moved in or produced for commerce.” Id. (first quoting Jones v. E. Brooklyn Sec. Servs. Corp., No. 11-CV-1021 (JG) (SMG), 2012 WL 3235784, at *4 (E.D.N.Y. Aug. 7, 2012); and then quoting 29 U.S.C. § 203(s)(1)(A)).

The “moved in or produced for commerce” portion of enterprise coverage is met where employees “merely handled supplies or equipment that originated out-of-state”; e.g., “[e]nterprise coverage ‘applies so long as some of the employees wear uniforms or use items such as radios, books, flashlights, clipboards, brooms, bags, and cleaning supplies that have moved in interstate commerce.’ ” Ethelberth, 91 F. Supp. 3d at 355 (citations omitted); see also Rodriguez, 802 F. Supp. 3d at 421 (discussing how “multiple courts in this district have held that similarly conclusory allegations of enterprise coverage may be accepted on a motion for default judgment where it may be inferred from the type of business enterprise that it was engaged in interstate commerce” (citation omitted)); Kim, 806 F. Supp. 3d at 303 (“Local activities may meet this test if ‘an enterprise employs workers who handle goods or materials that have moved or been produced in interstate commerce.’ ” (citation omitted)).

Here, Defendants Masal Cafe and Masal Plus Café meet the enterprise coverage test. First, Plaintiff alleges that during the relevant time period, 2022 to 2023, “Defendants, jointly, had a gross annual volume of sales not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated).” Dkt. No. 1 ¶ 35 (alleging from “[i]n each year from 2020 to 2024”); Dkt. No. 19-3 ¶ 15 (asserting “the gross level of sales for each restaurant on its own exceeded $500,000.00 in each 2021, 2022 and 2023, and combined as a joint enterprise would surely exceed $500,000.00 in gross revenue”). Additionally, Defendants were directly engaged in interstate commerce by dealing with food, utensils, and other supplies that were moved in interstate commerce, and Plaintiff himself regularly handled goods in interstate commerce, such as food, utensils and cleaning supplies. Id. ¶¶ 36, 42.

Therefore, the undersigned respectfully recommends that Plaintiff has sufficiently alleged Defendants Masal Cafe and Masal Plus Café are employers subject to the FLSA from the years 2022 to 2023.

2. Defendant Karakus Is an Employer Under the FLSA

Defendant Karakus is liable as an employer under the FLSA. For an individual, “[t]he underlying inquiry in determining ‘employer’ status is whether the individual possessed operational control over employees: ‘control over a company's actual “operations” in a manner that relates to a plaintiff's employment.’ ” Tapia v. BLCH 3rd Ave. LLC, 906 F.3d 58, 61 (2d Cir. 2018) (quoting Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013)). “A person exercises operational control over employees if his or her role within the company, and the decisions it entails, directly affect the nature or conditions of the employees’ employment.” Irizarry, 722 F.3d at 110.

In determining whether an individual is an “employer” and exercises adequate control, the Court is guided by the “economic reality” test set forth in Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984). Rodriguez, 802 F. Supp. 3d at 393. Under this test, the Court considers “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.” Id. (internal citations and quotations omitted). “The ‘economic reality’ test encompasses the totality of circumstances, no one of which is exclusive.” Id. (first quoting Irizarry, 722 F.3d at 106 (citation omitted); and then quoting Brito v. Marina's Bakery Corp., No. 19-CV-828 (KAM) (MMH), 2022 WL 875099, at *6 (E.D.N.Y. Mar. 24, 2022) (“The test looks at the totality of the circumstances, and no individual factor is dispositive.”).

Here, during the relevant time period, Defendant Karakus owned and operated Defendants Masal Cafe, and Masal Plus Café. Dkt. No. 1 ¶¶ 12, 13, 29. Further, all the Carter factors are met: Defendant Karakus had (1) “the authority to hire and fire employees and in fact did so” (id. ¶ 18); (2) “established the schedule of the Plaintiff” (id. ¶ 15) and “directly set and authorized the pay practices at issue in this lawsuit” (id. ¶ 16); (3) “determined the wages and compensation of employees of Defendants, including Plaintiff” (id. ¶ 14); and (4) “reviewed and controlled the financial records at each restaurant including payroll records and documents recording Plaintiff's wages and hours worked” (id. ¶ 22). See also Dkt. No. 19-3 ¶¶ 4-14 (same).

Therefore, the undersigned respectfully recommends that Plaintiff's allegations are sufficient to establish Defendant Karakus as an employer under the FLSA. See Carter, 735 F.2d at 12.

3. Defendants are Jointly and Severally Liable

Plaintiff alleges that Defendants were Plaintiff's employers throughout his employment, rendering Defendants jointly and severally liable for the claims he brings. Dkt. No. 1 ¶¶ 30-38.

“ ‘[A]n employee may be jointly employed by two or more employers,’ and ‘[i]n such cases, joint employers are subject to joint and several liability for FLSA violations.’ ” Rodriguez, 802 F. Supp. 3d at 420-21 (quoting Michalow v. E. Coast Restoration & Consulting Corp., No. 09-CV-5475 (SLT) (RML), 2017 WL 9400690, at *4 (E.D.N.Y. July 11, 2017), report and recommendation adopted, 2018 WL 1559762 (E.D.N.Y. Mar. 31, 2018) (internal quotation marks omitted)); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 37 (E.D.N.Y. 2015) (“As the Court has found that [defendants] were jointly [plaintiff's] employers, each [d]efendant is jointly and severally liable under the FLSA and the NYLL for any damages award made in [plaintiff's] favor.” (citations omitted)); see also Cavalotti v. Daddyo's BBQ, Inc., No. 15-CV-6469 (PKC) (VMS), 2018 WL 5456654, at *11 (E.D.N.Y. Sep. 8, 2018) (same), report and recommendation adopted, Text Order, dated Sep. 25, 2018; Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 685 (S.D.N.Y. 2011) (finding allegations that an individual defendant “was an owner, partner, or manager,” coupled with his default, were sufficient to qualify him as an employer under state and federal law for imposition of joint and several liability); Moon v. Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002) (“The overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.”) (internal quotation marks and citations omitted).

Accordingly, the undersigned respectfully recommends that Defendants are found jointly and severally liable for Plaintiff's claims. See Rodriguez, 802 F. Supp. 3d at 420-21 (discussing joint and several liability over two or more employers).

4. Whether Plaintiff Is an Employee Under the FLSA

An “employee” is likewise broadly defined in the FLSA as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). Plaintiff alleges that Defendants employed Plaintiff as a “food runner, server and general laborer.” Dkt. No. 1 ¶ 41. Plaintiff's allegations satisfy the definition of employee under the FLSA for the purposes of this motion. See Chocolatl v. Rendezvous Cafe, Inc., No. 18-CV-3372 (CBA) (VMS), 2019 WL 5694104, at *5 (E.D.N.Y. Aug. 16, 2019) (“Plaintiff's unrebutted allegations in his Complaint that he worked as a cook (a non-tipped position) at Rendezvous ․ are sufficient to establish that he was a non-exempt employee.” (citation omitted)), report and recommendation adopted, 2020 WL 1270891 (E.D.N.Y. Mar. 17, 2020). Accordingly, the undersigned respectfully recommends that Plaintiff is a covered employee under the FLSA.

C. Whether Plaintiff Is Covered by the NYLL

“To recover under the NYLL, Plaintiff must first ‘prove that he was an employee and that Defendants were employer[s] as defined by the statute and accompanying regulations.’ ” Sanchez, 643 F. Supp. 3d at 368-69 (adopting report and recommendation and quoting Ethelberth, 91 F. Supp. 3d at 360). “Under the [NYLL], the definition of employee and employer are nearly identical as those under the FLSA, though the NYLL does not require that a defendant achieve a certain minimum in annual sales or business in order to be subject to the law.” Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047 (ENV) (MMH), 2024 WL 4309775, at *8 (E.D.N.Y. Sep. 26, 2024) (citations omitted), report and recommendation adopted, Text Order, dated Jan. 15, 2025; see also Sanchez, 643 F. Supp.3d at 369 (holding “[t]he NYLL's definitions [of employee and employer] are nearly identical to the FLSA's, except that “the NYLL's definition of an employer is ‘broader than that contained in the FLSA.’ ” (citations omitted)). Further, the NYLL lacks the FLSA's interstate commerce requirement. See Gangadharan v. GNS Goods & Servs., No. 18-CV-7342 (KAM) (MMH), 2022 WL 824135, at *11 (E.D.N.Y. Mar. 18, 2022) (citing Herrera v. Tri-State Kitchen & Bath, Inc., No. 14-CV-1695 (ARR) (MDG), 2015 WL 1529653, at *4 (E.D.N.Y. Mar. 31, 2008) (adopting report and recommendation)).

Here, because Plaintiff is an employee and Defendants are employers under the FLSA, the undersigned respectfully recommends the same under the NYLL. See Sanchez, 643 F. Supp. 3d at 369 (“Based on the allegations set forth in the Complaint and discussed above, Plaintiff has sufficiently pled that he was an employee of Defendants and that they were employers within the meaning of Section 190 of the NYLL”); see also Tzilin, 2024 WL 4309775, at *8 (“The Court has already determined that Defendants are Plaintiffs’ employer within the meaning of the FLSA ․ ‘Because the NYLL's definition of “employer” is coextensive with the FLSA's definition ․ Defendants are Plaintiff's employers within the meaning of the NYLL’ as well. Therefore, Plaintiffs qualify for the protections of the NYLL.” (citations omitted)).

D. Whether Any FLSA or NYLL Exemption Applies

Even if a plaintiff establishes himself as an employee of a business which meets the criteria for FLSA coverage, he may still be barred from recovery if he falls within one of the FLSA's “litany of exemptions.” See Fermin, 93 F. Supp. 3d at 32 (citation omitted). “Certain categories of employees are exempt from the FLSA's wage and hour requirements—for example, executive, administrative, and professional employees.” Zaldivar v. JANL, Inc., No. 23-CV-1434 (NCM) (LGD), 2025 WL 2413850, at *2 (E.D.N.Y. Aug. 20, 2025) (citing 29 U.S.C. § 213(a)(1)), report and recommendation adopted, 2025 WL 2962731 (E.D.N.Y. Oct. 21, 2025). An employee's “exempt status depends less on his title, and more on the actual duties performed.” McBeth v. Gabrielli Trucks Sales, Ltd., 768 F. Supp. 2d 383, 387 (E.D.N.Y. 2010) (citing Cooke v. Gen. Dynamics Corp., 993 F. Supp. 56, 61 (D. Conn. 1997)). How the plaintiff spent his or her time is a factual question, but whether the employee's activities trigger one of the FLSA's exemptions is a legal one. Isett v. Aetna Life Ins. Co., 947 F.3d 122, 129-30 (2d Cir. 2020). The burden of invoking these exemptions, however, “rests upon the employer.” Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 222 (2d Cir. 2002) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 394 n.11 (1960)).

“The NYLL also provides exemptions for some employees similar to the FLSA.” Sethi v. Narod, 974 F. Supp. 2d 162, 183 (E.D.N.Y. 2013) (first quoting N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (“[A]n employer shall pay employees subject to the exemptions of section 13 of the Fair Labor Standards Act ․ overtime at a wage rate of one and one-half times the basic minimum hourly rate ․”); then citing id. § 142-2.14(c)(4)(ii) (“defining administrative employee”); and then citing id. § 142-2.14(c)(4)(iii) (“defining professional employee”)). “On a motion for a default judgment, ․ a court may find that litigants are not exempt employees if they ‘do not allege any facts that would make them exempt under the FLSA or NYLL.’ ” Borja, 2025 WL 951402, at *12 (quoting Cao, 727 F. Supp. 3d at 275).

Here, because Defendants are in default, they have failed to invoke any exemptions under either the FLSA or NYLL. Plaintiff does not allege facts in the Complaint that render Plaintiff exempt from the FLSA or NYLL. Plaintiff's “work duties required neither discretion nor independent judgment.” Dkt. No. 1 ¶ 43. Indeed, courts in this Circuit routinely find that general laborer positions, similar to Plaintiff's “food runner, server and general laborer” role, are not exempt under the statutes. See, e.g., Ramirez v. Nahid Furniture Inc, No. 24-CV-4907 (RER) (MMH), 2026 WL 759236, at *7 (E.D.N.Y. Mar. 17, 2026) (finding that the plaintiff employed as a delivery person, assembler, and general laborer at a furniture store qualified for the protections of the FLSA), report and recommendation adopted, 2026 WL 881371 (E.D.N.Y. Mar. 31, 2026); Rodriguez, 802 F. Supp. 3d at 424 (“In fact, Plaintiff's description of his ‘general helper’ duties at MRC Bakery—consisting of various types of manual tasks[ ]—suggest he would be non-exempt in any event, even in the absence of default” (citations omitted)); Zabrodin, 702 F. Supp. 3d at 118 (“Here, Plaintiffs allege that Zabrodin worked at Silk Restaurant as a ‘server and general worker,’ and Gashimli worked there as a ‘bartender and general worker.’ As a matter of law, such duties do not exempt employees from the FLSA's minimum wage or overtime protections.” (citation omitted)); Fermin, 93 F. Supp. 3d at 32 (holding “the fact that Plaintiffs’ respective jobs as waiter, kitchen helper/food preparer, cook and dishwasher all constitute non-exempt employment under the FLSA”).

Thus, the undersigned respectfully recommends that Plaintiff is a non-exempt employee under the FLSA and NYLL based on Defendants’ default. See Borja, 2025 WL 951402, at *12 (quoting Cao, 727 F. Supp. 3d at 275); see also Rodriguez, 802 F. Supp. 3d at 424 (finding in an action involving a default judgment motion that no statutory exemption applies because “Plaintiff does not allege any facts that would make him exempt under the FLSA or NYLL”).

E. Violations of the FLSA and NYLL

1. Overtime Wage Claims (Claims 1 and 3)

Plaintiff seeks reimbursement for the overtime wages that he should have received pursuant to the FLSA and NYLL. See Dkt. No. 1 ¶¶ 69-72; 80-83; see also Dkt. No. 19-3 ¶¶ 25, 36, 37. The FLSA requires that “ ‘for a workweek longer than forty hours,’ an employee working ‘in excess of’ forty hours shall be compensated for those excess hours ‘at a rate not less than one and one-half times the regular rate at which [she or] he is employed.’ ” DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 88 (2d Cir. 2013) (quoting 29 U.S.C. § 207(a)(1)). “The NYLL includes the same requirement, providing that ‘[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate’ for ‘working time over 40 hours’ during ‘each work week.’ ” Rodriguez, 802 F. Supp. 3d at 425 (quoting N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2).

“[I]n order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)(1)). “Plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013); see also Fermin, 93 F. Supp. 3d at 44-45 (finding allegations that the plaintiff worked over 40 hours per week for a specific time period sufficient to establish an overtime claim). “If the defendant has defaulted ․ the court may presume that the plaintiff's recollection and estimates of the hours he worked are accurate.” Jimenez, 744 F. Supp. 3d at 249 (citing Cabrera v. Canela, 412 F. Supp. 3d 167, 181 (E.D.N.Y. 2019)); see also Perry v. High Level Dev. Contracting & Sec. LLC, No. 12-CV-2180 (AMD)(PK), 2022 WL 1018791, at *3 (E.D.N.Y. Mar. 16, 2022) (“In the context of a motion for default judgment on FLSA and NYLL claims, ‘the plaintiff's recollection and estimates of hours worked are presumed to be correct.’ ” (citation omitted)), report and recommendation adopted, 2022 WL 1017753 (E.D.N.Y. Apr. 5, 2022); Ramirez, 2026 WL 759236, at *7 (quoting Perry, 2022 WL 1018791, at *3).

Here, Plaintiff has established that Defendants violated the FLSA and NYLL overtime requirement. First, Plaintiff alleges that from April 25, 2019 through August 2022, Plaintiff typically worked over forty hours per week, to wit, “between forty-two (42) and forty-eight (48) hours per workweek.” Dkt. No. 1 ¶ 47; see also Dkt. No. 19-3 ¶ 21 (declaring that he typically works “forty-five (45) hours per week”).⁴

From April 25, 2019 through February 6, 2022, Defendants allegedly paid Plaintiff “the same hourly rate for all hours worked, including those over forty in a workweek.” Dkt. No. 1 ¶ 50; Dkt. No. 19-3 ¶ 25. Specifically, from April 25, 2019 to February 2020, Plaintiff was paid $14 per hour without a premium for overtime hours; from March 2020 through February 6, 2022, Plaintiff was paid $15 per hour without an overtime premium. Dkt. No. 1 ¶¶ 54-55; Dkt. No. 19-3 ¶¶ 30-31.

Beginning on February 7, 2022, Defendants changed their pay practices in that servers and other tipped employees would receive gratuities left by customers, but their hourly rate was reduced to $10 per hour. Dkt. No. 1 ¶ 59; Dkt. No. 19-3 ¶ 35. But Plaintiff alleges that “Defendants continued to pay its tipped workers the same hourly rate for all hours worked, including those over forty in a work week without an overtime premium.” Dkt. No. 1 ¶ 60; see also Dkt. No. 19-3 ¶ 36.⁵

Therefore, the undersigned respectfully recommends that Plaintiff has established overtime violations under the FLSA and NYLL for the period from April 25, 2019 through August 2022 because he worked more than forty hours per workweek without appropriate overtime compensation.

2. Minimum Wage Claims (Claims 2 and 4)

Under the FLSA and the NYLL, “[a]n employer may not pay an employee less than the statutory minimum wage for each hour the employee worked in any week.” Esquivel, 2023 WL 6338666, at *8 (citing, inter alia, 29 U.S.C. § 206(a); N.Y. Lab. Law § 652(1)). “An employee bringing an action for unpaid minimum wages under the FLSA and the NYLL has the burden of providing that he performed work for which he was not properly compensated.” Id. at *8 (quoting Fermin, 93 F. Supp. 3d at 41 (citation modified)). “A plaintiff may sufficiently establish FLSA or NYLL minimum wage violations through an affidavit or declaration stating the number of hours worked,” and “[i]n the context of a default and where Plaintiffs lack access to the employment records necessary to prove they were not properly compensated, Plaintiffs may meet their burden of relying on recollection alone.” Id. (citations omitted).

“As an initial matter, the Court must determine the applicable minimum wage rates under state, local, and federal law because Plaintiff is entitled to recover whichever minimum wage rate was the highest in any given period of his employment.” Id. (emphasis added) (citations omitted). From April 25, 2019 through April 2, 2023, the federal minimum wage was $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). By contrast, under New York law, Plaintiff was entitled to a minimum wage of $15 per hour for the same time period because he worked in New York City. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1(a)(1)(i) (stating that “[t]he basic minimum hourly wage rate shall be, for each hour worked in ․ New York City for ․ Large employers of 11 or more employees ․ $15.00 per hour on or after December 31, 2018” to December 31, 2023).

Here, Plaintiff has demonstrated that he worked in Brooklyn, New York during the relevant time period of April 25, 2019 through April 2, 2023 (Dkt. No. 1 ¶¶ 10, 11, 45, 46; Dkt. No. 22), and “Defendant[s] had over 11 employees” (id. ¶ 39). Therefore, Plaintiff is entitled to recover the higher minimum wage under New York state law of $15 per hour. See Kim, 806 F. Supp. 3d at 309 (“Because the New York state minimum wage was higher than the federal minimum wage at all points during Plaintiffs’ employment and thus provides for the greater recovery, Plaintiffs are entitled to unpaid wage damages pursuant to the NYLL.” (citations omitted)).

From April 25, 2019 through February 2020, Plaintiff was paid $14 per hour, which is below the $15 minimum wage under New York law. Dkt. No. 1 ¶ 54; Dkt. No. 19-3 ¶ 30. Plaintiff was paid minimum wage from March 2020 through February 6, 2022. Dkt. No. 1 ¶ 55; Dkt. No. 19-3 ¶ 31.

From February 7, 2022 through April 2, 2023, Plaintiff was paid below the minimum wage at $10 per hour, but Plaintiff and other “[s]ervers and other tipped employees would now begin to receive the gratuities left by customers.” Dkt. No. 1 ¶ 59; Dkt. No. 19-3 ¶ 26. “Both the FLSA and NYLL permit an employer to pay a tipped worker a wage below the statutory minimum wage (or the overtime pay to which the employee is entitled), provided that the wage and tips together are at least equivalent to the minimum wage. This deduction is known as a ‘tip credit.’ ” Lorenzo, 2026 WL 494070, at *4 (first citing Shahriar, 659 F.3d at 239-40; and then quoting Inclan v. N.Y. Hosp. Grp., Inc., 95 F. Supp.3d 490, 497 (S.D.N.Y. 2015)); see also Zabrodin, 702 F. Supp. 3d at 120-21 (discussing how the FLSA and NYLL tip credit provisions “permit employers to count tips that certain employees receive against the full minimum wage that the employer would otherwise owe them (citing Shahriar, 659 F.3d at 239-40)). “In other words, the minimum wage (and overtime pay) to which a worker is entitled, can be reduced by the amount of tip credit under New York and federal law.” Lorenzo, 2026 WL 494070, at *4

“Under the FLSA, an employer may not claim a tip credit as to an employee's wages unless the employer has informed that employee of the provisions of the section of the FLSA permitting the tip credit.” Id. (first quoting Inclan, 95 F. Supp. 3d at 497; and then citing 29 U.S.C. § 203(m)). “[W]hile notice under the FLSA need not be in writing, any notice, oral or otherwise, must include:

(i) the amount of cash wage the employer is paying a tipped employee;

(ii) the additional amount claimed by the employer as a tip credit;

(iii) a statement that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;

(iv) a statement that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement; and

(v) a statement that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.

Id. (citing, inter alia, 29 U.S.C. § 203(m)). The tip credit notice provision under the FLSA is “strictly construed.” Id. (citations omitted).

“Similarly, under New York law, employers may pay less than the statutory minimum and claim a tip credit only if certain notice requirements are met.” Id. (first citing N.Y. Comp. Codes R. & Regs, tit. 12, § 146-2.2; and then citing Chichinadze v. BG Bar Inc., 517 F. Supp. 3d 240, 254 (S.D.N.Y. 2021)). “To satisfy the NYLL's notice requirement, at the start of employment and upon any change in the employee's hourly rates of pay, the employer ‘shall give each employee written notice of the employee's regular hourly pay rate, overtime hourly pay rate, the amount of tip credit, if any, to be taken from the basic minimum hourly rate, and the regular payday.’ ” Id. (citing N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.2(a)-(b)). NYLL's notice must be provided in English, and the employee's primary language (so long as that language is one of the languages in which the form notice is available on the New York Department of Labor's website). Id. (citations omitted). Finally, unlike the FLSA, the notice must be in writing. Id. (citations omitted).

“Under both the FLSA and the NYLL, the burden is on the employer to show that they have complied with the tip credit requirements.” Villanueva v. 179 Third Ave. Rest. Inc., 500 F. Supp. 3d 219, 234 (S.D.N.Y. 2020) (quoting Valle v. Gordon Chen's Kitchen, LLC, 254 F. Supp. 3d 665, 673 (S.D.N.Y. 2017)), report and recommendation adopted, 2021 WL 2139441 (S.D.N.Y. May 26, 2021).

Plaintiff alleges that “Defendants at all relevant times failed to honor all of the requirements necessary to apply the tip credit to Plaintiff's wages.” Dkt. No. 1 ¶ 66; Dkt. No. 19-3 ¶ 43. Further, Defendant also allegedly “failed to give proper written notice or any proper notice that the Defendants intended to diminish his wages based on his receipt of tips and/or would pay him to the minimum wage if his tips did not meet the required level.” Dkt. No. 1 ¶ 67; Dkt. No. 19-3 ¶ 44. As a result, based upon the unrebutted allegations that Defendants did not comply with the FLSA and NYLL notice requirements for the tip credit, Defendants cannot take the tip credit. Accordingly, the undersigned respectfully recommends that Plaintiff should have been paid the $15 minimum wage when he was paid $10 per hour from February 7, 2022 through April 2, 2023. See Fermin, 93 F. Supp. 3d at 39 (“Here, Mr. Fermin asserts that he was not provided with such notice [of the tip credit under the FLSA and NYLL]․ On the record before the Court, Defendants are not eligible for the tip credit, and the Court will apply the full minimum wage when considering Mr. Fermin's claims.”); see also Villanueva, 500 F. Supp. 3d at 235 (holding in a case involving a default judgment that no tip credit may be applied because “[e]ach Plaintiff receiving tips has averred that Defendants did not provide the requisite notice that tips would be counted against their minimum wage”).

Accordingly, the undersigned respectfully recommends that Defendants should be liable for minimum wage violations of the FLSA and NYLL.

3. Unlawful Tip Retention (Claims 8 and 9)

“Both the FLSA and NYLL contain provisions barring employers from withholding from employees tips that they earn.” Lorenzo, 2026 WL 494070, at *7 (citing Mangahas v. Eight Oranges Inc., 754 F. Supp. 3d 468, 501 (S.D.N.Y. 2024)). The FLSA provides that “[a]n employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.” Id. (first quoting 29 U.S.C. § 203(m)(2)(B); and then citing Van Duser, 2024 WL 4635495, at *1). “New York law similarly prohibits employers from requiring tipped employees to share tips with non-service employees or managers.” Id. (quoting Shahriar, 659 F.3d at 240). Under NYLL § 196-d, “[n]o employer or his agent ․ shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” Id. (quoting N.Y. Lab. Law § 196-d). “By its plain terms, § 196-d bars employers from requiring tipped employees to share tips with employees who do not perform direct customer service.” Id. (quoting Shahriar, 659 F.3d at 240).

Here, Plaintiff alleges that from April 25, 2019 to February 6, 2022, Defendants “confiscated and kept” all of the gratuities left by customers for Plaintiff. Dkt. No. 1 ¶ 51; Dkt. No. 19-3 ¶ 26. Plaintiff estimates that in this time period, he should have received “$200.00 per week in gratuities that were retained by Defendants.” Dkt. No. 19-3 ¶ 27. Although April 25, 2019 through February 2020, Plaintiff was paid below the minimum wage at $14 per hour (Dkt. No. 1 ¶ 54), Defendants are not entitled to any tip credit because Defendants “confiscated and kept” all of Plaintiff's tips during this time period. See Gonzalez v. Hanover Ventures Marketplace LLC, No. 21-CV-1347 (ER), 2024 WL 1157074, at *12 (S.D.N.Y. Mar. 18, 2024) (“Both the NYLL and FLSA prohibit application of any tip credit if the employer does not permit employees to retain all tips” (citation omitted); see also Lorenzo, 2026 WL 494070, at *5 n.9 (holding that the defendants’ improper retention of tips is an “independent reason” that they are not entitled to a tip credit (citing Gonzalez, 2024 WL 1157074, at *12)). Further, Defendants cannot claim the tip credit because Defendants did not provide proper notice of the tip credit under the FLSA and NYLL. Dkt. No. 1 ¶¶ 66-67; see also Fermin, 93 F. Supp. 3d at 39; Villanueva, 500 F. Supp. 3d at 235.

Thus, the undersigned respectfully recommends that Plaintiff has asserted unlawful tip retention claims under FLSA and NYLL.

VI. Damages

As Plaintiff has proven Defendants’ liability for overtime, minimum wage, and tip retention claims, the Court next evaluates damages. “While 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.” Greyhound Exhibitgroup, 973 F.2d at 158 (citations omitted). “Rather, [t]he [C]ourt must be satisfied that [the] [p]laintiff has met the burden of proving damages to the [C]ourt with reasonable certainty.” Balhetchet v. Su Caso Mktg. Inc., No. 19-CV-4475 (PKC) (SJB), 2020 WL 4738242, at *3 (E.D.N.Y. Aug. 14, 2020) (internal quotation marks and citations omitted). “That being said, because under FLSA ‘[t]he burden is on an employer properly to record hours,’ a ‘plaintiff need not compute FLSA damages with precision.’ ” Lopez v. Royal Thai Plus, LLC, No. 16-CV-4028 (NGG) (SJB), 2018 WL 1770660, at *9 (E.D.N.Y. Feb. 6, 2018) (citation omitted), report and recommendation adopted, 2018 WL 1770555 (E.D.N.Y. Apr. 12, 2018). As discussed, “[i]n the context of a motion for default judgment on FLSA and NYLL claims, ‘the plaintiff's recollection and estimates of hours worked are presumed to be correct.’ ” Perry, 2022 WL 1018791, at *3 (citation omitted); see also Ramirez, 2026 WL 759236, at *7 (quoting Perry, 2022 WL 1018791, at *3). “The moving party need only prove ‘that the compensation sought relate to the damages that naturally flow from the injuries pleaded.’ ” Rodriguez, 802 F. Supp. 3d at 428.

For damages, Plaintiff seeks $17,542.50 in unpaid overtime and minimum wages, $17,542.50 in liquidated damages for unpaid overtime and minimum wages, $28,800 for unlawful tip retention, and $28,800 for liquidated damages for unlawful tip retention, for a total of $92,685. Dkt. No. 19-2 at 11-16; Dkt. No. 19-7.⁶ Additionally, Plaintiff seeks attorneys’ fees of $2,362.50, and costs of $825. Dkt. No. 19-2 at 18; Dkt. No. 19-8. Finally, Plaintiff seeks pre-judgment interest, post-judgment interest, and the fifteen percent increase penalty under NYLL § 198(4). Dkt. No. 19-7; Dkt. No. 19-10.⁷

A. Unpaid Overtime and Minimum Wages (Claims 1, 2, 3, and 4)

Plaintiff argues he “is owed $17,542.50 in unpaid wages prior to liquidated damages.” Dkt. No. 19-2 at 13; see also Dkt. No. 19-7.

“The measure of damages in a FLSA or NYLL case is the amount the plaintiff should have been paid minus the amount the plaintiff was actually paid.” Zabrodin, 702 F. Supp. 3d at 122 (citing Ramos v. Guaba Deli Grocery Corp., No. 1:20-cv-4904 (PAE) (JLC), 2021 WL 5563714, at *9 (S.D.N.Y. Nov. 29, 2021)).

“ ‘Under both the FLSA and NYLL, plaintiffs are entitled to overtime compensation of at least one and one-half times their regular hourly rate’ for hours worked in excess of 40 hours per workweek.” Rodriguez, 802 F. Supp. 3d at 428 (first citing Nam v. Ichiba Inc., No. 19-CV-1222 (KAM), 2021 WL 878743, at *6 (E.D.N.Y. Mar. 9, 2021); then citing 29 U.S.C. § 207(a)(1); and then citing N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2).

“To calculate Plaintiff's overtime compensation, the number of hours Plaintiff worked over forty per week is multiplied by 150 percent of the higher of their regular rate of pay, or the applicable minimum wage.” Id. (citing Guthrie v. Rainbow Fencing Inc., No. 21-CV-5929 (KAM) (RML), 2022 WL 18999832, at *5 (E.D.N.Y. Dec. 13, 2022), report and recommendation adopted as modified, 2023 WL 2206568 (E.D.N.Y. Feb. 24, 2023), aff'd, 113 F.4th 300 (2d Cir. 2024)). “The resulting number constitutes the amount of overtime compensation owed to plaintiff on a weekly basis.” Id. (citing Guthrie, 2022 WL 18999832, at *5).

Plaintiff is “ ‘not entitled to recover for the same injury twice’ where the Court has determined [the defendant's] liability under both the FLSA and NYLL.” Kim, 806 F. Supp. 3d at 308 (citations omitted). “[W]here a plaintiff is entitled to damages under both federal and state wage law, a plaintiff may recover under the statute which provides the greatest amount of damages.” Id. (citation omitted). Here, as discussed above, because at all times the New York state minimum wage is greater than the federal minimum wage, Plaintiff is entitled to recover the higher minimum wage under New York law of $15 per hour. See Kim, 806 F. Supp. 3d at 309.

For the period from April 25, 2019 through August 30, 2022, Plaintiff alleges that he should have been paid the “lawful weekly pay” of $712.50, which consists of the New York's minimum wage of $15 per hour times forty hours, plus 150% of $15 minimum wage ($22.50) times the number of hours worked over forty hours, which is five hours. Dkt. No. 19-7.

To determine the “actual weekly pay,” Plaintiff's actual pay is multiplied by the number of hours Plaintiff worked. Plaintiff alleges that from April 25, 2019 through February 2020, Plaintiff was paid an hourly rate of $14 without an overtime premium. Dkt. No. 19-3 ¶ 30. From March 2020 through February 6, 2022, Plaintiff was paid an hourly rate of $15 without an overtime premium. Id. ¶ 31. From April 25, 2019 through August 2022, Plaintiff typically worked forty-five hours per week. Id. ¶ 21.

Beginning August 31, 2022 and lasting through the end of his employment on April 2, 2023, Plaintiff typically worked seventeen hours per week. Id. ¶ 24. From February 7, 2022 to April 2, 2023, Plaintiff was actually paid an hourly rate of $10 per hour (id. ¶ 35), but Plaintiff should have been paid the $15 minimum wage. See Zabrodin, 702 F. Supp. 3d at 118 (“The FLSA and NYLL each require an employer to pay an employee at least a minimum hourly rate for each hour the employee works”); see also Esquivel, 2023 WL 6338666, at *8 (“Plaintiff is entitled to recover whichever minimum wage rate was the highest in any given period of his employment.” (emphasis added) (citations omitted)).

As discussed above, Defendants are not entitled to any tip credit at any point in time because Defendants never provided proper notice of the tip credit under the FLSA and NYLL. Dkt. No. 1 ¶¶ 66-67; see also Fermin, 93 F. Supp. 3d at 39; Villanueva, 500 F. Supp. 3d at 235.

The calculations for the “lawful weekly pay,” and the “actual weekly pay” are set forth in the chart below.

Tabular or graphical material not displayable at this time.

The “underpayment per week” is calculated by the “lawful weekly pay” minus the “actual weekly pay.” See Zabrodin, 702 F. Supp. 3d at 122 (“The measure of damages in a FLSA or NYLL case is the amount the plaintiff should have been paid minus the amount the plaintiff was actually paid.” (citation omitted)). The “underpayment per week” is then multiplied by the number of weeks in the paid period to determine the “unpaid wages.” The “unpaid wages” are then added together to arrive at the sum total, which is Plaintiff's requested amount of $17,542.50. Dkt. Nos. 19-2 at 13; 19-7.

Tabular or graphical material not displayable at this time.

Accordingly, the undersigned respectfully recommends that Plaintiff is entitled to $17,542.50 in unpaid overtime and minimum wages.

B. Unlawful Tip Retention (Claims 8 and 9)

As discussed above, “[b]oth the FLSA and NYLL contain provisions bailing employers from withholding from employees tips that they earn.” Lorenzo, 2026 WL 494070, at *7 (citing Mangahas, 754 F. Supp. 3d at 501). Plaintiff alleges that from April 25, 2019 to February 6, 2022, Defendants “confiscated and kept” all of the gratuities left by customers for Plaintiff. Dkt. No. 1 ¶ 51; Dkt. No. 19-3 ¶ 26. Plaintiff estimates that in this time period, he should have received “$200.00 per week in gratuities that were retained by Defendants.” Dkt. No. 19-3 ¶ 27.

The damages for unlawful tip retention is assessed by multiplying the estimated tips that Defendants unlawfully deducted times the relevant period. See Zabrodin, 702 F. Supp. 3d at 123 (“Gashimli further estimates, however, that Defendants unlawfully deducted $100 per day in tips from him for each of the 65 days in the relevant period for a total of $6,500.”). The following chart summarizes the damages for the unlawful retention of tips, which results in the sum total of Plaintiff's requested amount of $28,800.

Tabular or graphical material not displayable at this time.

Accordingly, the undersigned respectfully recommends that Plaintiff is entitled to $28,800 on his unlawful tip retention claims.

C. Liquidated Damages Under the FLSA and NYLL

“Both the FLSA and NYLL generally provide for double (or ‘liquidated’) damages unless the defendant proves a good faith basis to have believed it was complying with the law.” Zabrodin, 702 F. Supp. 3d at 122 (first citing 29 U.S.C. §§ 216(b), 260; and then citing N.Y. Lab. Law § 663(1)); see also Kim, 806 F. Supp. 3d at 313-14 (same); Rodriguez, 802 F. Supp. 3d at 430 (same). “The plaintiff may not recover ‘duplicative’ liquidated damages (i.e., under both the FLSA and NYLL) for the same course of conduct.” Zabrodin, 702 F. Supp. 3d at 122 (citing Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018)); see also Kim, 806 F. Supp. 3d at 314 (same); Rodriguez, 802 F. Supp. 3d at 430 (same). “In light of the principle that the law providing the greatest recovery will govern, [a p]laintiff may be awarded liquidated damages pursuant to the NYLL or the FLSA.” Kim, 806 F. Supp. 3d at 314 (quoting Jian Hua Li v. Chang Lung Grp. Inc., No. 16-CV-6722 (PK), 2020 WL 1694356, at *14 (E.D.N.Y. Apr. 7, 2020)). Where defendants have not answered or otherwise appeared, “they have forgone then opportunity to prove good faith” such that liquidated damages should not be imposed. Zabrodin, 702 F. Supp. 3d at 122 (citing Chen, 2023 WL 2583856, at *16); see also Kim, 806 F. Supp. 3d at 314 (“Moreover, in light of Kini LIC's default, Kini LIC has failed to make a showing of good faith.” (citations omitted)).

Plaintiff's compensatory damages are $46,342.50 ($17,542.50 in unpaid overtime and minimum wages plus $28,800 for unlawful retention of tips). Dkt. No. 19-7. Accordingly, the undersigned respectfully recommends that Plaintiff be awarded “an additional equal amount as liquidated damages,” which brings the total to Plaintiff's requested amount of $92,685. Kim, 806 F. Supp. 3d at 314 (quoting Almighty Cleaning, 784 F. Supp. 2d at 125).

D. Pre-Judgment Interest

“Though the FLSA does not permit awarding pre-judgment interest in addition to liquidated damages, the NYLL does.” Kim, 806 F. Supp. 3d at 314 (citing Fermin, 93 F. Supp. 3d at 48). “To avoid giving the plaintiff a windfall, however, courts award pre-judgment interest only on the compensatory damages award and not on the liquidated damages award.” Id. (citing Fermin, 93 F. Supp. 3d at 49). Pre-judgment interest under the NYLL is 9 percent per year. Id. (first citing CPLR § 5004; and then citing Zabrodin, 702 F. Supp. 3d at 124). “For cases where damages were incurred at various times, the Court may compute interest either upon each item from the date it was incurred or upon all the damages from a single reasonable intermediate date.” Id. (citing CPLR § 5001(b)). “In wage and hour cases, courts often use the midpoint of the plaintiff's employment within the limitations period” as the single reasonable intermediate date. Catzin v. Thank You & Good Luck Corp., No. 15-CV-7109 (ALC), 2022 WL 2116682, at *2 (S.D.N.Y. June 13, 2022) (citing Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 93 (E.D.N.Y 2012)); see also Rodriguez, 802 F. Supp. 3d at 434 (quoting Catzin, 2022 WL 2116682, at *2); Kim, 806 F. Supp. 3d at 315 (setting an intermediate date that “marks the halfway point in [plaintiff's] employment with [defendant] during the relevant period”).

For ease of calculation and transparency, the undersigned respectfully recommends that the Court compute pre-judgment interest upon all the damages from a single reasonable intermediate date. Here, as discussed, Plaintiff may recover beginning on April 24, 2019 and ending on April 2, 2023 (even though Plaintiff's damages chart seeks damages from April 25, 2019 until April 2, 2023 (Dkt. No. 19-7)). See Dkt. No. 1; Kim, 806 F. Supp. 3d at 302 (citing N.Y. Lab. Law § 663(3)); Rodriguez, 802 F. Supp. 3d at 419 (citing N.Y. Lab. Law § 663(3)). Thus, the midpoint between April 24, 2019 and April 2, 2023 is April 12, 2021.

Pre-judgment interest is calculated using the following formula: “(total compensatory damages due to plaintiff) multiplied by (.09/365) multiplied by (number of days from midpoint date to the date the Clerk of Court enters judgment).” Kim, 806 F. Supp. 3d at 315 n.23 (citing Morales v. Los Cafetales Rest. Corp., No. 21-CV-1868 (AMD) (RER), 2023 WL 7684775, at *7 n.6 (E.D.N.Y. Oct. 12, 2023), report and recommendation adopted, 2023 WL 8021460 (E.D.N.Y. Nov. 20, 2023)). Plaintiff's compensatory damages are $46,342.50 ($17,542.50 in unpaid overtime and minimum wages plus $28,800 for unlawful retention of tips). Here, the “per diem” interest rate is $11.43 ($46,342.50 total compensatory damages times (.09/365)). See Kim, 806 F. Supp. 3d at 315 n.23 (“Per diem interest is calculated as follows: Total Compensatory Damages ($16,813.50) × (0.09/365) = $4.14 per diem”).

Accordingly, the undersigned respectfully recommends that Plaintiff be awarded $11.43 per diem multiplied by the number of days from the midpoint date of April 12, 2021 to the date the Clerk of Court enters judgment.

E. Post-Judgment Interest

Plaintiff requests post-judgment interest under 28 U.S.C. § 1961. Dkt. No. 19-10 at 2. “The very language of 28 U.S.C. § 1961 ensures that an award of post-judgment interest is mandatory in any civil case where money damages are recovered.” Kim, 806 F. Supp. 3d at 316 (first quoting Duffy v. Oyster Bay Indus., Inc., No. 10-CV-3205 (ADS) (ETB), 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report and recommendation adopted, 2011 WL 2259749 (E.D.N.Y. June 2, 20211); and then citing Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015)). Under 28 U.S.C. § 1961, interest is calculated “from the date of the entry of judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar year preceding[ ] the date of the judgment.” Kim, 806 F. Supp. 3d at 316 (first quoting Cabrera v. Canela, 412 F. Supp. 3d 167, 186 (E.D.N.Y. 2019); and then quoting 28 U.S.C. § 1961(a)).

Therefore, the undersigned respectfully recommends that Plaintiff be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Kim, 806 F. Supp. 3d at 316 (citing Fermin, 93 F. Supp. 3d at 52); see also Rodriguez, 802 F. Supp. 3d at 435 (citing Fermin, 93 F. Supp. 3d at 52) (same).

F. Attorneys’ Fees

Plaintiff seeks attorneys’ fees of $2,362.50 reflecting an hourly rate of $375 per hour and 6.3 hours of attorney work. Dkt. No. 19-2 at 18.⁸ Counsel's application is supported by contemporaneous billing records. Dkt. No. 19-8.

“Both the FLSA and NYLL are fee-shifting statutes which entitle a plaintiff to an award of reasonable attorney's fees and costs in wage-and-hour actions.” Kim, 806 F. Supp. 3d at 316 (citing Callari v. Blackman Plumbing Supply, Inc., No. 11-CV-3655 (ADS) (AKT), 2020 WL 2771008, at *6 (E.D.N.Y. May 4, 2020), report and recommendation adopted, 2020 WL 2769266 (E.D.N.Y. May 28, 2020)). “District courts have broad discretion to determine the amount of attorneys’ fees awarded, and the party requesting fees must submit documentation to support its request.” Id. (citation omitted).

“The starting point for determining the presumptively reasonable fee award is the lodestar amount, which is the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Id. (quoting Hennessy v. 194 Bedford Ave Rest. Corp., No. 21-CV-5434 (FB) (RML), 2022 WL 4134502, at *6 (E.D.N.Y. Aug. 8, 2022) (internal citations and quotation marks omitted), report and recommendation adopted, 2022 WL 4134437 (E.D.N.Y. Sep. 12, 2022)).

“Determining the reasonable hourly rate begins by applying the ‘forum rule,’ which requires courts to generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee.” Great Bowery, Inc. v. Royal Beauty Studio Inc., No, 25-CV-3627 (FB) (JAM), 2026 WL 1029641, at *19 (E.D.N.Y. Apr. 16, 2026) (adopting report and recommendation, and quoting Rubin v. HSBC Bank USA, NA, 763 F. Supp. 3d 233, 239 (E.D.N.Y. 2025) (citation modified)). Adjusted for inflation and market conditions, the Court has found recent forum rates in this District “to now be $450-$650 for partners, $300-$450 for senior associates, $150-$300 for junior associates, and $100-$150 for paralegals.” Id. (quoting Rubin, 763 F. Supp. 3d at 244).

Plaintiff's counsel, Colin Mulholland, requests an hourly rate of $375 per hour. Dkt. No. 19-2 at 17. Mr. Mulholland is a solo practitioner who focuses on labor and employment actions in New York City. Id. He was admitted to practice in February 2013. Id. He has been lead counsel on over eighty-four cases in E.D.N.Y., and 128 cases in S.D.N.Y. Id. Accordingly, the requested hourly rate of $375 for counsel Colin Mulholland is reasonable. See Ramirez, 2026 WL 759236, at *14 (awarding $375 hourly rate for Plaintiff's counsel Colin Mulholland); Cisneros v. Zoe Constr. Corp., No. 21-CV-6579 (DG) (CLP), 2023 WL 5978702, at *13 (E.D.N.Y. Aug. 10, 2023) (same), report and recommendation adopted, Text Order, dated Aug. 31, 2023; Cruz v. O & M Pizza Corp., No. 20-CV-5057 (AMD)(CLP), 2022 WL 3448661, at *12 (E.D.N.Y. July 22, 2022) (same), report and recommendation adopted, 2022 WL 3446332 (E.D.N.Y. Aug. 17, 2022).

Further, 6.3 attorney hours expended on an FLSA and NYLL default judgment case is reasonable. See Dkt. No. 19-8; see also Ramirez, 2026 WL 759236, at *14 (finding 8.5 hours reasonable); Cisneros, 2023 WL 5978702, at *13 (finding 8.7 hours worked reasonable); Cruz, 2022 WL 3448661, at *12 (finding nine hours reasonable).

Accordingly, the undersigned respectfully recommends an award of $2,362.50 for attorneys’ fees.

G. Costs

Plaintiff seeks $825 in costs, consisting of $405 for the filing fee and $420 for service of process. Dkt. No. 19-2 at 17; Dkt. No. 19-8.

“Under both the FLSA and NYLL, a prevailing plaintiff is entitled to recover costs from the defendant.” Kim, 806 F. Supp. 3d at 322 (first citing 29 U.S.C. § 216(b); and then citing N.Y. Lab. Law § 663(1)). First, Plaintiff's request to recover the filing fee of $405 is verified by the docket. Dkt. No. 1; see also Ramirez, 2026 WL 759236, at *14 (taking judicial notice of the filing fee); Rouse v. Broadway & Cooper LLC, No. 23-CV-7849 (RER) (JAM), 2025 WL 1249605, at *3 (E.D.N.Y. Apr. 30, 2025) (same). Second, $420 for service of process is reasonable because it is supported by an invoice. Dkt. No. 19-8 at 2; see also Ramirez, 2026 WL 759236, at *14 (“Plaintiff also submits invoices to support process server fees of $700.00.”).

Therefore, the undersigned respectfully recommends awarding costs in the amount of $825.

H. Fifteen Percent Increase Penalty

Plaintiff seeks an increase of fifteen percent of any unpaid amount of the judgment pending after ninety days following the entry of judgment under NYLL § 198(4). Dkt. No. 19-10. Where there is a cause of action under the NYLL,

[a]ny judgment or court order awarding remedies under this section shall provide that if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.

Ramirez, 2026 WL 759236, at *15 (quoting N.Y. Lab. Law § 198(4)). “The increase applies only to damages awarded under state law.” Id. (citation omitted); see also Caisaguano v. Piccola Vennezia Rest. Inc., No. 16-CV-633 (RML), 2025 WL 1272880, at *10 (E.D.N.Y. Mar. 28, 2025) (same).

“Courts in this District have simultaneously awarded post-judgment interest under 28 U.S.C. § 1961 and have held the automatic increase penalty under the NYLL to apply.” Ramirez, 2026 WL 759236, at *15 (first citing, inter alia, Diaz, 2022 WL 4646866, at *12-13; and then citing Leo v. Province Therapeutics, LLC, No. 23-CV-05418 (NJC) (JMW), 2024 WL 2923945, at *6 (E.D.N.Y. May 21, 2024), report and recommendation adopted, 2024 WL 2891798 (E.D.N.Y. June 10, 2024)). “In other words, ‘the one-time, late payment penalty is different in kind from a post-judgment interest award which accrues in perpetuity until the judgment is satisfied,’ and therefore is warranted in this case.” Id. (quoting Diaz, 2022 WL 4646866, at *13).

Therefore, the undersigned respectfully recommends that Plaintiff's damages awarded under the NYLL should be increased by fifteen percent if Defendants fail to timely satisfy the judgment pursuant to NYLL § 198(4). See Ramirez, 2026 WL 759236, at *15.

VII. Conclusion

For the reasons set forth above, the undersigned respectfully recommends that Plaintiff's motion for default judgment be granted in part and denied in part, and that judgment be entered against Defendants, jointly and severally, in the total amount of $92,685.00, which comprises (1) $17,542.50 in unpaid overtime and minimum wages; (2) $17,542.50 in liquidated damages for unpaid overtime and minimum wages; (3) $28,800.00 for unlawful tip retention; and (4) $28,800.00 for liquidated damages for unlawful tip retention.

Further, the undersigned respectfully recommends awarding attorneys’ fees of $2,362.50, costs of $825, pre-judgment interest, post-judgment interest, and the fifteen percent increase penalty under NYLL § 198(4) after ninety days.

Finally, the undersigned respectfully recommends that Plaintiff's fifth, sixth, and seventh causes of action be dismissed without prejudice.

A copy of this Report and Recommendation is being electronically served on Plaintiff's counsel. This Court directs Plaintiff's counsel to serve a copy of this Report and Recommendation by overnight mail and email to Defendants and to file proof of service on ECF by June 8, 2026.

Copies shall be served at the following addresses and email addresses:

Mercy Bakery Cafe LLC d/b/a Masal Cafe

1901 Emmons Avenue

Brooklyn, New York 11235

Berr LLC d/b/a Masal Plus Café

1809 Emmons Avenue

Brooklyn, New York 11235

Selahattin Karakus

1725 Emmons Avenue, Apt. B15

Brooklyn, New York 11235-273

Selahattin Karakus

463 Hopewell Drive

Allentown, Pennsylvania 18104-8505

Email: Sakinajo@yahoo.com; Selkara@hotmail.com; info@masalplus.com; info@masalcafe.com; selkaraus@yahoo.com; and scrobichaud@gmail.com

Any objections to this Report and Recommendation must be filed within fourteen days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge DeArcy Hall. The “failure to object timely to a [magistrate judge]’s report operates as a waiver of any further judicial review of the [magistrate judge]’s decision.” Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (quoting Small v. Sec'y of Health & Hum. Servs., 892 F.2d 15, 16 (2d. Cir. 1989)). Indeed, “a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point.” Stevens v. Duquette, No. 22-1571, 2024 WL 705954, at *1 (2d Cir. Feb. 21, 2024) (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)). Accordingly, the failure to file objections within this timeframe or specify the particular issues to be reviewed precludes further review of this Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 145 (1985) (“a party shall file objections with the district court or else waive right to appeal”); Frego v. Kelsick, 690 F. App'x 706, 709 (2d Cir. 2017) (appellate review barred because plaintiff failed to object to the magistrate judge's report and recommendation pertaining to the claim on which plaintiff now seeks to appeal (citing Caidor, 517 F.3d at 604)).

SO ORDERED.

FOOTNOTES

1.   On May 20, 2026, Plaintiff clarified that the allegation in Paragraph 9 of the Complaint, which stated that Plaintiff was employed from approximately 2021 through April 2, 2023, was a “typo and oversight,” and that Plaintiff was employed by Defendants from February 2017 until April 2023. Dkt. No. 22 ¶ 2.

2.   On June 2, 2026, in response to the Court's directive, Plaintiff filed a letter withdrawing his NYLL spread-of-hours premium claim. Dkt. No. 25. Accordingly, the undersigned respectfully recommends that the spread-of-hours premium claim be dismissed without prejudice.

3.   Individual coverage is not met. A plaintiff can invoke “individual coverage” under the FLSA if he was “engaged in the production of goods for commerce” or otherwise “engaged in commerce.” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 354 (E.D.N.Y. 2015). “As a basic rule, ‘if [the plaintiff] did not have any contact with out-of-state customers or businesses, he cannot be individually covered under the FLSA.’ ” Id. (citation omitted). First, there is no evidence that Plaintiff, a “food runner, server and general laborer” for Defendants’ restaurants, was “engaged in the production of goods for commerce.” See Santacruz v. Blok Chocolatier LLC, No. 19-CV-544 (EK) (SJB), 2021 WL 4341103, at *4 (E.D.N.Y. June 23, 2021) (“Santacruz made chocolate, but the Complaint does not describe where the chocolates were sold, whether they were shipped out of state, or even from where the ingredients came. As a result, the Court cannot conclude Santacruz was involved in the production of goods for interstate commerce.”), report and recommendation adopted, 2021 WL 4340963 (E.D.N.Y. Sep. 23, 2021). Second, as for “engaged in commerce,” while the Complaint alleges “Plaintiff was individually involved in interstate commerce through the processing of credit card transactions on behalf of the business” (Dkt. No. 1 ¶ 37), it does not allege the requisite “regularity and frequency” of those transactions. See Kim v. J&J Safetymate Corp., No. 22-CV-1070 (OEM) (TAM), 2024 WL 734130, at *4-5 (E.D.N.Y. Feb. 2, 2024) (“Having reviewed the record as a whole, the Court finds that ‘simply alleging that a portion of [D]efendant's business was by credit card transaction,’ and that Plaintiff's job involved processing such transactions, is insufficient to establish that Plaintiff's processing of credit card transactions was a substantial part of his work.”), report and recommendation adopted, 2024 WL 730491 (E.D.N.Y. Feb. 22, 2024)).

4.   The time period alleged in the Complaint is “[f]rom February 2017 through August 2022.” Dkt. No. 1 ¶ 47; see also Dkt. No. 22. But as discussed above, the earliest recoverable period based on the NYLL statute of limitations is April 24, 2019 (Kim, 806 F. Supp. 3d at 302; Rodriguez, 802 F. Supp. 3d at 419), and Plaintiff requests damages starting from April 25, 2019. Dkt. No. 19-7.

5.   Plaintiff does not seek overtime wages after August 2022 until employment ended in April 2023. Dkt. No. 19-2 at 13 (“Plaintiff is owed overtime wages until August of 2022.”); Dkt. No. 19-3 ¶ 24 (“From September 2022 to the end of my employment, my scheduled was reduced to one to two days a week for approximately eight to ten hours per shift. During this period[,] I typically worked seventeen (17) hours per week.”).

6.   Plaintiff's original calculation of spread of hours damages of $4,320 and liquidated damages for spread of hours of $4,320 appears to be from an arithmetic error. Dkt. Nos. 19-2 at 16; 19-7. Using $4,320 for spread of hours and the liquidated damages for the same, the total damages would total $101,324 instead of $103,065. Dkt. No. 19-7. Further, the sum total for the column for spread of hours pay ($1,080 plus $240 plus $1,290 plus $1,560 plus $150 plus $870) totals $5,190, not $4,320. Id.But as noted above, on June 2, 2026, Plaintiff conceded that his claims for spread of hours be omitted from the default judgment application. Dkt. No. 25. Accordingly, the total for damages is Plaintiff's requested amount of $103,065 minus the requested $5,190 for spread of hours, minus $5,190 for the liquidated damages on the spread of hours, which equals $92,685. Dkt. No. 19-7.

7.   Plaintiff's damages calculations chart computes pre-judgment interest as $5,637.35, which brings the sum total of damages to $108,702.35. Dkt. No. 19-7. The total damages in the proposed judgment is $106,252.50. Dkt. No. 19-10. In any event, the sum total of pre-judgment interest need not be calculated yet because final judgment has not be entered.

8.   Plaintiff's brief states “$2,362.00” on page 17, and “$2,362.50” on page 18. Dkt. No. 19-2 at 17, 18. The contemporaneous billing records reflect $2,362.50. Dkt. No. 19-8.

JOSEPH A. MARUTOLLO United States Magistrate Judge